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2018 PA Super 136
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTIAN JOHN YORGEY, :
:
Appellant : No. 3376 EDA 2016
Appeal from the Judgment of Sentence September 26, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0006914-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.
OPINION BY DUBOW, J.: FILED MAY 24, 2018
Appellant, Christian John Yorgey, appeals from the Judgment of
Sentence entered by the Montgomery County Court of Common Pleas
following his conviction of one count of Possession of Drug Paraphernalia and
two counts of Possession of a Small Amount of Marijuana.1 On appeal, he
challenges the trial court’s denial of his Motion to Suppress. Appellant’s
counsel filed a Petition to Withdraw as Counsel and a Brief pursuant to Anders
v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
1 35 P.S. § 780-113(a)(32) and 35 P.S. § 780-113(a)(31), respectively.
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we grant counsel’s Petition to Withdraw and affirm Appellant’s Judgment of
Sentence.
We summarize the relevant facts, as gleaned from the certified record,
the suppression hearing, and the trial court’s Pa.R.A.P. 1925(a) Opinion, as
follows. On December 3, 2015, someone in Appellant’s home called 911 to
report a domestic dispute at the family’s apartment. Corporal Michael Slattery
and Officer Jeremy Bonner of the Lower Providence Township Police
Department responded to the call.
As they entered the apartment building, Appellant was walking down
the stairs from the second-floor apartment. The officers informed Appellant
of their purpose, and Officer Bonner remained downstairs with Appellant while
Corporal Slattery went upstairs to Appellant’s apartment. Corporal Slattery
knocked on the door and, after securing the dogs, Ms. Yorgey, Appellant’s
wife, opened the door and invited him inside the apartment. She then
explained to Corporal Slattery that the domestic dispute had been a verbal
argument.
Officer Cherelle Cutting arrived in the apartment shortly thereafter, and
pointed out to Corporal Slattery that a gold-colored marijuana grinder was
sitting in plain view on the floor next to the sofa. When asked about the
grinder, Ms. Yorgey told the police officers, “That’s not mine. That’s
[Appellant’s] grinder.” N.T. Suppression, 7/1/16, at 22, 35. She also stated
“[t]hat’s where he sits at the couch. He’ll do drugs at the table there. He’ll
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smoke his marijuana there. I don’t smoke marijuana. I’m on too many
medications. . . . I don’t like when he smokes in the house.” Id. at 23, 35.
Corporal Slattery then went back downstairs to speak with Appellant,
patted him down for weapons, and took him into custody for possession of
drug paraphernalia, i.e., the marijuana grinder. In conducting a search
incident to arrest, Corporal Slattery found a “one-hitter” in Appellant’s right-
side back pocket.2 Appellant then informed Corporal Slattery that before they
transported him to county jail, he wanted to get his cell phone from his truck.
Officer Bonner retrieved the phone from the truck, and then informed Corporal
Slattery that he had noticed a strong odor of marijuana coming from inside
the vehicle. When Corporal Slattery asked Appellant about the odor, Appellant
told him that he would find marijuana in the center console of his truck and
gave his permission to retrieve it. Officer Bonner then retrieved a small
amount of marijuana and a lit smoking bowl from Appellant’s truck.
The Commonwealth charged Appellant with the above offenses.
Represented by Kevin Horan, Esq., of the public defender’s office, Appellant
filed a Motion to Suppress seeking the exclusion of all physical evidence
obtained by police officers. At the suppression hearing, Appellant specifically
alleged that the officers did not have consent to enter the apartment and
2A “one-hitter” is a narrow pipe used to provide a single inhalation of ground
marijuana. N.T. Suppression, 7/1/16, at 28.
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lacked probable cause to arrest him for constructive possession of the
marijuana grinder.
On July 1, 2016, the suppression court held a hearing on the motion.
Corporal Slattery testified to the above facts. Id. at 10-39. Officer Cutting
briefly testified that she first observed the marijuana grinder on the floor of
the Yorgey apartment and that Ms. Yorgey had unequivocally stated that the
marijuana grinder belonged to Appellant. Id. at 63-64.
Ms. Yorgey testified for the defense that she did not hear the police
knock on the door and did not invite the police inside. Id. at 45-48, 51. She
further testified that she smokes marijuana, but the marijuana grinder was
not hers, and could have belonged to her son, to her nephew, or to Appellant.
Id. at 53-56, 58. She also testified that the marijuana grinder was on the
floor beside her, and that she had handed it to the police officers when they
noticed it. Id. at 53, 57.
Finding the testimony of Corporal Slattery and Officer Cutting more
credible than Ms. Yorgey, the court denied the Motion to Suppress, concluding
that the evidence recovered by the police officers in the Yorgey’s apartment
was sufficient to give rise to probable cause for Appellant’s arrest. Id. at 86.
Because the police officers had lawfully arrested Appellant for his constructive
possession of the grinder, the evidence seized from Appellant’s person and his
truck was not “fruit of the poisonous tree” and was admissible at trial.
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Following a trial, a jury found Appellant guilty of the Drug Paraphernalia
offense. The court found him guilty of the two Possession of a Small Amount
of Marijuana offenses.3 On September 26, 2016, the trial court imposed an
aggregate sentence of 150 days of probation, a $100 fine, and the automatic
suspension of his license temporarily.4 N.T. Trial, 9/26/16, at 212-14.
Appellant did not file a Post-Sentence Motion.5
On October 26, 2016, public defender Christa M. Miller, Esq., filed a
timely appeal on Appellant’s behalf. On November 10, 2016, Appellant filed
a pro se Pa.R.A.P. 1925(b) Statement alleging that trial counsel was
ineffective for failing to subpoena relevant evidence and witnesses. Attorney
Miller subsequently filed a Motion for Leave to Withdraw due to a conflict
created by Appellant’s claim of her colleague’s ineffectiveness. The trial court
granted Attorney Miller’s Motion and appointed Bonnie-Ann Brill Keagy, Esq.,
3 Appellant was not entitled to a trial by jury on the Possession of a Small
Amount of Marijuana charges because, if convicted, their maximum penalty
was only thirty days. See 35 P.S. § 780-113(g); see also Commonwealth
v. Harriott, 919 A.2d 234, 237 (Pa. Super. 2007) (holding that a defendant
is entitled to a jury trial where he or she “faces a charge which, alone, could
lead to imprisonment beyond six months[,]” but not where the “offense bears
a maximum incarceration of six months or less.”).
4 See 75 Pa.C.S. § 1532(c) (“The department shall suspend the operating
privilege of any person upon receiving a certified record of the person's
conviction of any offense involving the possession . . . of any controlled
substance . . .[.]”).
5 Appellant completed his probationary sentence in February 2017. See
Appellant’s Supplemental Brief at 7. The public docket entries also indicate
that Appellant paid his $100 fine.
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to represent Appellant on direct appeal. The court ordered new counsel to file
an amended Pa.R.A.P. 1925(b) Statement.
On February 3, 2017, counsel filed an amended Rule 1925(b) Statement
asserting that the trial court erred in denying Appellant’s Motion to Suppress
because “[n]o exigent circumstances existed to support the search of either
the residence or the vehicle.” Pa.R.A.P. 1925(b) Statement, filed 2/3/17, at
1. On April 26, 2017, counsel filed a Brief and a Petition to Withdraw pursuant
to Anders and Santiago, supra. Appellant did not file a response to
counsel’s Anders Brief.
In her Anders Brief, counsel raised one issue:
Did the trial court err when it failed to suppress evidence obtained
as the result of the warrantless searches of [Appellant’s] residence
and vehicle at the time of [Appellant’s] arrest when no exigent
circumstances existed to support the search of either the
residence or the vehicle?
Anders Brief at 5 (capitalization and suggested answers omitted).
On August 18, 2017, this Court certified this case for en banc review6
regarding the following issue:
Whether the scope of the appellate court’s independent review of
the certified record, once Counsel seeks permission to withdraw
representation, necessitates: (1) a comprehensive review of the
record for any issues that Counsel might have overlooked; (2)
review limited to the issues either Counsel or the pro se appellant
raised; or (3) review limited to the issues raised by either Counsel
or pro se appellant, and issues that the appellate court is obligated
to review sua sponte. Compare Commonwealth v. Flowers,
113 A.3d 1246 (Pa. Super. 2015) (espousing comprehensive
6 This Court also certified Commonwealth v. Dempster, No. 28 EDA 2017
for en banc review, which raised the same issue.
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review), with Commonwealth v. Baney, 860 A.2d 127 (Pa.
Super. 2004) (limiting review to issues raised in Anders brief and
pro se response), and Commonwealth v. Schmidt, [165 A.3d
1002] (Pa. Super. June 14, 2017) (Gantman, P.J., concurring)
(suggesting middle ground level of review, in which appellate
court examines entire record for issues raised in briefs and for
other issues appearing on face of record which court can raise sua
sponte)[.]
Order Directing En Banc Certification, 8/18/17, at 1-2. The parties have filed
supplemental briefs addressing this issue.
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, 292 (Pa. Super. 2007) (en
banc).
In Anders v. California, 386 U.S. 738 (1967), the United States
Supreme Court addressed “the extent of the duty of a court-appointed
appellate counsel to prosecute a first appeal from a criminal conviction, after
that attorney has conscientiously determined that there is no merit to the
indigent’s appeal.” Id. at 739. California had permitted Anders’s attorney to
withdraw based on a simple letter stating, “I will not file a brief . . . there is
no merit to the appeal.” Id. at 742. After concluding that the California
procedures violated the Fourteenth Amendment’s principles of substantial
equality and fair process, the Supreme Court outlined a permissible procedure.
Id. at 744.
The Supreme Court acknowledged that in cases that involve frivolous
appeals, counsel may request and receive permission to withdraw without
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depriving the indigent defendant of his right to representation, provided
certain safeguards are met. Id. at 741-42. Thus, 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 the appeal would
be frivolous. 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);
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing
that counsel must inform client by letter of rights to proceed once counsel
moves to withdraw and append a copy of the letter to the petition).
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 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.” Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). In McCoy v. Court of Appeals of
Wisconsin, Dist. 1, 486 U.S. 429 (1988), the U.S. Supreme Court noted that
the Anders brief is designed, inter alia, to assist the court in making “the
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critical determination whether the appeal is indeed so frivolous that counsel
should be permitted to withdraw.” Id. at 439.
Here, counsel’s Anders Brief has complied with the mandated
procedure for withdrawing as counsel.
Anders also provides that once the court had determined that counsel
satisfied the above requirements, “the court—not counsel—then proceeds,
after a full examination of all the proceedings, to decide whether the case is
wholly frivolous. If it so finds it may grant counsel’s request to withdraw and
dismiss the appeal[.]” Anders, 386 U.S. at 744. See also Commonwealth
v. Baker, 239 A.2d 201 (Pa. 1968) (holding that Pennsylvania courts must
follow the Anders procedure). Thus, in addition to reviewing counsel’s brief
submitted with the withdrawal motion to ascertain whether counsel has
adequately performed his or her duty with respect to providing proper
representation to the appellant, a reviewing court must:
then proceed[], after a full examination of all the proceedings,
to decide whether the case is wholly frivolous. If it so finds it
may grant counsel’s request to withdraw and dismiss the appeal
insofar as federal requirements are concerned, or proceed to a
decision on the merits, if state law so requires. On the other hand,
if it finds any of the legal points arguable on their merits (and
therefore not frivolous) it must, prior to decision, afford the
indigent the assistance of counsel to argue the appeal.
Anders, supra at 744 (emphasis added).
Our Court has inconsistently applied the mandate set forth in Anders
and its progeny that we conduct “a full examination of all the proceedings, to
decide whether the case is wholly frivolous” before granting an attorney’s
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petition to withdraw from representation. Anders, supra at 744. The
discrepancy in our jurisprudence appears to stem from a disagreement as to
whether the Anders requirement of “a full examination of all the proceedings”
pertains only to a review of the record to ascertain “the merits of the appeal”
as that appeal has been presented by counsel seeking to withdraw, or whether
Anders requires a review of the whole record to ascertain complete frivolity,
i.e., that no issues appearing to have merit exist. Id.; Santiago, supra at
358.
In some cases, we have limited our scope of review to confirm
frivolousness of only those issues presented by counsel in the Anders brief.
See, e.g., Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super.
2013); Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012);
and Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010). In
other cases, however, we have defined the scope of review required by
Anders as one necessitating a review of the entire record for “any other
potentially non-frivolous issues.” Commonwealth v. Goodwin, 928 A.2d
287, 292 (Pa. Super. 2007) (en banc). See also Commonwealth v.
Harden, 103 A.3d 107, 112 (Pa. Super. 2014) (reviewing entire record and
finding one issue “worthy of discussion” but ultimately frivolous);
Commonwealth v. Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006)
(independently reviewing entire record before concluding that “we cannot
discern any other potentially non-frivolous issues.”); In re S.M.B., 856 A.2d
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1235, 1238 (Pa. Super. 2004) (same); Commonwealth v. Ferguson, 761
A.2d 613, 616 (Pa. Super. 2000) (same).
Although the Anders Court did not delineate the exact meaning of “full
examination of all the proceedings,” the Pennsylvania Supreme Court
recognized in Santiago, supra, that only “complete frivolity . . . supports
counsel’s request to withdraw and a court’s order granting the request.”
Santiago, supra at 358 (citation omitted). The Santiago Court further
observed that Anders not only requires counsel to conduct an exhaustive
examination of the record, but also “place[s] the responsibility on the
reviewing court to make an independent determination of the merits of the
appeal.” Id. at 358.
This Court has stated that “part and parcel of Anders is our Court’s duty
to review the record to insure no issues of arguable merit have been missed
or misstated.” Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super.
2006). This view comports with the main purpose of Anders, which is to
make sure that an appellant is provided with adequate counsel as required by
the Sixth Amendment of the U.S. Constitution. Ultimately, our Court’s
overriding task is to ensure that a criminal defendant’s loss of liberty is
reviewed with the gravity to which it is entitled. When counsel seeks to
withdraw, Anders requires nothing less.
In light of the constitutional rights at issue, we must give Anders a most
generous reading and review “the case” as presented in the entire record with
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consideration first of issues raised by counsel. Anders, 386 U.S. at 744.
Contrary to the Dissenting Opinion in Flowers, supra, this review does not
require this Court to act as counsel or otherwise advocate on behalf of a party.
Rather, it requires us only to conduct a review of the record to ascertain if on
its face, there are non-frivolous issues that counsel, intentionally or not,
missed or misstated. We need not analyze those issues of arguable merit;
just identify them, deny the motion to withdraw, and order counsel to analyze
them.
In the Anders Brief, Appellant’s counsel raised a challenge to the
suppression court’s Order denying Appellant’s Motion to Suppress based on
the court’s credibility determinations.7 With respect to the claim raised in the
Anders Brief, we note the following principles of law.
In reviewing the denial of a Motion to Suppress, we are limited to
considering only the Commonwealth’s evidence and “so much of the evidence
for the defense as remains uncontradicted when read in the context of the
record as a whole.” Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa.
Super. 2017). Where the testimony and other evidence supports the
7 Counsel also considered and rejected three additional issues, including: (1)
a challenge to Appellant’s initial arrest for possessing the marijuana grinder;
(2) the illegal seizure of the marijuana grinder; and (3) Appellant’s desire to
assert trial counsel’s ineffectiveness for failing to obtain and admit evidence
showing that Ms. Yorgey smokes marijuana. Anders Brief at 15-17. We
agree with counsel that these issues are either meritless or waived for failure
to present those arguments in the lower court. Moreover, Appellant’s
ineffectiveness claim is moot because he is no longer serving a sentence and
there is no remedy available. 42 Pa.C.S. § 9543(a)(1)(i).
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suppression court’s findings of fact, we are bound by them and “may reverse
only if the court erred in reaching its legal conclusions based upon the facts.”
Id. at 816. It is within the exclusive province of the suppression court to
“pass on the credibility of witnesses and determine the weight to be given to
their testimony.” Id. This Court will not disturb a suppression court’s
credibility determination absent a clear and manifest error. Commonwealth
v. Camacho, 625 A.2d 1242, 1245 (Pa. Super. 1993).
Whether the police have consent to enter and search a residence is an
issue of credibility “properly left to the trier of fact for resolution.”
Commonwealth v. Whack, 393 A.2d 417, 419 (Pa. 1978). Once inside a
residence, the plain view doctrine permits a warrantless seizure of evidence
when an officer views it from a lawful vantage point, and it is immediately
apparent that that object is incriminating. Commonwealth v. Petroll, 738
A.2d 993, 999 (Pa. 1999).
When the police do not find the contraband in question on the
defendant’s person, the Commonwealth must prove that the defendant
constructively possessed it. Commonwealth v. Kirkland, 831 A.2d 607,
611 (Pa. Super. 2003). The Commonwealth may establish constructive
possession by the totality of the circumstances. Commonwealth v. Parker,
847 A.2d 745, 750 (Pa. Super. 2004).
Furthermore, the “search incident to arrest” exception to warrantless
searches permits police to search an arrestee’s person as a matter of course,
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without a case-by-case adjudication of whether such search is likely to protect
officer safety or evidence. Commonwealth v. Simonson, 148 A.3d 792,
799 (Pa. Super. 2016).
Our review of the record, specifically the Notes of Testimony from the
suppression hearing, indicates that the court found credible the testimony of
Corporal Slattery and Officer Cutting that Ms. Yorgey gave Corporal Slattery
permission to enter the Yorgey home, and that the marijuana grinder was in
plain view on the apartment floor. In so concluding, the suppression court did
not commit a “clear and manifest error” and we will not disturb the
suppression court’s credibility determinations. We further conclude that the
police had probable cause to arrest Appellant for constructive possession of
the grinder, and, therefore, the search of Appellant’s person incident to arrest,
which yielded a small amount of marijuana, a lit marijuana bowl, and a “one-
hitter” was legal.
Simply stated, Appellant is dissatisfied that the suppression court did
not believe his wife’s story that she did not give the police consent to enter
the apartment. This is, at its core, a challenge to the credibility determinations
made by the suppression court. Credibility determinations are exclusively
within the province of the suppression court and may not be disturbed absent
a finding of clear and manifest error. See Commonwealth v. Camacho,
625 A.2d 1242, 1245 (Pa. Super. 1993). Our review of the record supports
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the suppression court’s findings of fact, and, not having detected a manifest
error, we decline to disturb the suppression court’s credibility determination.
Accordingly, Appellant’s claim that the trial court erred in denying his
Motion to Suppress lacks merit. Furthermore, after conducting a full
examination of all the proceedings as required pursuant to Anders, we discern
no non-frivolous issues to be raised on appeal. We therefore grant counsel’s
Petition to Withdraw and affirm Appellant’s Judgment of Sentence.
Petition to Withdraw granted. Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/18
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