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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEFFREY DENNIS
Appellant No. 1506 MDA 2016
Appeal from the Judgment of Sentence August 19, 2016
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000583-2015
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 22, 2017
Appellant, Jeffrey Dennis, appeals from the judgment of sentence
entered after a jury found him guilty of possessing an artificial cannabinoid
with the intent to deliver. Additionally, Dennis’s appointed counsel, Stuart A.
Cilo, Esq., has filed a petition to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm Dennis’s judgment of sentence and grant
counsel’s petition to withdraw.
Attorney Cilo has substantially complied1 with the mandated procedure
for withdrawing as counsel. See id., at 361 (articulating Anders
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Counsel failed to cite to the record for the procedural history of this matter.
Counsel’s oversight has not impeded our review of this relatively simple
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requirements); 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). Dennis has not filed a response to counsel’s petition to
withdraw.
In his Anders brief, counsel discusses three possible issues for appeal.
First, he addresses the sufficiency of the evidence supporting Dennis’s
conviction.
As a general matter, our standard of review of sufficiency claims
require that we evaluate the record in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted).
The jury convicted Dennis of possessing a designer drug with the
intent to distribute it. See 35 P.S. § 780-113(a)(36). At least one of the
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criminal prosecution, and we therefore proceed to address the issues before
us.
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defense strategies at trial involved attacking the Commonwealth’s proof that
the compound found in Dennis’s possession was a designer drug. Designer
drugs are defined as substances other than those explicitly listed in the
schedules contained in the Controlled Substance, Drug, Device and Cosmetic
Act (“the Act”), and which either share a substantially similar chemical
structure to a listed drug, or which cause a substantially similar effect as a
listed drug. See 35 P.S. § 780-102.
The Commonwealth presented the expert testimony of forensic
scientist John Evans. Evans testified that the substance found in Dennis’s
possession was determined to be a synthetic cannabinoid known as AB-
CHMINACA. See N.T., Jury Trial, 7/12/16, at 39-40.
The Commonwealth also presented the expert testimony of toxicologist
J. Ward Donovan, M.D. Dr. Donovan testified that AB-CHMINACA has a
chemical structure that is substantially similar to marijuana, a drug that is
explicitly listed in the schedules of the Act. See id., at 33. It therefore has a
similar, if more powerful, effect as marijuana when used by a human. See
id.
This testimony is sufficient to support the jury’s finding that Dennis
possessed AB-CHMINACA and that the cannabinoid is a designer drug under
the Act. We therefore agree with counsel that this issue lacks arguable
merit.
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Next, counsel identifies a ruling on a motion in limine that permitted a
police detective to testify as an expert on the effect AB-CHMINACA has when
used by a human. Dennis argued against the qualification of the detective as
an expert on two grounds. First, he asserted that detective’s knowledge was
based purely on hearsay from arrestees. Second, he argued that the
detective could not positively link any of his knowledge directly to AB-
CHMINACA, as opposed to artificial cannabinoids in general.
However, as counsel notes in his Anders brief, any problem with this
ruling was nullified when the Commonwealth called Dr. Donovan to testify
regarding AB-CHMINACA. We therefore agree that this issue lacks arguable
merit.
Finally, counsel identifies a dispute at sentencing regarding Dennis’s
date of birth. This dispute was relevant to the computation of Dennis’s prior
record score due to a conviction for receiving stolen property that might
have been a juvenile adjudication. However, even assuming that the
conviction was a juvenile adjudication, Dennis’s prior record score for the
current sentence would have been “repeat felon,” or RFEL, according the
guidelines. See N.T., Sentencing, 8/19/16, at 3-4. No other issues were
raised at sentencing or in a post-sentence motion. We therefore agree with
counsel’s conclusion that this issue lacks arguable merit.
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After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2017
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