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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GREGORY O. TUNSTALL :
:
Appellant : No. 3821 EDA 2016
Appeal from the Judgment of Sentence November 28, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002156-2016
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 21, 2018
Appellant, Gregory Tunstall, appeals from the Judgment of Sentence
entered by the Philadelphia County Court of Common Pleas after the court
found him guilty of Possession of a Controlled Substance with Intent to Deliver
(“PWID”), Possession of a Controlled Substance, and Possession of a Small
Amount of Marijuana.1 He challenges the sufficiency of the evidence
underlying the PWID conviction. Appellant’s counsel filed a Petition to
Withdraw as Counsel and a Brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
After careful review, we grant counsel’s Petition to Withdraw and affirm
Appellant’s Judgment of Sentence.
____________________________________________
1 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(31), respectively.
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We glean the facts from the certified record. On February 11, 2016,
Appellant was driving a rental vehicle with Anthony Davis as a passenger.
Patrolling Philadelphia Police Officers Jeffrey Opalski and Donald Ryder noticed
that Appellant’s rental vehicle had heavy front-end damage and stopped the
vehicle. N.T., 7/6/16, at 14.
Upon approaching the vehicle, the officers smelled marijuana. When
they asked Appellant if there was any marijuana in the vehicle, Appellant
produced a baggie of marijuana and two glass jars of codeine syrup. The
officers arrested Appellant. In conducting a search incident to arrest, Officer
Opalski recovered 109 Ziploc packets, each containing a white, powdery
substance that was later confirmed to be heroin. The officers also recovered
five hundred dollars in cash from Appellant’s wallet. Id. at 15-16.
On June 13, 2016, Appellant filed a Motion to Suppress the evidence.
After a hearing on July 6, 2016, the court denied the Motion. That same day,
Appellant proceeded to a bench trial at which the parties stipulated to the
items found in the vehicle and on Appellant’s person, as well as the lab report
identifying the substances. Id. at 21. Officer James Johnson, an expert
witness in drug packaging and dealing, also testified that the packaging and
concealment of the heroin was consistent with possessing heroin with the
intent to deliver it, as was the sum of cash Appellant carried and his use of a
rental vehicle. Id. at 66-70. The trial court subsequently found Appellant
guilty of all charges.
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The trial court sentenced Appellant on August 31, 2016, to a term of
four to eight years’ incarceration for the PWID conviction and a consecutive
term of six to twelve months’ incarceration for Possession of a Controlled
Substance. Upon reconsideration, the trial court merged Appellant’s
sentences for these two convictions and added five years’ reporting probation.
The court imposed no penalty for the marijuana conviction.
Appellant filed a timely Notice of Appeal. On April 18, 2018, counsel
filed an Anders Brief and a Petition to Withdraw. Appellant did not file a
response to counsel’s Anders Brief.
In his Anders Brief, counsel raises one issue:
Was the evidence sufficient to prove the defendant guilty beyond
a reasonable doubt?
Anders Brief at ix.
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 frivolous 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
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Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005); Santiago,
978 A.2d at 361 (detailing substantive requirements of an Anders Brief).
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. Yorgey, 188 A.3d 1190,
1197 (Pa. Super. 2018) (en banc) (noting that Anders requires the reviewing
court to “review ‘the case’ as presented in the entire record with consideration
first of issues raised by counsel.”).
Counsel in the instant appeal has complied with the above requirements.
We, thus review the issue raised in the Anders brief.
Sufficiency of the Evidence
Although raised as a general sufficiency challenge in the Anders Brief,
Appellant’s counsel addresses the sufficiency of the evidence supporting
Appellant’s PWID conviction.
This Court’s standard of review of the challenge to the sufficiency of
the evidence is well-settled:
The standard we apply in reviewing the sufficiency of the 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 the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
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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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015).
The Crimes Code has defined the offense of Possession of a Controlled
Substance With Intent to Deliver, in relevant part, as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
*****
(30) Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance
by a person not registered under this act, or a practitioner not registered
or licensed by the appropriate State board, or knowingly creating,
delivering[,] or possessing with intent to deliver, a counterfeit controlled
substance.
35 P.S. § 780-113(a)(30).
To establish the offense of Possession of a Controlled Substance With
Intent to Deliver, the Commonwealth must prove beyond a reasonable doubt
that Appellant both possessed a controlled substance and had the intent to
deliver it. Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super.
2003). In determining whether Appellant had the intent to deliver a controlled
substance, courts may consider several relevant factors, including “the
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manner in which the controlled substance was packaged, the behavior of the
defendant, the presence of drug paraphernalia, and large [] sums of cash[.]”
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007). Expert
opinion testimony may also be admitted to establish “whether the facts
surrounding the possession of controlled substances are consistent with [the]
intent to deliver rather than with [the] intent to possess [them] for personal
use.” Id at 1238. “The expert testimony of a witness qualified in the field of
drug distribution, coupled with the presence of drug paraphernalia, is sufficient
to establish intent to deliver.” Commonwealth v. Carpenter, 955 A.2d 411,
414 (Pa. Super. 2008).
In the instant case, the trial court concluded that the evidence was
sufficient to establish that Appellant illegally possessed heroin and had intent
to unlawfully deliver it. Upon being searched after his lawful arrest, the
officers found 109 baggies of heroin on Appellant’s person, specifically in his
crotch area. At trial, the parties stipulated to the items found during the
officers’ lawful search of Appellant’s person and vehicle. Significantly, Officer
Johnson, an expert in the field of drug packaging and distribution, testified
that the packaging and concealment of 109 individually wrapped baggies of
heroin is consistent with possessing heroin with the intent to deliver.
We have reviewed the entire record and conclude that it supports the
court’s guilty verdicts. We, thus, agree with counsel that the issue is
meritless.
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Moreover, after conducting an independent review of the record as
required by 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: 11/21/18
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