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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
V. :
:
NORMAN WOODBERRY, :
:
APPELLANT :
: No. 2717 EDA 2015
:
Appeal from the Judgment of Sentence August 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001998-2015
BEFORE: DUBOW, SOLANO AND PLATT*, JJ.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2017
Appellant appeals from the Judgment of Sentence imposed after a
bench trial in the Philadelphia Court of Common Pleas, and challenges the
weight of the evidence. In addition, Appellant’s counsel, Michael J. Graves,
Jr., Esq., has filed a Brief pursuant to Anders and Santiago,1 and a Petition
to Withdraw. We affirm the Judgment of Sentence, and grant counsel’s
Petition to Withdraw.
The facts, as gleaned from the certified record, are as follows. On
January 2, 2015, and January 3, 2015, Officer Brian Kensey of the
*
Retired Senior Judge Assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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Philadelphia Police Department, was conducting plainclothes surveillance
with the Narcotics Enforcement Team at the 6300 block of North Norwood
Street in Philadelphia after receiving complaints of drug dealing occurring on
the block. He observed Appellant and Appellant’s co-defendant, Eddie
Donald, speak with individual men on three different occasions while on or
near the porch of the house located at 6327 Norwood. Appellant would
accept U.S. currency from each man, and then give the men small packets,
on one occasion after going into the home. After each transaction, Officer
Kensey relayed a description of the buyer to back-up officers; police officers
stopped each of the three men and found plastic packets containing crack
cocaine and/or heroin in their possession.
On January 3, 2015, Sergeant Andre Simpson arrested Appellant on
the front porch of 6327 Norwood Street. Appellant was lying on his stomach
when Officer Simpson handcuffed him, rolled him over, and told him to sit
up. Officer Simpson then found a clear bag containing four pink-tinted
Ziploc packets holding crack cocaine that had been under Appellant’s body.
Other police officers, who had been in the house prior to Officer Simpson’s
arrival, recovered a clear packet of heroin from inside the house, along with
new and unused Ziploc plastic packets in various colors.
The Commonwealth charged Appellant and his co-defendant with
Manufacture, Delivery, or Possession with Intent to Deliver a Controlled
Substance (“PWID”); Knowing and Intentional Possession of a Controlled
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Substance; Use/Possession of Drug Paraphernalia; and Criminal Conspiracy. 2
Appellant filed an Omnibus Motion seeking to suppress the evidence, which
the trial court denied.
On August 4, 2015, a non-jury trial proceeded, at which four of the
officers involved in the surveillance and arrests testified in detail about the
events leading up to, and including, Appellant’s and his co-defendant’s
arrest. At the conclusion of the trial that same day, the court found
Appellant guilty of the three possession charges.3 The court immediately
sentenced Appellant on the PWID conviction to 9 to 23 months’ incarceration
in county prison with credit for time served, followed by 3 years’ probation.
No further penalty was imposed by the Court on the remaining convictions.
Appellant did not file post-sentence motions.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925. Appellant raised one issue in his Pa.R.A.P. 1925(b)
Statement challenging the weight of the evidence.4
On August 2, 2016, counsel for Appellant filed an Anders Brief and a
Petition to Withdraw as counsel. He also filed a copy of a letter addressed to
2
35 P.S. § 780-113(a)(30), (a)(16), and (a)(32); and 18 Pa.C.S. § 903,
respectively.
3
The court found Appellant not guilty of conspiracy. The trial court found
Appellant’s co-defendant to be not guilty of all of the offenses.
4
The appeal was subsequently dismissed for failure to file a brief, but by
Order dated July 18, 2016, this Court reinstated the appeal.
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Appellant informing Appellant of counsel’s Petition to Withdraw and his right
to retain new counsel or proceed pro se. Appellant did not file a response.
In his Anders Brief, counsel raises the following issue on Appellant’s
behalf:
Based on the totality of the Philadelphia Police Officers’
surveillance, observations, investigation and arrest of
[Appellant], was the [c]ourt’s [g]uilty [v]erdict against the
weight of the evidence[?]
Anders Brief at 7.
Before we address the merits of this appeal, we must determine
whether counsel has complied with the procedures provided in Anders and
its progeny. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). Counsel who wishes to withdraw must file a petition to
withdraw stating that he or she has made a conscientious examination of the
record and determined that there are no meritorious issues to be raised on
appeal. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Also, counsel must provide a copy of the Anders Brief to the appellant and
inform him of his right to proceed pro se or retain different counsel. Id.
See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).
The substance of the Anders brief must “(1) provide a summary of
the procedural history and facts, with citations to the record; (2) refer to
anything in the record that 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
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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.
Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous. See Goodwin, supra at 291; Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (footnote and citation omitted).
Counsel in the instant appeal has complied with the above
requirements. We, therefore, proceed with our independent review of the
record, first addressing the weight challenge raised in both the Rule 1925(b)
Statement and the Anders Brief.
The only issue raised by Appellant was whether the verdict is against
the weight of the evidence. Before reaching the merits of that question, we
must determine whether it has been properly preserved for consideration on
appeal. Commonwealth v. Washington, 825 A.2d 1264, 1265 (Pa.
Super. 2003). Pennsylvania Rule of Criminal Procedure 607 provides in
relevant part as follows:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(1) orally, on the record, at any time before
sentencing;
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(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3).
Here, Appellant did not file a post-sentence motion. He first raised his
claim that the verdict was against the weight of the evidence in his Pa.R.A.P.
1925(b) Statement. Because he did not comply with Rule 607, we must
find, as did the trial court, that this claim is waived. See Trial Court
Opinion, dated March 30, 2016, at 13.5
We further note that, although titled a weight challenge, the body of
counsel’s Anders Brief challenges the sufficiency of the evidence supporting
5
In addition, we note that “[a] weight of the evidence claim concedes that
the evidence is sufficient to sustain the verdict, but seeks a new trial on the
grounds that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one's sense of justice.” In re A.G.C.,
142 A.3d 102, 109 (Pa.Super. 2016) (citation omitted). “Appellate review of
a weight claim is a review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the evidence.”
Commonwealth. v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation
omitted). “Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge when
reviewing a trial court's determination of whether the verdict is against the
weight of the evidence.” Id. (citation omitted). Here, because Appellant did
not file a post-sentence motion, the trial court was not presented with an
opportunity to consider whether the verdict was against the weight of the
evidence. However, in light of the testimony presented at trial, which the
court found credible, we do not believe that the trial court would have
abused its discretion had it been able to conclude that the verdict was not
against the weight of the evidence. See id. (noting that “[o]ne of the least
assailable reasons for granting or denying a new trial is the lower court's
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.” (citation
omitted)).
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Appellant’s PWID conviction. The sufficiency challenge was not raised in
Appellant’s Rule 1925(b) Statement and, therefore, is also waived.
Pa.R.A.P. 1925(b)(4)(vii).
However, in accordance with Goodwin and Flowers, supra, we have
conducted an independent review of the record and conclude that, even if a
sufficiency challenge had been properly preserved for appeal, we would
conclude it has no merit.
We review a sufficiency challenge guided by the following precepts:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007)
Appellant challenges only his PWID conviction. The Pennsylvania
Substance, Drug, Device and Cosmetic Act provides that a person, who is
not authorized by appropriate registration or license, may not manufacture,
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deliver, or possess a controlled substance with intent to manufacture or
deliver, a controlled substance. 35 P.S. 780-113(a)(30).
To convict a person of PWID, the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a
controlled substance and did so with the intent to deliver it. In
determining whether there is sufficient evidence to support a
PWID conviction, all facts and circumstances surrounding the
possession are relevant, and the Commonwealth may establish
the essential elements of the crime wholly by circumstantial
evidence. Factors to consider in determining whether the drugs
were possessed with the intent to deliver include the particular
method of packaging, the form of the drug, and the behavior of
the defendant.
Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005)
(internal citations omitted).
The Commonwealth may prove either actual or constructive possession
of the drugs with proof of constructive possession requiring evidence of the
defendant’s intent and power to control the contraband. Id. at 1014.
In its Pa.R.A.P 1925(a) Opinion, the trial court provided a detailed
recitation of the testimony provided by all four police officers involved in the
surveillance and subsequent arrests of Appellant and his co-defendant. Our
review of the record supports the trial court’s recitation and we, thus, adopt
it for purposes of this appeal. We conclude that, viewing the record
evidence in the light most favorable to Commonwealth as the verdict winner,
the Commonwealth proved each element of the PWID offense with sufficient
evidence.
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Accordingly, in light of the above and our further independent review
of the record, we conclude that there are no meritorious issues to be raised
on appeal, and the Judgment of Sentence should be affirmed.
The parties are directed to annex a copy of the trial court’s March 30,
2016 Opinion to all future filings.
Judgment of Sentence affirmed. Counsel’s Petition to Withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
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Com. v. Woodberry, N.
Combined Opinion