Com. v. Swan, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ADAM LENARD SWAN :
:
Appellant : No. 1649 MDA 2018
Appeal from the Judgment of Sentence Entered April 27, 2018
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0004687-2017
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 09, 2019
Appellant, Adam Lenard Swan, appeals from the judgment of sentence
entered on April 27, 2018 in the Court of Common Pleas of York County. His
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738(1969), as refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).1 In the brief, Appellant contends that the guilty verdicts on aggravated
assault and possession charges were against the weight of the evidence and
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1 Upon review of counsel’s original Anders brief, we determined the brief did
not comply with the substantive mandates of Santiago. Consequently, we
remanded for filing of a compliant brief. Counsel filed a revised brief in
accordance with our remand order and represented that he provided a copy
the brief and petition to withdraw to Appellant along with a letter dated
October 7, 2019 advising Appellant of his current filings. We offered the
Commonwealth the opportunity to respond to the amended Anders brief. By
letter of October 16, 2019, the Commonwealth indicated there were no issues
raised in the amended Anders brief warranting a response.
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that the trial court erred by denying his motion to suppress.2 His counsel
concurrently filed a petition for leave to withdraw. Following review, we grant
counsel’s petition for leave to withdraw and affirm Appellant’s judgment of
sentence.
We begin by discussing counsel’s request to withdraw, a task we must
undertake regardless of the facts and prior to any discussion of the merits of
any issues on appeal. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005). As this Court recognized in Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago did
not change the procedural requirements for requesting withdrawal from
representation. As outlined in Cartrette:
Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous;
2) furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel or
raise additional arguments that the defendant deems worthy of
the court’s attention.
Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)).
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2 In Appellant’s post-sentence motion, appointed trial counsel Jennifer M.
Smith raised the weight of the evidence issue as well as an issue regarding
calculation of Appellant’s sentence. The trial court denied the motion by order
entered September 4, 2018, one week after the trial court entered an order
withdrawing the appointment of Attorney Smith and simultaneously
appointing current counsel William H. Graff, Jr. On October 22, 2018, Attorney
Graff filed a Rule 1925(b) statement raising the weight and suppression issues
presented in his Anders brief.
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We conclude counsel has satisfied the procedural requirements set forth
in Anders. In his petition to withdraw, counsel explains his conclusion, based
on a “conscientious examination of the entire record, including all notes of
testimony, that an appeal of the lower court’s Order would be frivolous.”
Petition to Withdraw, 10/7/19, at ¶ 9. In addition, counsel represented that
he furnished a copy of the appellate brief to Appellant and advised Appellant
of his right to retain new counsel or act on his own behalf to raise additional
arguments or points for this Court’s consideration. Id. at ¶ 11.3
Having concluded counsel satisfied the procedural requirements of
Anders, we next ascertain whether the brief satisfied the substantive
mandates prescribed in Santiago. In Santiago, our Supreme Court
announced:
[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
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3 Appellant filed a pro se brief with this Court after counsel filed his original
brief and petition to withdraw. In that brief, Appellant asserted trial court
error regarding the motion to suppress and a miscarriage of justice with
respect to allegedly false testimony of two police officers. Appellant’s Pro Se
Brief at 28-30. In our remand order, we authorized Appellant to supplement
his pro se brief within 30 days of counsel’s revised filing. By letter received
on November 8 and docketed on November 12, 2019, Appellant represented
to this Court that he did not receive certain documents, including our
September 19, 2019 memorandum and counsel’s revised Anders brief. He
suggested counsel did not have his best interests in mind and requested that
the appeal be decided on the argument presented in his pro se brief. As
reflected below, we have considered the argument presented in that filing.
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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.
Santiago, 978 A.2d at 361.
In the Anders brief, counsel included a summary of the procedural
history. Anders Brief at 7-8. While counsel did not set forth the relevant
facts in the “factual history” segment of the brief, we acknowledge he did
incorporate facts, with citations to the record, in the argument section of the
brief. Id. at 10-13. Counsel has generally satisfied the first requirement.
The second required element of an Anders brief is to reference anything
in the record that counsel believes arguably supports the appeal. In his brief,
counsel raises two issues in two questions presented, i.e., 1) whether the
verdicts of aggravated assault and possession with intent to deliver (“PWID”)
were against the weight of the evidence, and 2) whether the trial court erred
in denying Appellant’s pre-trial motion to suppress. Anders Brief at 6.
Counsel provides citations to the record, highlighting the testimony that could
support Appellant’s challenge to the verdicts and his challenges to the court’s
denial of his motion to suppress. Id. at 10-17. We conclude counsel has
satisfied the second Anders requirement.
The third element of Anders requires counsel to set forth the conclusion
that the appeal is frivolous. Counsel offers that conclusion with respect to
each of the two issues presented. The fourth element requires counsel to
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state his reasons for concluding that the appeal is frivolous. In his argument,
counsel has done so, with citations to case law, with respect to each of the
two issues presented. Therefore, counsel has satisfied the substantive
requirements of Anders.
Having determined the procedural and substantive requirements of
Anders are satisfied, we must conduct our own independent review of the
record to determine if the issues identified in this appeal are, as counsel
asserts, frivolous, or if there are any other meritorious issues present in this
case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744) (“[T]he
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.”).
As noted above, in the Anders brief, Appellant first argues the verdicts
of guilty of aggravated assault and PWID were against the weight of the
evidence. As the trial court recognized, “A challenge to the weight of the
evidence is directed to the discretion of the trial judge, who heard the same
evidence and who possesses only narrow authority to upset a jury verdict.”
Rule 1925(a) Opinion, 11/27/18, at 2 (quoting Commonwealth v. Sanchez,
36 A.3d 24, 27 (Pa. 2011)). Further, “[r]elief on a weight of the evidence
claim is reserved for ‘extraordinary circumstances, when the jury’s verdict is
so contrary to the evidence as to shock one’s sense of justice and the award
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of a new trial is imperative so that right may be given another opportunity to
prevail.” Id.As our Supreme Court has instructed:
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted)
(quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)
(emphasis in original)).
The trial court concluded that the evidence supported the jury’s guilty
verdict for aggravated assault. The court noted testimony revealing that
Appellant attempted to cause bodily injury to an officer who was attempting
to place Appellant in custody for possession of marijuana. According to the
officer, Appellant grabbed the officer’s taser and attempted to deploy it in the
direction of the officer’s head. The evidence also reflected that Appellant
possessed drugs, bags, cash and a cell phone when he was arrested. In
addition, an expert testified that the amount of cocaine in Appellant’s
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possession supports a finding that Appellant possessed it with the intent to
deliver. Moreover, Appellant admitted selling drugs. The trial court
concluded, in light of the direct and circumstantial evidence presented by the
Commonwealth, the jury’s verdicts did not shock the court’s sense of justice.
Rule 1925(a) Opinion, 11/27/18 at 2-3. Based on our review of the record,
we find no abuse of discretion on the part of the trial court in concluding
verdicts are not against the weight of the evidence.
Appellant also contends the trial court erred in denying his motion to
suppress. As our Supreme Court has instructed:
[O]ur standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted). In its Rule 1925(a) opinion, the trial court summarized evidence,
with citations to the record, describing Appellant’s arrest. In light of the
evidence, the court determined the initial interaction was a mere encounter
“up until the point Officer Aderhold spotted the bag of marijuana and gave the
code to Officer Pelton to take [Appellant] into custody.” Rule 1925(a) Opinion,
11/27/28, at 5. At that point, “the encounter became an arrest or ‘custodial
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detention’ which must be supported by probable cause.” Id. The officers had
probable cause to arrest Appellant, the court concluded, “because of the bag
of marijuana [Officer Aderhold observed] in [Appellant’s] pocket.” Id. at 6.
Based on our review, we find the trial court’s factual findings are
supported by the record and the legal conclusions drawn from those facts are
correct. Therefore, we discern no error in the trial court’s denial of Appellant’s
motion to suppress.
We next consider whether the record supports any non-frivolous
arguments. We note Appellant raised two issues in his pro se brief. The first,
a claim of error relating to the motion to suppress, we have addressed above.
The second is a claim that “a miscarriage of justice occurred when the
Commonwealth used false testimony of Police Officer Pelton and Police Officer
Aderhold to obtain [a] conviction.” Appellant’s Pro Se Brief, at 3. In essence,
Appellant contends the officers lied during Appellant’s suppression hearing
about the descriptions provided to them by the 9-1-1 dispatcher and that the
suppression court judge relied on that false testimony when he found the
officers had reasonable suspicion to arrest Appellant. Appellant’s Brief at 28-
30. The testimony of the officers indicates they were responding to a report
of shots fired near a school. They received descriptions of individuals in the
vicinity that included not only an individual wearing a camo sweatshirt but
also a black male wearing a black hoodie. Appellant fit that second
description. Although that description was not included in the 9-1-1 dispatch
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presented at the hearing, the officers explained that there was chatter in
addition to the 9-1-1 dispatch that included the description fitting Appellant.
Appellant is not entitled to relief on this issue.
In addition to considering the issues Appellant raised in his pro se brief,
we have reviewed the record to ascertain whether there are any non-frivolous
issues that could be raised on Appellant’s behalf. Our review has not revealed
any non-frivolous issues.
In summary, we agree with counsel that any challenge based on
weight of the evidence or denial of Appellant’s motion to suppress is frivolous.
Our independent review of the record does not reveal any non-frivolous
arguments available to Appellant. We therefore affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Counsel’s petition to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2019
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