Com. v. Kennedy, H. ( 2019 )

J-S71034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD KENNEDY :
:
Appellant : No. 3341 EDA 2017
Appeal from the Judgment of Sentence January 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009727-2015
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 11, 2019
Appellant, Harold Kennedy, appeals from the January 20, 2017
Judgment of Sentence entered in the Philadelphia County Court of Common
Pleas following his conviction of Possession With Intent to Deliver (“PWID”)
and Possession of a Controlled Substance (“Possession”).1 He challenges the
weight and sufficiency of the Commonwealth’s evidence and the discretionary
aspects of his sentence. Appellant’s counsel has 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.
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1 35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
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The facts as gleaned from the record, including the Notes of Testimony
from Appellant’s July 22, 2016 non-jury trial, are as follows.2 At 9:45 PM on
July 30, 2015, Officer Thomas LaCorte and his partner, Officer Aniyah Galarza,
were patrolling in an unmarked car in the 7100 block of Georgian Road in
Philadelphia. As the officers drove past the intersection of 71st Street and
Georgian Road, Officer LaCorte, who was driving the police vehicle, saw
Appellant talking to a man later identified as Ryan Sheridan. Appellant and
Sheridan eventually walked towards the rear of one of the homes. Officer
LaCorte saw Sheridan hand Appellant money. Appellant then pulled out an
amber-colored pill bottle, took a pill from the bottle, and handed it to Sheridan.
The officers stepped out of the car, and identified themselves as police.
Sheridan immediately dropped the pill to the ground and started running.
Officer LaCorte reached out to apprehend Appellant, and Appellant threw the
amber pill bottle over a fence. After arresting Appellant, Officer LaCorte
recovered the pill thrown by Sheridan and the amber pill bottle thrown by
Appellant. The pill was a green Oxycodone pill stamped "A-214." The pill
bottle contained 119 green Oxycodone pills also stamped "A-214." The pill
bottle had the name “Desirae Collier” on it. The police also recovered $230 in
assorted bills on Appellant's person.
Appellant's brother, Germane Muchison, also testified at trial. He
claimed that he was with Appellant on the night of the crime. According to
____________________________________________
2 Attorney Joseph Santaguida represented Appellant at trial and sentencing.
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Muchison, Appellant was merely standing nearby a "Caucasian male" when
police arrived, and never handed the man anything.
Following Appellant’s trial, the court convicted him of PWID and
Possession. On January 20, 2017, the trial court held a sentencing hearing.
The court considered a Pre-Sentence Investigation Report, as well as
argument from counsel, and a statement from Appellant before sentencing
Appellant to a term of 3½ to 7 years’ incarceration for his PWID conviction.3
Appellant did not file a Post-Sentence Motion or a timely Notice of Appeal
from his Judgment of Sentence.
On May 1, 2017, Appellant filed a Petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, after which the
PCRA court appointed counsel and reinstated Appellant’s direct appeal rights
nunc pro tunc. This timely appeal from Appellant’s Judgment of Sentence
followed.
On November 16, 2017, counsel filed a Statement of Intent to File an
Anders Brief pursuant to Pa.R.A.P. 1925(c)(4).4 On July 20, 2018, counsel
filed an Anders Brief and a Petition to Withdraw. Appellant did not file a pro
se or counselled response to either the Brief or the Petition.
Before we address the merits of this appeal, we must determine whether
counsel has complied with the procedures provided in Anders and its progeny.
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3 Appellant’s Possession conviction merged for sentencing purposes.
4 The trial court did not issue a Rule 1925(a) Opinion.
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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
Commonwealth v. Millisock, 873 A.2d 748, 751 (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.
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 issues raised in the Anders
Brief.
In his Anders Brief, counsel indicated that Appellant wished to raise the
following three issues on appeal:
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1. Was the sentence imposed upon [Appellant] manifestly
excessive?
2. Was the verdict against the weight of the evidence to such a
degree that it shocks one’s conscious?
3. Is the competent evidence of record legally sufficient to support
the convictions in this matter?
Anders Brief at 9.
Discretionary Aspects of Sentencing
The first issue presented in the Anders Brief challenges the
discretionary aspects of Appellant’s sentence, which Appellant alleges is
manifestly excessive. See Commonwealth v. Lutes, 793 A.2d 949, 964
(Pa. Super. 2002) (stating that an assertion that sentence is manifestly
excessive challenges the discretionary aspects of sentencing). Challenges to
the discretionary aspects of sentencing do not entitle an appellant to an appeal
as of right. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super.
2015). “An appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence.” Id.(citation and quotation omitted). The test includes: (1) preserving the issue
in the court below; (2) filing a timely Notice of Appeal; (3) including a
Pa.R.A.P. 2119(f) Statement; and (4) raising a substantial question for our
review. Id. at 797-98. (citation omitted)
Here, Appellant did not raise his challenge to the discretionary aspects
of his sentence by raising it orally at his sentencing hearing or in a written
post-sentence motion. Thus, Appellant has waived this issue. See
Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa. Super. 2006)
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(discretionary sentencing claim waived where the defendant failed to preserve
it either in an objection at sentencing or in a timely post-sentence motion).
Weight of the Evidence
The second issue presented in the Anders Brief challenges the weight
the court gave to the Commonwealth’s evidence. Pursuant to the
Pennsylvania Rules of Criminal Procedure, a weight of the evidence claim must
be “raised with the trial judge in a motion for a new trial: (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.” Pa.R.Crim.P. 607.
Our review of the record indicates that Appellant failed to raise his
challenges to the weight of the evidence, either orally or in writing at or before
sentencing, or in a Post-Sentence Motion. Thus, Appellant has also waived
his weight of the evidence claim. See Commonwealth v. Kinney, 157 A.3d
968, 972 (Pa. Super. 2017) (failure to raise a challenge to the weight of the
evidence before the trial court results in waiver).
Sufficiency of the Evidence
Last, the Anders Brief challenges the sufficiency of the evidence in
support of Appellant’s PWID and Possession convictions. In particular,
Appellant claims that the evidence in support of his convictions was insufficient
because: (1) the Oxycodone was not physically recovered from his person,
(2) the pill bottle had another person's name on it, and (3) his brother testified
that he saw Mr. Kennedy's arrest but did not mention seeing him drop the pill
bottle containing Oxycodone. Anders Brief at 34-36. Notably, Appellant does
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not challenge the evidence supporting the “intent to deliver” element of PWID.
Thus, Appellant essentially challenges only the “possession” element of these
offenses.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review
claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and
citations omitted). “Further, a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact—while passing on the credibility
of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence.” Id. “In conducting this review, the appellate court
may not weigh the evidence and substitute its judgment for the fact-finder.”
Id.The Crimes Code has defined the offense of PWID, 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
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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 PWID, 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 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.” Commonwealth v. Bricker, 882 A.2d 1008, 1015 (citation
omitted).
Evidence is sufficient to support a conviction for Possession if the
Commonwealth shows that the defendant, “[k]nowingly or intentionally
possess[ed] a controlled or counterfeit substance[.]” 35 P.S. § 780-
113(a)(16).
It is well-settled that when an individual is found guilty of possessing
contraband which was not found on his person, as in the case at bar, the
Commonwealth is required to prove that he had constructive possession or
joint constructive possession of the contraband. See Bricker, 882 A.2d at
1014. Constructive possession is a legal fiction; it is an inference from a set
of facts that the defendant more likely than not had control of contraband that
was not found on his person. Commonwealth v. Mudrick, 507 A.2d 1212,
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1213 (Pa. 1986). The Pennsylvania Supreme Court defines constructive
possession as “conscious dominion” which is “the power to control the
[contraband] and the intent to exercise that control.” Commonwealth v.
Johnson, 26 A.3d 1078, 1093 (Pa. 2011) (citation and quotation omitted).
Constructive possession is inferred from the totality of the circumstances, and
circumstantial evidence may be used to establish constructive possession. Id.
at 1094.
In the instant case, the trial court, sitting as the fact-finder, found
credible Officer LaCorte’s testimony that he first saw Sheridan hand Appellant
money, and then saw Appellant pull out an amber-colored pill bottle, take a
pill from the bottle, and hand it to Sheridan. The court also believed Officer
LaCorte’s testimony that, after he and his partner identified themselves to
Appellant, Sheridan dropped a pill to the ground and Appellant jettisoned an
amber-colored pill bottle over a fence. Then, Officer LaCorte testified that,
after arresting Appellant, Officer LaCorte recovered the pill thrown by
Sheridan and the amber pill bottle thrown by Appellant. The pill was a green
Oxycodone pill stamped "A-214." The pill bottle contained 119 green
Oxycodone pills also stamped "A-214." The court, thus, concluded that
Appellant illegally possessed Oxycodone and did so with the intent to
unlawfully deliver it.
Following our review, and considering all of the evidence admitted at
trial in the light most favorable to the Commonwealth as verdict winner, we
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conclude there is sufficient evidence to enable trial court to find every element
of the crime beyond a reasonable doubt.
We agree with counsel that the issues raised in the Anders Brief are
wholly frivolous. Furthermore, our independent review of the record,
conducted in accordance with Yorgey, supra, confirms counsel’s assertion
that there are no issues of merit to be considered by this Court and this appeal
is, thus, wholly frivolous. Thus, we grant counsel’s Petition to Withdraw and
affirm Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed. Petition to Withdraw granted.
Judge Panella joins the memorandum.
Judge Nichols did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/19
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