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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD A. BENNINGER
Appellant No. 605 MDA 2016
Appeal from the Judgment of Sentence March 23, 2016
In the Court of Common Pleas of Columbia County
Criminal Division at No: CP-19-CR-0001066-2014
BEFORE: LAZARUS, STABILE, and RANSOM, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 13, 2017
Appellant, Harold A. Benninger, appeals from the March 23, 2016
judgment of sentence entered in the Court of Common Pleas of Columbia
County (“trial court”) following his conviction of possession of certain
chemicals with intent to manufacture a controlled substance (liquefied
ammonia gas; precursors and chemicals) (“PWID”).1 In the brief filed by his
counsel in accordance with Anders v. California, 386 U.S. 738 (1969),
Appellant identifies two evidentiary issues counsel deems meritless. His
counsel concurrently filed a petition for leave to withdraw. Following review,
we grant counsel’s petition for leave to withdraw and affirm Appellant’s
judgment of sentence.
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1
35 P.S. § 780-113.1(a)(3).
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Following a jury trial on January 26, 2016, Appellant was convicted of
one count of PWID. On March 23, 2016, the trial court sentenced Appellant
to 13-30 months at a state correctional institute with credit for time served
as well as making Appellant RRRI eligible. Appellant filed a timely post-
sentence motion seeking reconsideration of his sentence on April 1, 2016.
Appellant wished to serve his sentence at Columbia County Jail rather than
at a state correctional institute. The trial court denied Appellant’s motion on
April 6, 2016.
Appellant filed a pro se motion on April 14, 2016, seeking an appeal.
On the same date, Appellant’s counsel filed a notice of appeal. The trial
court directed Appellant to comply with Pa.R.A.P. 1925(b), and Appellant
filed his concise statement on May 10, 2016. In his statement, counsel
indicated that he would be filing an Anders brief. The trial court entered an
opinion on June 8, 2016.
Appellant’s counsel filed, in this Court, a petition to withdraw as
counsel and an Anders brief, wherein counsel raises one issue2 for our
review:
I. Whether the [Appellant’s] appeal of his judgment of sentence
frivolous, thereby authorizing present counsel to withdraw.
____________________________________________
2
In his Anders Brief counsel discusses the merits of two evidentiary issues
which he deems frivolous.
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Anders Brief at 4. Appellate counsel filed his Anders brief on August 2,
2016, along with an application to withdraw as counsel. This Court issued
an order the same date, directing Appellate counsel to comply with the letter
of rights pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.
Super. 2005). On August 8, 2016, Appellate counsel filed a copy of the
letter sent to Appellant regarding the Anders brief. Appellant did not file a
reply to the Anders brief.
Before this Court can review the merits of the underlying issues, we
must first address counsel’s petition to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). In order for
court-appointed counsel to withdraw, counsel must
(1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; (2) file a brief
referring to anything that arguably might support the appeal but
which does not resemble a “no-merit” letter or amicus curiae
brief; and (3) furnish a copy of the brief to the defendant and
advise the defendant of his or her right to retain new counsel or
raise any additional points that he or she deems worthy of the
court’s attention.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).
Upon review, we conclude counsel has satisfied the procedural
requirements set forth in Anders. In the brief, counsel explains his
conclusion that the issues sought to be raised by Appellant are wholly
frivolous. After this Court’s August 2, 2016 order, counsel sent a copy of the
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Anders brief to Appellant. Counsel’s letter, a copy of which was filed on
August 8, 2016, advised Appellant of his right to retain new counsel or act
on his own behalf.
Next, this Court must first address whether counsel’s Anders brief
satisfies the following substantive requirements:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
In the Anders brief, counsel has included a statement of the case that
includes a procedural history of the case. Anders Brief at 5-6. Counsel has
complied with the first requirement.
The second required element of an Anders brief is reference to
anything in the record that counsel believes arguably supports the appeal.
See Santiago, 978 A.2d at 361. Here, counsel raises two evidentiary
questions: whether the trial court erred in allowing Agent Kirk Schwartz to
give opinion testimony, and whether the trial court erred in allowing Officer
Brandon Schultz to use a demonstrative. Anders Brief at 8-13. Counsel,
therefore, has satisfied the second Anders requirement.
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The third element of Anders requires counsel to state his conclusion
that the appeal is frivolous, which counsel complied with in his brief. Id. at
9-10, 12-13. The final element of Anders requires counsel to provide his
reasons for concluding that the appeal is frivolous. Santiago, 978 A.2d at
361. Counsel complied with this requirement and satisfied the final prong of
the Anders test. Anders Brief at 8-13.
We find counsel has satisfied the requirements for a petition to
withdraw. He complied with the briefing requirements, as explained above.
Appellant was advised of his right to retain substitute counsel or to proceed
pro se to bring any attention points to this Court's attention. Thus, we must
next address the merits.
Appellant’s two issues relate to whether the trial court improperly
admitted evidence. Whether the trial court erred in allowing Agent Schwartz
to give opinion testimony, and whether the trial court erred in allowing
Officer Schultz to use demonstrative evidence.
A trial court has broad discretion to determine
whether evidence is admissible and a trial court’s ruling on
an evidentiary issue will be reversed only if the court
abused its discretion. Accordingly, a ruling admitting
evidence “will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be
clearly erroneous.”
Commonwealth v. Huggins, 68 A.3d 962, 966(Pa. Super. 2013) (citations
omitted).
The Pennsylvania Rules of Evidence provide that
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[i]f a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Pa.R.E. 701. During Agent Schwartz’s testimony, trial counsel objected to
the following questioning.
Commonwealth: In your experience with regard to the
other components for manufacturing one-pot
methamphetamine, what is your experience with regard to
the locations or the traveling about to get various
components rather than to buy them in one place?
Agent Schwartz: Well, they do travel to numerous
locations because some of the retail facilities in the area
had become ---
N.T. Jury Trial, 1/26/2016, at 55. At this point Appellant objected to the
line of questioning. Following the trial court overruling Appellant’s objection,
Agent Schwartz testified that “[t]hey do travel to different locations . . .
Some of the retailers have become knowledgeable if somebody were to buy
sulfuric acid it and lie, and all the components in one know[n] location, they
do contact us and notify us. People have become cognizant of that fact.”
Id. at 56.
Agent Schwartz had previously testified to his experience regarding
methamphetamine manufacturing, as well as his surveillance of Appellant on
November 21, 2014, from Berwick, Pennsylvania to a Gould’s Grocery Store
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in Conygham Valley, and then to a Wal-Mart in Hazleton Township. Id. at
38-40, 42-44. The ruling does not reflect manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous. Therefore, the trial court did not abuse its discretion in finding
that the testimony was rationally based on Agent Schwartz’s perception,
helpful to understanding his testimony or determining a fact in issue, and
was not based on scientific, technical, or other specialized knowledge. We
agree with trial counsel that this issue is meritless.
Appellant’s second assertion is that the trial court abused its discretion
in allowing Officer Schultz to use a demonstrative during his testimony.
Demonstrative evidence is “tendered for the purpose of rendering other
evidence more comprehensible to the trier of fact.” Commonwealth v.
Serge, 896 A.2d 1170, 1177 (Pa. 2006) (citation and quotation marks
omitted). Demonstrative evidence is admissible as long as the relevance
outweighs any potential prejudicial effect. Id. “Evidence is relevant if it
logically tends to establish a material fact in the case, tends to make a fact
at issue more or less probable or supports a reasonable inference or
presumption regarding a material fact.” Commonwealth v. Drumheller,
808 A.2d 893, 904 (Pa. 2002). Furthermore, relevant evidence may be
excluded “if its probative value is outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Pa.R.E. 403. “Demonstrative evidence such as
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photographs, motion pictures, diagrams, and models have long been
permitted to be entered into evidence provided that the demonstrative
evidence fairly and accurately represents that which it purports to depict.”
Serge, 896 A.2d at 1177 (citation omitted).
In the matter sub judice, the trial court permitted Officer Schultz to
use physical products and models of methamphetamine precursors as
demonstrative evidence over the Appellant’s objection. In making such
ruling, the trial court found the evidence “is probative for them to analyze
how the evidence in this case, that the Commonwealth is still producing,
relates to the actual process of manufacturing methamphetamine.” N.T.
Jury Trial, 1/26/2016, at 61. Officer Schultz further testified about the items
that were seized from the Appellant on November 21, 2014, and compared
them to the demonstrative evidence. Id. at 70-72, 77-82. Additionally, on
cross examination, it was made clear that the models and products shown
by Officer Schultz were not the items seized from Appellant. Id. at 83, 88-
89. Appellant was charged with PWID and the demonstrative evidence
rendered other evidence more comprehensible to the jury, and was not more
prejudicial than probative. Therefore, the trial court did not abuse its
discretion in permitting Officer Schultz to use the demonstrative evidence.
Appellant’s argument fails.
As reflected above, we have determined that counsel has satisfied the
technical requirements of Anders and Santiago. After determining that the
technical requirements are satisfied, it is generally incumbent upon this
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Court to “conduct an independent review of the record to discern if there are
any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(citations and footnote omitted). Based upon our review, we find the claims
raised by counsel in the Anders brief are frivolous. We have conducted an
independent review of the record and addressed Appellant’s arguments
properly before us on direct appeal. We agree with counsel that the issues
Appellant seeks to litigate in this appeal are wholly frivolous. Also, we do
not discern any non-frivolous issues that Appellant could have raised. We,
therefore, grant counsel’s petition to withdraw and affirm the judgment of
sentence.
Counsel’s petition to withdraw granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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