J-S35035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD FRANK SHAFFER :
:
Appellant : No. 1839 WDA 2016
Appeal from the Judgment of Sentence November 3, 2016
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0001188-2015
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 06, 2017
Appellant Richard Frank Shaffer appeals from the judgment of
sentence entered in the Court of Common Pleas of Indiana County on
November 3, 2016, following his jury trial convictions of possession with the
intent to deliver a controlled substance (heroin) and possession of a
controlled substance (heroin).1 Appellant’s counsel also has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and its
Pennsylvania counterpart Commonwealth v. Santiago, 602 Pa. 159, 978
A.2d 349 (2009) (hereinafter “Anders Brief”) together with a petition to
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*
Former Justice specially assigned to the Superior Court.
1
35 Pa.C.S.A. §§ 780-113(a)(30) & (16), respectively.
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withdraw as counsel.2 Following our review, we grant counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
Appellant’s convictions arose following a controlled drug buy on April
28, 2014, at which time he sold heroin to a confidential informant (CI). The
trial court summarized the relevant facts pertaining to the encounter as
follows:
At [Appellant’s] trial, the jury was presented with evidence
of the circumstances of the controlled buy as well as the
procedures employed by the Pennsylvania State Police. In this
case, the CI contacted [Appellant] about purchasing heroin and
the parties agreed to meet at a local Sheetz convenience store.
The CI arrived as a passenger in an unmarked vehicle driven by
Pennsylvania State Trooper Rebecca Fabich. [Appellant] entered
the backseat of the vehicle and directed Trooper Fabich to drive
to the Maple Street Apartments, an apartment complex located
approximately one mile away. Upon arrival at the apartment
complex, [Appellant] exited the vehicle and then returned
approximately five minutes later. Once [Appellant] was back in
the vehicle, he handed the CI ten stamp bags of heroin in
exchange for $100.00. Trooper Fabich was present in the
vehicle with the CI throughout the entire transaction.
During Trooper Fabich’s testimony, the jury also heard how
both the CI’s person and the unmarked vehicle are searched at
the Pennsylvania State Police barracks immediately before and
after the buy. A Pennsylvania State Police forensic scientist then
proceeded to explain how the stamp bags were analyzed and
testified that all ten bags were positively identified as containing
heroin.
Trial Court Opinion, filed January 24, 2017, at 1-2.
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2
Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.
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On November 2, 2016, Appellant was sentenced to two (2) years to
five (5) years’ incarceration for his PWID conviction, and he received no
further penalty for the possession of a controlled substance conviction as the
crimes merged for sentencing purposes. Although Appellant did not file a
post-sentence motion, he filed a timely notice of appeal on November 23,
2016. On November 29, 2016, the trial court directed Appellant to file a
concise statement of matters complained of on appeal. Appellant complied
and filed the same on December 16, 2016, wherein he challenged the weight
of the evidence presented at trial. The trial court filed its Rule 1925(a)
Opinion on January 24, 2017.
On March 8, 2017, counsel filed her Anders Brief and Petition for
Leave to Withdraw as Counsel. Appellant has filed no further submissions
either pro se or through privately-retained counsel. The Commonwealth
filed a brief with this Court on April 10, 2017.
Prior to addressing the question raised on appeal, we must first
resolve counsel's petition to withdraw. Commonwealth v. Goodwin, 928
A.2d 287, 290 (Pa.Super. 2007) (en banc). See also Commonwealth v.
Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating
“[w]hen faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.”). There are procedural and briefing requirements imposed upon
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an attorney who seeks to withdraw on appeal pursuant to which 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) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an 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 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, supra at 178-79, 978 A.2d at 361. Counsel also must provide
the appellant with a copy of the Anders brief, together with a letter that
advises the appellant of his or her right to “(1) retain new counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any points that the
appellant deems worthy of the court's attention in addition to the points
raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928
A.2d 349, 353 (Pa.Super. 2007) (citation omitted). Substantial compliance
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with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d
1287, 1290 (Pa.Super. 2007).
Herein, counsel contemporaneously filed her Petition for Leave to
Withdraw as Counsel and Anders Brief. In her Petition, counsel states that
after a careful and conscientious examination of the record she has
determined that an appeal herein is wholly frivolous. See Petition for Leave
to Withdraw at ¶ 2. The Petition further explains that counsel notified
Appellant of the withdrawal request and forwarded a copy of the Anders
Brief to Appellant together with a letter explaining his right to proceed pro se
or with new, privately-retained counsel to raise any additional points or
arguments that Appellant believed had merit. See id. at ¶ 4; see also
attached Letter to Appellant. The notice letter indicates that a copy of the
Petition to Withdraw as Counsel and Anders Brief were served on Appellant
and correctly informs Appellant of his rights.
In the Anders brief, counsel provides a detailed summary of the facts
and procedural history of the case with citations to the record, refers to
evidence of record that might arguably support the issue raised on appeal
challenging the weight of the evidence, provides citations to relevant case
law, and states her reasoning and conclusion that the appeal is wholly
frivolous. See Anders Brief at 4-10. Accordingly, counsel has complied with
all of the technical requirements of Anders and Santiago. As Appellant
filed neither a pro se brief nor a counseled brief with new, privately-retained
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counsel, we proceed to examine the issue of arguable merit identified in the
Anders Brief. Therein, counsel presents the following Statement of
Questions Involved: “Was the verdict of guilty of Delivery of a Controlled
Substance-.29 grams of Heroin (F) and Possession of a Controlled
Substance- .29 grams of Heroin (M) against the weight of the evidence
presented by the Commonwealth at trial?” Anders Brief at 4.
Before we reach the merits of Appellant’s claim, we must first
determine whether he has properly preserved it for our review. It is well-
established that a challenge to the weight of the evidence must first be
raised at the trial level (1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion. In re J.B., 630 Pa. 124, 160, 106 A.3d 76, 97
(2014). As noted in the comment to Pa.R.Crim.P. 607, the purpose of the
Rule is to clarify that a challenge to the weight of the evidence must be
raised with the trial judge or it will be waived, for appellate review of a
weight claim is limited to a review of the trial court’s discretion. See
Pa.R.Crim.P. comment.
Generally, a claim challenging the weight of the evidence cannot be
raised for the first time in a Pa.R.A.P. 1925(b) statement, and an appellant's
failure to avail himself of any of the prescribed methods for presenting a
weight of the evidence issue to the trial court constitutes waiver of that
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claim, even if the trial court responds to the claim in its Rule 1925(a)
opinion. Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013).
Instantly, Appellant failed to challenge the weight of the evidence
before the trial court orally or in writing prior to sentencing or by written
motion after sentencing. See Pa.R.Crim.P. 607(A); Griffin, supra. Rather,
Appellant raised his weight claim for the first time in his Rule 1925(b)
statement. Thus, his challenge to the weight of the evidence on appeal is
waived. See Pa.R.Crim.P. 607; In re J.B., supra; Griffin, supra.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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3
This Court may affirm the trial court’s order on any valid basis. Plasticert,
Inc. v. Westfield Ins Co., 923 A.2d 489 (Pa.Super. 2007).
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