Com. v. Alford, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KADEEM SHATIM ALFORD :
:
Appellant : No. 988 MDA 2016
Appeal from the Judgment of Sentence March 29, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001237-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 03, 2017
Appellant, Kadeem Shatim Alford, appeals from the judgment of
sentence entered in the Lycoming County Court of Common Pleas, following
his jury trial convictions of one count each of knowing or intentional
possession of a controlled substance, delivery of a controlled substance,
possession of a controlled substance with the intent to deliver (“PWID”),
possession of drug paraphernalia, and criminal use of communication
facility.1 We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On April 20, 2015, Ms. Kristin Terry received a text message from an
____________________________________________
1
35 P.S. § 780-113(a)(16), (a)(30), (a)(32); 18 Pa.C.S.A. § 7512.
respectively.
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unknown number stating that “Big Blue” (Appellant’s alias) had heroin for
sale. Ms. Terry and Appellant arranged for the location of the heroin
purchase to be in the Domino’s Pizza parking lot in the City of Williamsport.
Ms. Terry and her female friend drove to meet Appellant for the heroin.
When the women arrived and Appellant entered the vehicle, the women
asked to sample the heroin.
That same day, the police were informed of an erratic driver traveling
along a highway in the City of Williamsport, and that the vehicle had turned
into the parking lot of a Domino’s Pizza. When the police arrived and
approached the vehicle, Captain Jody Miller observed two females, one in
the driver seat and the other in the passenger seat, and one male,
Appellant, in the rear driver’s side seat. The driver, Ms. Terry, had in her
hand a hypodermic needle and two blue glassine baggies filled with a
substance. Appellant slowly tried to hide the forty-three remaining glassine
baggies from Captain Miller, by pushing them into the area between the
vehicle’s center console and the driver’s seat, near Ms. Terry’s leg. When
Captain Miller saw Appellant’s furtive actions, she ordered the passengers to
show their hands. Instead, Appellant attempted to escape the vehicle and
flee on foot.
Captain Miller apprehended Appellant, arrested him, and searched
him. Captain Miller discovered approximately $200.00 in United States
currency and two cellular phones. The police never recovered the cellular
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phone records of Appellant’s phones or Ms. Terry’s phone. At trial, the
Commonwealth’s expert testified that people who sell illegal drugs commonly
carry two phones, one for their illegal business and the other for their
personal use.
On May 5, 2015, the Commonwealth filed a criminal complaint against
Appellant charging him with knowing or intentional possession of a
controlled substance, delivery of a controlled substance, PWID, possession of
drug paraphernalia, and criminal use of communication facility. A jury trial
was held on January 25, 2016. The following day, the jury convicted
Appellant of all charges. On March 29, 2016, the court sentenced Appellant
to an aggregate term of 33 to 132 months’ imprisonment, plus a fine and
the costs of prosecution.
On April 8, 2016, Appellant filed a post-sentence motion, challenging
the discretionary aspects of his sentence and the sufficiency of the evidence
with respect to each of Appellant’s convictions. On May 23, 2016, the court
denied Appellant relief. Appellant timely filed a notice of appeal on June 16,
2016. On June 28, 2016, the court ordered Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied on July 18, 2016. On October 26, 2016, counsel
filed an Anders brief and a petition for leave to withdraw in this Court.
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
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493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
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Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated October 26,
2016). In the Anders brief, counsel provides a summary of the facts and
procedural history of the case. Counsel’s argument refers to relevant law
that might arguably support Appellant’s issues. Counsel further states the
reasons for his conclusion that the appeal is wholly frivolous. Therefore,
counsel has substantially complied with the requirements of Anders and
Santiago.
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Counsel raises the following issues on Appellant’s behalf:
WHETHER AN APPLICATION TO WITHDRAW AS COUNSEL
SHOULD BE GRANTED WHERE COUNSEL HAS
INVESTIGATED THE POSSIBLE GROUNDS FOR APPEAL
AND FINDS THE APPEAL FRIVOLOUS[?]
WHETHER THE COMMONWEALTH PRESENTED SUFFICIENT
EVIDENCE TO CONVICT [APPELLANT] OF DELIVERY OF A
CONTROLLED SUBSTANCE, CRIMINAL USE OF A
COMMUNICATION FACILITY, POSSESSION OF A
CONTROLLED SUBSTANCE, AND POSSESSION OF DRUG
PARAPHERNALIA[?]
(Anders Brief at 6).
Appellant argues the Commonwealth presented insufficient evidence to
convict Appellant of each of his convictions, even though the Commonwealth
questioned Ms. Terry and Captain Miller regarding the events leading up to
Appellant’s arrest, and the parties stipulated that the chain of custody of the
glassine baggies had not been broken and that the substance in the baggies
tested positive for heroin. Appellant concludes the record evidence failed to
support each of his convictions. We disagree.
A challenge to the sufficiency of the evidence implicates the following
legal principles:
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 innocence. Any doubts regarding a
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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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Controlled Substance, Drug, Device and Cosmetic Act defines the
offenses of possession of a controlled substance, delivery of a controlled
substance, PWID, and possession of drug paraphernalia, as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
* * *
(16) Knowingly or intentionally possessing a
controlled or counterfeit substance by a person not
registered under this act, or a practitioner not
registered or licensed by the appropriate State board,
unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a
practitioner, or except as otherwise authorized by this
act.
* * *
(30) Except as authorized by this act, the
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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.
* * *
(32) The use of, or possession with intent to use,
drug paraphernalia for the purpose of planting,
propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing,
repacking, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the
human body a controlled substance in violation of this
act.
* * *
35 P.S. § 780-113(a)(16), (30), (32). Additionally, PWID requires the
Commonwealth to prove beyond a reasonable doubt that the defendant both
possessed the controlled substance and had the intent to deliver:
When determining whether a defendant had the requisite
intent to deliver, relevant factors for consideration are the
manner in which the controlled substance was packaged,
the behavior of the defendant, the presence of drug
paraphernalia, and large sums of cash. Expert opinion
testimony is also admissible concerning whether the facts
surrounding the possession of controlled substances are
consistent with an intent to deliver rather than with an
intent to possess it for personal use. 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)
(internal citations and quotation marks omitted).
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Section 7512 of the Pennsylvania Crimes Code defines the offense of
criminal use of communication facility in relevant part as follows:
§ 7512. Criminal use of communication facility
(a) Offense defined.—A person commits a felony of
the third degree if that person uses a communication
facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony
under this title or under [The Controlled Substance, Drug,
Device and Cosmetic Act]. …
* * *
(c) Definition.—As used in this section, the term
“communication facility” means a public or private
instrumentality used or useful in the transmission of signs,
signals, writing, images, sounds, data or intelligence of
any nature transmitted in whole or in part, including, but
not limited to, telephone, wire, radio, electromagnetic,
photoelectronic or photo-optical systems or the mail.
18 Pa.C.S.A. § 7512 (a), (c). “[T]he Commonwealth must prove beyond a
reasonable doubt that: (1) [Appellant] knowingly and intentionally used a
communication facility; (2) [Appellant] knowingly, intentionally or recklessly
facilitated an underlying felony; and (3) the underlying felony occurred.”
Commonwealth v. Moss, 852 A.2d 374, 382 (Pa.Super. 2004). Facilitation
has been defined as “any use of a communication facility that makes easier
the commission of the underlying felony.” Id.Instantly, the trial court provided the following reasoning with regard
to Appellant’s sufficiency of the evidence issue as follows:
[Appellant] contends the Commonwealth failed to present
sufficient evidence to establish that he possessed the
controlled substance in question. At trial Kristin Terry
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testified that after receiving a text message from “Big
Blue” she was instructed to go to Domino’s in Williamsport.
Upon arriving at Domino’s [Appellant] got into the back
seat of her vehicle. When [Ms.] Terry asked to “try the
product” [Appellant] handed her two glassine bags. Upon
the almost immediate arrival of the police, Ms. Terry
testified that [Appellant] placed heroin between the
console of her vehicle and her leg. Trooper Miller also
testified as to “furtive” actions by [Appellant] in the back
seat of the vehicle. This testimony was clearly sufficient
for the jury to find that [Appellant] actually possessed the
heroin in question.
While for reasons we were simply unable to understand at
trial, the arresting officers failed to conduct any
investigation with respect to a text message or the cell
phones taken from [Appellant]. On the other hand, Ms.
Terry clearly testified that she received a text message on
a communication facility, and that consistent with that text
message [Appellant] got into the back seat of her vehicle.
The jury was certainly able to reach the conclusion that it
was [Appellant] who sent the text message through the
use of a communication facility.
(Trial Court Opinion, filed on May 23, 2016, at 1-2). The record supports
the court’s analysis. Appellant text messaged Ms. Terry stating he had
heroin for sale. Ms. Terry and Appellant arranged for the location of the
heroin purchase. When Ms. Terry and her female friend met Appellant, the
women asked to sample Appellant’s heroin. Shortly after Captain Miller
arrived at the scene, Appellant tried to hide the remaining glassine baggies
near Ms. Terry’s leg. Following Appellant’s arrest, Captain Miller discovered
two cellular phones on Appellant, which the Commonwealth’s expert testified
are items consistent with those belonging to a person who sells drugs.
Based on the foregoing, the Commonwealth presented sufficient evidence to
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support each of Appellant’s convictions. See Jones, supra; 35 P.S. § 780-
113(a)(16), (30), (32); Carpenter, supra; 18 Pa.C.S.A. § 7512 (a); Moss,
supra. Accordingly, we affirm the judgment of sentence, and following our
independent review of the record, we grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2017
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