Com. v. Green, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEVIN GREEN,
Appellant No. 2531 EDA 2017
Appeal from the Judgment of Sentence Entered May 26, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005944-2015
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 25, 2018
Appellant, Kevin Green, appeals nunc pro tunc from the judgment of
sentence imposed on May 26, 2016, of an aggregate term of 18 to 36 months’
incarceration, imposed after he was convicted, following a non-jury trial, of
possession of a controlled substance. Appellant seeks to challenge the
discretionary aspects of his sentence, the weight of the evidence to support
his convictions, and the trial court’s denial of his pretrial motion to suppress
evidence. Additionally, his counsel, James R. Lloyd, III, Esq., seeks to
withdraw his representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
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* Retired Senior Judge assigned to the Superior Court.
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2009). After careful review, we affirm Appellant’s judgment of sentence and
grant counsel’s petition to withdraw.
Briefly, Appellant’s conviction stems from undercover officers’ observing
him sell a controlled substance - namely, phencyclidine (also known as PCP)
- on a public street in Philadelphia. After this sale, Appellant was stopped,
searched, and found to be in possession of PCP. He was charged with
possession of a controlled substance, 35 P.S. § 780-113(a)(16), and
possession with intent to deliver a controlled substance (PWID), 35 P.S. §
780-113(a)(30). Prior to trial, Appellant filed a motion to suppress the PCP
found in his possession. After a suppression hearing, the trial court denied
that motion. Appellant then proceeded to a non-jury trial on March 29, 2016,
at the close of which the court convicted him of the possession charge, and
acquitted him of the PWID offense.
Following the preparation of a presentence report, the trial court
conducted Appellant’s sentencing hearing on May 23, 2016. At the conclusion
of that proceeding, the court sentenced Appellant to 18 to 36 months’
incarceration. However, on May 26, 2016, the trial court sua sponte vacated
Appellant’s sentence and resentenced him to the same term of incarceration,
but added that Appellant was eligible for the Recidivism Risk Reduction
Initiative (RRRI) Program, 61 Pa.C.S. §§ 4501-4512.
Appellant did not file a post-sentence motion, or a direct appeal. On
January 3, 2017, he filed a petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, asserting that his trial counsel had acted
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ineffectively by not filing a post-sentence motion or a direct appeal on his
behalf. On August 4, 2017, the PCRA court entered two orders, one granting
Appellant leave to file a direct appeal nunc pro tunc, and the other denying
Appellant’s request to file a post-sentence motion nunc pro tunc.
On August 8, 2017, Appellant filed the present, nunc pro tunc appeal
from his May 26, 2016 judgment of sentence. On August 10, 2017, the trial
court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. In response, Attorney Lloyd filed a Rule 1925(c)(4)
statement, indicating his intent to file a petition to withdraw and an Anders
brief with this Court. Consequently, the trial court did not issue a Rule 1925(a)
opinion, but instead simply forwarded the certified record to this Court.
On January 22, 2018, Attorney Lloyd filed with this Court a petition to
withdraw. That same day, counsel also filed an Anders brief, addressing the
following three issues that Appellant seeks to raise on appeal:
[I.] Was the sentence imposed upon … [A]ppellant by the [trial]
court manifestly excessive?
[II.] Was the verdict against the weight of the evidence to the
degree that it shocks one’s conscious?
[III.] Did the trial court err when it denied [A]ppellant’s motion to
suppress PCP recovered from his pocket?
Anders Brief at 9.
In Attorney Lloyd’s petition to withdraw and Anders brief, he states that
these three issues are frivolous, and that there are no other, non-frivolous
issues that Appellant could pursue herein. Accordingly,
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this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted).
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In this case, Attorney Lloyd’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claims, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Lloyd also states in his petition to withdraw
that he has supplied Appellant with a copy of his Anders brief. Additionally,
he attached to his petition to withdraw a letter directed to Appellant, in which
he informs Appellant of the rights enumerated in Nischan. Accordingly,
counsel has complied with the technical requirements for withdrawal. We will
now independently review the record to determine if Appellant’s issues are
frivolous, and to ascertain if there are any other, non-frivolous issues he could
pursue on appeal.
With regard to Appellant’s first two issues, Attorney Lloyd concludes that
these claims are waived based on prior counsel’s failure to file a post-sentence
motion raising them with the trial court. See Anders Brief at 26-32. We are
compelled to agree. See Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.
Super. 2013) (finding a weight of evidence claim waived where the appellant
failed to comply with Pa.R.Crim.P. 607(A) by raising it in a pre-sentence
motion, did not address the issue orally prior to sentencing, and did not raise
it in a post-sentence motion); Commonwealth v. Bromley, 862 A.2d 598,
603 (Pa. Super. 2004) (“It is well settled that an [a]ppellant’s challenge to the
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discretionary aspects of his sentence is waived if the [a]ppellant has not filed
a post-sentence motion challenging the discretionary aspects with the
sentencing court.”) (citation omitted).
Notwithstanding Appellant’s waiver of these claims, we would still deem
them frivolous to raise on appeal. Initially, in regard to Appellant’s challenge
to the discretionary aspects of his sentence, he seeks to argue that his
sentence is excessive because the court imposed the statutory maximum term
of 3 years’ incarceration. See 35 P.S. § 780-113(b).1 Even if Appellant’s
claim constituted a substantial question for our review, the record does not
demonstrate any reason for this Court to overturn Appellant’s sentence. While
the trial court imposed an aggravated-range, statutory-maximum term of
incarceration, the court offered sufficient reasons on the record for fashioning
that sentence. See N.T. Sentencing Hearing, 5/23/16, at 14-16. Specifically,
the court stressed that Appellant had “17 arrests and 12 convictions, most of
which [were] for possession with intent to deliver….” Id. at 15. The court
essentially reasoned that Appellant had been given multiple opportunities to
rehabilitate himself, yet he repeatedly failed to do so, thus warranting a
lengthier sentence. Id. at 16. Additionally, as Attorney Lloyd notes in his
Anders brief,
[a]t the sentencing hearing, the trial court considered
[Appellant’s] prior criminal record, work history, history of drug
____________________________________________
1 Attorney Lloyd explains in his Anders brief that the three-year maximum
sentence applied to Appellant because he was previously convicted of a
violation of 35 P.S. § 780-113. See Anders Brief at 29 n.3.
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addiction, completion of programs while in state custody, familial
responsibilities, prior response to rehabilitative attempts, the
arguments of counsel for [Appellant] and the Commonwealth, and
[Appellant’s] allocution during which he showed remorse.
Anders Brief at 29 (footnote omitted; citing N.T. Sentencing Hearing at 3-
17). Counsel also points out that the trial court sua sponte vacated its original
sentence and resentenced him with RRRI eligibility.
Given this record, we would ascertain no abuse of discretion in the
sentence imposed by the trial court, even had Appellant preserved this issue
for our review. See Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.
Super. 2006) (“Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion. In this context, an abuse of discretion is not
shown merely by an error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court ignored or misapplied
the law, exercised its judgment for reasons of partiality, prejudice, bias or ill
will, or arrived at a manifestly unreasonable decision.”) (citation omitted).
Likewise, we would also discern no arguable merit to a weight-of-the-
evidence challenge, even if preserved below. The testimony at the hearing on
Appellant’s motion to suppress, which was incorporated into the record of his
non-jury trial that immediately followed, clearly demonstrates that the court’s
verdict was not contrary to the weight of the evidence. Specifically, as
Attorney Lloyd summarizes,
[a]t the suppression hearing, the Commonwealth presented the
testimony of Police Officer Eric Brooks. Officer Brooks testified
that on April 20, 2015, shortly after 7:00 p.m., he and his partner,
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Police Officer Caron, set up surveillance of the 2500 block of
Franklin Street in Philadelphia from a confidential location. At
approximately 8:00 p.m., the officer observed [Appellant] on the
southeast corner of Franklin and Huntington Streets. At
approximately 8:05 [p.m.], Officer Brooks observed a Latino male
wearing a black hat, a black T-shirt, and jeans walk on the west
side of the block. [Appellant] approached the unknown Latino
man, the two engaged in a brief conversation, and [Appellant]
removed a jar from his right front pants pocket. Officer Brooks
testified that [Appellant] unscrewed the jar and dipped a cigarette
into the jar. [Appellant] then handed the cigarette to unknown
Latino man in exchange for [an] unknown amount of currency.
The unknown man left the area travelling eastbound on
Huntington Street. Officer Brooks provided his description to
backup with instructions to stop the Latino man, but he was lost
in [the] area.
Officer Brooks further testified that at approximately 8:25
p.m., he observed a gray Dodge Charger pull onto the block and
park. The officer saw [Appellant] approach the driver of the car -
Margarita Ronan. The officer saw [Appellant] dip a cigarette into
the jar retrieved from his pocket and exchange the cigarette with
the driver for an unknown amount of currency. The car then left
the area and Officer Brooks gave the description and direction of
the vehicle to backup Officer Markowski. Officer Markowski
stopped the vehicle at 500 West Cumberland Street and arrested
the driver after recovering one Newport cigarette, dipped in PCP
from her.
Officer Brooks also testified that after this interaction,
[Appellant] left the area travelling eastbound on Huntington
Street. The officer testified that [Appellant] would go in and out
of his view periodically. At approximately 9:20 p.m., Officer
Brooks directed backup officers to stop [Appellant]. Officer Egan
stopped [Appellant] on 700 West Huntington Street and recovered
one clear glass jar with a black lid containing liquid PCP.
Officer Brooks testified that members of his surveillance
teams had made approximately 200 arrests on the 2500 block of
Franklin Street related to PCP sales. He characterized that b[l]ock
as the area’s “busiest” block for PCP sales and related that drug
dealers only sell … PCP there, and that the sellers are busy from
early in the morning until late at night.
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Officer Edward Markowski also testified. He related that the
PCP soaked cigarette that he recovered from the woman driving
the Dodge Charger was a Newport brand cigarette which she had
in her hand.
Officer Joseph Egan also testified. He related that the jar of
PCP which he recovered from [Appellant’s] right, front pants
pocket was ¾ full. Officer Egan did not recover any money from
[Appellant]. Officer Egan also recovered an opened box of
Newport cigarettes from [Appellant] at the time of his arrest. The
weight of the liquid PCP recovered from [Appellant] was 17 grams.
Anders Brief at 32-34 (citations to the record omitted).
In light of this record, we would not conclude that the trial court abused
its discretion in denying Appellant a new trial, based on a challenge to the
weight of the evidence, even had Appellant requested such relief in a post-
sentence motion. Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa.
2011) (“[A] new trial based on a weight of the evidence claim is only
warranted where the jury’s verdict is so contrary to the evidence that it shocks
one’s sense of justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and inferences of
record disclose a palpable abuse of discretion.”).
Additionally, the above-stated evidence convinces us that Appellant’s
third issue is also frivolous, as it is clear that the trial court properly denied
his pretrial motion to suppress the PCP recovered from his pants pocket.
Initially,
[o]ur standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. ... [W]e must consider only the
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evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of
the record as a whole. Those properly supported facts are binding
upon us and we may reverse only if the legal conclusions drawn
therefrom are in error.
Commonwealth v. Dixon, 997 A.2d 368, 372 (Pa. Super. 2010) (internal
citations and quotation marks omitted).
Here, in Appellant’s motion to suppress, he argued that the officers did
not possess probable cause to stop and search him. We will presume, for
purposes of our discussion herein, that when Appellant was stopped by Officer
Egan, he was subjected to the functional equivalent of a warrantless arrest,
thus requiring probable cause. See Commonwealth v. Collins, 950 A.2d
1041, 1046 (Pa. Super. 2008). Probable cause is established when the facts
and circumstances “which are within the knowledge of the officer at the time
of the arrest, and of which he has reasonably trustworthy information, are
sufficient to warrant a man of reasonable caution in the belief that the suspect
has committed or is committing a crime.” Commonwealth v. Thompson,
985 A.2d 928, 931 (Pa. 2009). We apply a totality of the circumstances test
in determining whether probable cause exists. Id. Further, where a search
is conducted incident to an arrest, officers may search both the person
arrested and the area within his immediate control. See Commonwealth v.
Simonson, 148 A.3d 792, 799 (Pa. Super. 2016).
Here, Officer Brooks, who ordered Officer Egan to arrest Appellant,
observed Appellant give two separate individuals a cigarette, which Appellant
had first dipped into a jar retrieved from his pocket. The latter of those two
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individuals was stopped and found to be in possession of a cigarette dipped in
what was believed to be PCP. Officer Brooks testified that the area in which
Appellant was observed was known for high volumes of PCP sales. Given this
evidence, Officer Brooks had probable cause to believe that Appellant was
engaging in criminal activity. Thus, Officer Brooks’ direction to Officer Egan
to conduct a warrantless arrest of Appellant was lawful, as was Officer Egan’s
subsequent search of Appellant’s person that revealed the PCP in his pants
pocket. Accordingly, we agree with Attorney Lloyd that Appellant’s challenge
to the trial court’s denial of his motion to suppress the PCP is frivolous.
In sum, Appellant’s first two issues are waived, and his third issue is
frivolous. Additionally, our independent review of the record reveals no other,
non-frivolous issues that Appellant could present on appeal. Consequently,
we affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/17
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