Com. v. Jones, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM JONES
Appellant No. 1977 MDA 2013
Appeal from the Judgment of Sentence September 13, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002609-2012
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 24, 2015
William Jones appeals from the judgment of sentence entered
September 13, 2013, in the Luzerne County Court of Common Pleas. The
trial court imposed an aggregate sentence of 36 to 72 months’ imprisonment
following Jones’s conviction of possession with intent to deliver (PWID)
heroin, possession of heroin, and possession of a small amount of
marijuana.1 Contemporaneous with this appeal, Jones’s counsel has filed a
petition to withdraw from representation and an Anders brief.2 Counsel’s
Anders brief challenges the trial court’s denial of Jones’s pretrial motion to
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1
35 P.S. §§ 780-113(a)(30), (16), and (31), respectively.
2
Anders v. California, 386 U.S. 738 (1967). See also Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago,
978 A.2d 349, 361 (Pa. 2009)
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suppress physical evidence and a written statement, as well as the
sufficiency and weight of the evidence supporting the convictions. For the
reasons set forth below, we affirm the judgment of sentence and grant
counsel’s petition to withdraw.
The facts underlying Jones’s arrest and conviction are as follows. On
July 15, 2012, at approximately 1:00 p.m., Officer Robert Collins, of the
Wilkes-Barre Police Department, was on routine patrol in the Boulevard
Town Homes area.3 Officer Collins noticed a car parked too close to the
corner on South Welles and East Northampton Street. When he approached,
he observed Jones in the driver’s seat and Keith Iris, a known heroin user,
leaning inside the driver’s side window. N.T., 7/8-9/2013, at 36, 47. Officer
Collins pulled his police cruiser parallel to Jones’s vehicle. When Jones saw
him, Jones quickly dropped something out of his left hand. Officer Collins
exited his cruiser, and asked Jones to step out of his vehicle. When he did,
the officer immediately noticed a “bundle of heroin in between the doorjamb
and the seating area of the driver’s side.”4 Id. at 37. Thereafter, Officer
Collins placed Jones under arrest, and during a search incident to arrest
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3
At the suppression hearing, Officer Collins testified he had been a patrol
officer for six and one-half years, and had made approximately 500 arrests
of “people engaged in drug activity.” N.T., 5/16/2013, at 7. He reiterated
that testimony at trial. N.T., 7/8-9/2013, at 33-34.
4
Officer Collins stated he had seen heroin “[m]aybe 500 times, a lot” during
the course of his job, and it was “immediately apparent” to him that the
bundle on the floor of the car was heroin. Id. at 38.
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uncovered 16 bags of heroin, “along with a couple bags of marijuana[,]”and
a total of $1,597.00 in cash, secreted in his pockets. 5 Id. at 39-40. The
officer did not find any needles or other evidence of drug use paraphernalia.
Officer Collins transported Jones to the police station, where Jones waived
his Miranda6 rights and provided the following written statement to police:
“I had 26 bags of dope on me at the time of my arrest. Because I did have
them on me, I was planning on selling them.”7 Id. at 45.
Jones was charged with PWID, possession of heroin, and possession of
a small amount of marijuana. He filed a motion to suppress both the
evidence recovered during the “stop” and the statement he provided to
police. The trial court conducted a suppression hearing, and, on May 30,
2013, denied Jones’s motion. On July 9, 2013, a jury returned a verdict of
guilty on all charges. Jones was sentenced on September 13, 2013, to an
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5
The parties stipulated at trial that the total aggregate weight of the heroin
recovered was .74 grams, and the total aggregate weight of the marijuana
recovered was 1.99 grams. Id. at 86-87.
6
Miranda v. Arizona, 384 U.S. 436 (1966).
7
At trial, Jones testified he was a passenger in the parked car and that Iris
was leaning in the window, offering to sell him heroin. N.T., 7/8-9/2013, at
92-95. Although he admitted he had heroin on his person, Jones testified
the drugs were for his personal use, and the bundle of heroin in the car was
not his. Id. at 95-97. Furthermore, Jones testified that, earlier that day, he
took “a couple of Vicodins and … snorted a bag of heroin.” Id. at 97. Jones
claimed to have no memory of signing a written statement at the police
station. Id. at 101-102.
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aggregate term of 36 to 72 months’ imprisonment. He filed a timely post-
sentence motion to modify his sentence, which the trial court denied on
September 23, 2013. This timely appeal followed.
When direct appeal counsel files a petition to withdraw and
accompanying Anders brief, we must first examine the request to withdraw
before addressing any of the substantive issues raised on appeal.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). Here, our review of the record reveals that counsel has substantially
complied with the requirements for withdrawal outlined in Anders, supra,
and its progeny. Specifically, counsel filed a petition for leave to withdraw,
in which he states his belief that the appeal is frivolous, filed an Anders
brief pursuant to the dictates of Santiago, supra, furnished a copy of the
Anders brief to Jones, and advised Jones of his right to retain new counsel
or proceed pro se. Commonwealth v. Ferguson, 761 A.2d 613, 616 (Pa.
Super. 2000). Moreover, the record contains no additional correspondence
from Jones. Accordingly, we will proceed to examine the record and make
an independent determination of whether the appeal is wholly frivolous.
Preliminarily, however, we must determine whether Jones’s claims are
waived based on his failure to file a timely concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). While his notice of
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appeal was pending, Jones filed a PCRA8 petition challenging the stewardship
of trial counsel. The trial court dismissed the petition, without prejudice, as
premature. See Order, 10/31/2013. However, trial counsel then moved for
the appointment of conflict counsel. In an order dated November 26, 2013,
the court appointed new counsel, and directed him to file a Rule 1925(b)
statement on or before December 16, 2013. See Order, 11/26/2013. After
receiving an extension of time prolonging the deadline until December 27,
2013, counsel still failed to file a concise statement. Accordingly, on
February 26, 2014, the trial court filed an opinion deeming all of Jones’s
claims waived on appeal for his failure to file a concise statement. See
Pa.R.A.P. 1925(b)(4)(vii). See also Trial Court Opinion, 2/26/2014.
Thereafter, counsel filed, in this Court, an Anders brief and accompanying
petition to withdraw.
Pursuant to Rule 1925, counsel who determines an appeal is frivolous
and desires to withdraw from representation may file “a statement of intent
to file an Anders/McClendon brief in lieu of filing a [Rule 1925(b)]
Statement.” Pa.R.A.P. 1925(c)(4). However, counsel’s failure to file any
Rule 1925 statement, when ordered to do so by the trial court, may be
considered ineffectiveness per se, in which case “the appellate court shall
remand for the filing of a Statement nunc pro tunc.” Pa.R.A.P. 1925(c)(3).
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8
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
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Here, counsel neglected to file any concise statement although ordered
to do so by the trial court. For that reason, we could consider counsel’s
actions ineffectiveness per se and remand for the filing of either a Rule
1925(b) statement or a Rule 1925(c)(4) statement of intent to file an
Anders brief. See Commonwealth v. McBride, 957 A.2d 752, 758 (Pa.
Super. 2008) (remanding for Rule 1925 statement, even though counsel
filed an Anders brief, because the absence of a trial court opinion prevented
meaningful appellate review). However, in the interests of judicial economy,
we decline to do so. Because counsel has determined Jones’s appeal is
frivolous and filed an Anders brief, we presume, upon remand, he would file
a Rule 1925(c)(4) statement of intent to file an Anders brief, which would
provide no further elucidation to the trial court of the issues raised on
appeal. Moreover, our review of the issues identified in counsel’s Anders
brief is not hampered by the lack of a trial court opinion. Accordingly, we
will proceed to address the substantive claims on appeal.9
The first issue identified in the Anders brief challenges the trial court’s
denial of Jones’s pretrial motion to suppress the drugs recovered from his
vehicle and person.10 Jones asserts Officer Collins subjected him to an
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9
We note that “this Court may affirm a trial court’s decision if it is correct on
any basis.” Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super.
2013), appeal denied, 91 A.3d 162 (Pa. 2014).
10
We have reordered the issues as they appear in the Anders brief for
purposes of disposition.
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investigatory stop, without sufficient reasonable suspicion that he was
violating a provision of the Motor Vehicle Code.
Our review of an order denying a motion to suppress is well-
established:
We are limited to determining whether the lower court’s factual
findings are supported by the record and whether the legal
conclusions drawn therefrom are correct. We may consider the
evidence of the witnesses offered by the Commonwealth, as
verdict winner, and only so much of the evidence presented by
[the] defense that is not contradicted when examined in the
context of the record as a whole. We are bound by facts
supported by the record and may reverse only if the legal
conclusions reached by the court were erroneous.
Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010) (citation
omitted), appeal denied, 25 A.3d 327 (Pa. 2011).
Here, both the trial court and Jones refer to the encounter at issue as
a “vehicle stop.” See Anders Brief at 10; Findings of Fact and Conclusions
of Law, 5/30/2013, at 3. Pursuant to 75 Pa.C.S. § 6308(b), a police officer
may stop a vehicle if he “has reasonable suspicion that a violation of [the
Motor Vehicle Code] is occurring or has occurred.” However, Jones’s vehicle
was already parked when Officer Collins arrived on the scene. Therefore, we
will consider the officer’s actions under the traditional standards of police
interactions.
Fourth Amendment jurisprudence has led to the development of
three categories of interactions between citizens and the police.
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention” must be
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supported by a reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.
Commonwealth v. Ellis, 662 A.2d 1043, 1047-1048 (Pa. 1995) (internal
citations omitted).
We find that when Officer Collins ordered Jones out of his vehicle, the
encounter rose to an investigatory detention, for which the officer was
required to have “reasonable suspicion.”
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of
reliability in the totality of the circumstances. In order to justify
the seizure, a police officer must be able to point to “specific and
articulable facts” leading him to suspect criminal activity is afoot.
In assessing the totality of the circumstances, courts must also
afford due weight to the specific, reasonable inferences drawn
from the facts in light of the officer’s experience and
acknowledge that innocent facts, when considered collectively,
may permit the investigative detention.
Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011) (internal citations
omitted).
Our review of the record reveals that Officer Collins possessed the
requisite reasonable suspicion to detain Jones. The officer observed Jones in
the driver’s seat of a car that was parked illegally in a “high-crime, high-
drug area.” N.T., 5/16/2013, at 8. Officer Collins testified that he had “had
contact with Mr. Jones several times” and “[e]very time Mr. Jones’s license
has been run, it’s been suspended.” Id. at 9. The most recent encounter
was “no more than six weeks prior” when the officer investigated a motor
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vehicle accident involving Jones. Id. at 9-10. See Commonwealth v.
Farnan, 55 A.3d 113 (Pa. Super. 2012) (holding officer’s knowledge that
driver’s license had been suspended 30 days earlier was sufficient to justify
vehicle stop). Furthermore, the officer also recognized Keith Iris, “a known
heroin user,” leaning in Jones’s car window. Id. at 10. Officer Collins
explained that when he pulled his police car parallel to Jones’s door, Jones
looked at him and “quickly” dropped something he had in his hand. Id. at
12. At that point, the officer exited his car, ordered Iris away from the
window, and asked Jones to exit his vehicle. Id.
Based upon the totality of the circumstances, including Officer Collins’s
knowledge that Jones had been driving with a suspended license only a few
weeks earlier, the officer’s observation of Jones’s illegally parked car, and
Jones’s suspicious movements after he noticed the officer, we find Officer
Collins had reasonable suspicion to detain Jones while he investigated
further. See Holmes, supra. Immediately upon Jones’s egress from the
vehicle, Officer Collins saw the bundle of heroin in plain view. Accordingly,
we conclude the trial court did not abuse its discretion in denying Jones’s
pretrial motion to suppress the evidence recovered during the officer’s
investigation, and no relief is warranted on this claim.
The Anders brief next challenges the trial court’s denial of Jones’s
pretrial motion to suppress the statement he gave to police. Jones testified
at trial that, on the day of his arrest, he had taken “a couple of Vicodins and
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… snorted a bag” of heroin, and that he did not remember giving a written
statement to police. N.T., 7/8-9/2013, at 97, 102.
The Commonwealth bears the burden of demonstrating that a
defendant “knowingly and voluntarily waived his Miranda rights.”
Commonwealth v. Eichinger, 915 A.2d 1122, 1135 (Pa. 2007), cert.
denied, 552 U.S. 894 (2007). “In order to do so, the Commonwealth must
demonstrate that the proper warnings were given, and that the accused
manifested an understanding of these warnings.” Id. at 1136. Moreover,
we are guided by the following:
The fact that an accused has been drinking does not
automatically invalidate his subsequent incriminating
statements. The test is whether he had sufficient mental
capacity at the time of giving his statement to know what
he was saying and to have voluntarily intended to say it.
Recent imbibing or the existence of a hangover does not
make his confession inadmissible, but goes only to the
weight to be accorded to it.
“[W]hen evidence of impairment is present, it is for the
suppression court to decide whether the Commonwealth has
established by a preponderance of the evidence that the suspect
nonetheless had sufficient cognitive awareness to understand
the Miranda warnings and to choose to waive his rights.
Commonwealth v. Ventura, 975 A.2d 1128, 1137-1138 (Pa. Super. 2009)
(internal citations omitted), appeal denied, 987 A.2d 161 (Pa. 2009).
At the suppression hearing, Officer Collins testified he orally advised
Jones of his Miranda warnings, and Jones initialed a warning form prior to
providing his written statement. N.T., 5/16/2013, at 15-16. The officer
further testified that Jones did not appear to be intoxicated, lethargic or
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sleepy, was not slurring his speech, and was speaking “clearly and
normally.” Id. at 19. Although Jones testified he “didn’t even remember”
initialing the Miranda warnings form or providing a written statement,11 the
trial court resolved the issue of credibility in favor of the officer. See
Findings of Fact and Conclusion of Law, 5/20/2013, at ¶ 15. Accordingly, we
conclude Jones is entitled to no relief on this claim. See Feczko, supra.
The third issue identified in the Anders brief challenges the sufficiency
of the evidence supporting Jones’s conviction of PWID. At trial, Jones
admitted he had heroin and marijuana on his person, but claimed the drugs
were for his personal use. N.T., 7/8-9/2013, at 95, 99. He also denied
knowing anything about the bundle of heroin found in the vehicle. Id. at 96.
Our review of a challenge to the sufficiency of the evidence is well-
established:
[W]e evaluate the record in the light most favorable to the
Commonwealth as 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.” However, the Commonwealth need not
establish guilt to a mathematical certainty, and it may sustain its
burden by means of wholly circumstantial evidence. Moreover,
this Court may not substitute its judgment for that of the
factfinder, and where the record contains support for the
convictions, they may not be disturbed. Lastly, we note that the
finder of fact is free to believe some, all, or none of the evidence
presented.
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11
N.T., 5/16/2013, at 35.
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Commonwealth v. Taylor, 33 A.3d 1283, 1287-1288 (Pa. Super. 2011)
(internal citations omitted), appeal denied, 47 A.3d 847 (Pa. 2012).
“To convict a person of PWID, the Commonwealth must prove beyond
a reasonable doubt that the defendant possessed a controlled substance and
did so with the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d
1008, 1015 (Pa. Super. 2005) (citation omitted). The Commonwealth may
prove the defendant’s intent to deliver “wholly by circumstantial evidence.”
Id. (citation omitted). When the intent to deliver is not evident from the
facts, the Commonwealth may present expert testimony on the issue.
Such testimony is admissible to aid in determining whether the
facts surrounding the possession of controlled substances are
consistent with intent to deliver. The amount of the controlled
substance is not “crucial to establish an inference of possession
with intent to deliver, if ... other facts are present.”
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007) (citation
omitted).
Here, the Commonwealth presented the testimony of Officer Thomas
Kaluzny, an expert in street level drugs and drug parphrenalia, who opined
that Jones possessed the bags of heroin with the intent to deliver them.
N.T., 7/8-9/2013, at 65, 71. In particular, Officer Kaluzny noted: (1) Jones
possessed no drug paraphernalia typical of a heroin user; (2) the drugs
recovered were packaged for resale; (3) Jones had more than $1,500 in
cash on his person at the time of his arrest; and (3) Jones provided a written
statement to police indicating his intention to sell the heroin. Id. at 67-70.
Although Jones presented his own expert who contradicted Officer Kaluzny’s
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conclusions, the jury was free to conclude that the Commonwealth’s expert
was more credible. Taylor, supra. This is especially true since Jones
admitted his intent to deliver the drugs in his statement to police.
Accordingly, no relief is warranted.
The final issue identified in the Anders brief is a challenge to the
weight of the evidence.
It is well-settled that when reviewing a weight of the evidence claim,
an appellate court does not substitute its judgment for the finder
of fact and consider the underlying question of whether the
verdict is against the weight of the evidence, but, rather,
determines only whether the trial court abused its discretion in
making its determination.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S. Ct. 1792 (U.S. 2014). For that reason, “[a] weight of the evidence
claim must be preserved either in a post-sentence motion, by a written
motion before sentencing, or orally prior to sentencing. Commonwealth v.
Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601
(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.
Here, Jones neglected to challenge the weight of the evidence in his
post-sentence motion. Nor did he raise a challenge either prior to or during
the sentencing hearing. See generally N.T. 9/13/2013. Therefore, this
claim is waived for our review.
Therefore, because we agree with counsel’s assessment that Jones’s
appeal is wholly frivolous, we affirm the judgment of sentence and grant
counsel’s petition to withdraw.
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Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
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