Com. v. Lewis, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LEVOND THOMAS LEWIS, :
:
Appellant :
: No. 1106 WDA 2016
Appeal from the Judgment of Sentence June 20, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0003075-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 11, 2017
Appellant, Levond Thomas Lewis, appeals from the Judgment of
Sentence entered following a jury trial. Appellant’s counsel 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), stating that the appeal is wholly frivolous. After careful review, we
grant counsel’s request to withdraw and affirm Appellant’s Judgment of
Sentence.
The facts, as gleaned from the certified record, are as follows. On
August 14, 2015, police arrested Appellant for selling crack cocaine from 353
East 24th Street in Erie, Pennsylvania. The affidavit of probable cause
*
Retired Senior Judge assigned to the Superior Court.
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described information from a confidential informant (“CI”) and police officers
that Appellant resided in and stored crack cocaine in the upstairs apartment
and that Appellant sold crack cocaine from the downstairs apartment. The
affidavit also stated that the CI purchased drugs from Appellant previously,
including three recent controlled buys from Appellant at 353 East 24th
Street. In addition, police officers had spoken with Appellant’s state parole
officer, Agent Mike Davis, who verified that Appellant lived in the upstairs
apartment and Appellant’s brother, whom Appellant cared for, lived in the
downstairs apartment. The downstairs apartment connected to the upstairs
apartment via an indoor stairwell.
Police executed search warrants for the upstairs and downstairs
apartments at 353 East 24th Street. From the upstairs apartment, police
recovered $568 in cash and two boxes of sandwich baggies. From the
downstairs apartment, police recovered 77 individually packaged baggies of
crack cocaine and one torn plastic baggie. When Appellant learned that
police recovered crack cocaine from the search, Appellant replied, “I’m going
to take that.” N.T. Trial, 5/9/16, at 24. Appellant later admitted, following
Miranda1 warnings, that he sold crack cocaine to help support his family.
Id. at 25-26.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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The Commonwealth charged Appellant with Possession with Intent to
Deliver a Controlled Substance (“PWID”) and Knowing and Intentional
Possession of a Controlled Substance.2
Appellant filed a motion seeking to suppress the drugs and Appellant’s
subsequent statements to police officers, challenging the adequacy of the
search warrants and affidavits of probable cause. The trial court denied
Appellant’s Motion to Suppress.
Following a jury trial, the jury convicted Appellant of the above drug
offenses. On June 20, 2016, the trial court sentenced Appellant to a term of
27 to 54 months’ incarceration. Appellant filed a timely Post-Sentence
Motion, which the trial court denied on June 29, 2016.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
On January 5, 2017, counsel for Appellant filed an Anders Brief and a
Petition to Withdraw as counsel. He also filed a copy of a letter addressed to
Appellant informing Appellant of counsel’s Petition to Withdraw and his right
to retain new counsel or proceed pro se. Appellant did not file a response.
In his Anders Brief, counsel raises the following issues on Appellant’s
behalf:
A. Whether the trial court erred in denying the Appellant’s
omnibus pretrial motion to suppress evidence collected as the
2
35 P.S. §§ 780-113(a)(30) and (a)(16).
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result of a search warrant issued on the basis of unsupported
information from a confidential informant[?]
B. Whether the Appellant’s sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objective of the
Pennsylvania sentencing code?
Anders Brief at 4 (capitalization omitted).
Before we address the merits of this appeal, we must determine
whether counsel has complied with the procedures provided in Anders and
its progeny. 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 meritorious 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).
The substance of the Anders 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
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on point that have led to the conclusion that the appeal is frivolous.”
Santiago, supra at 361.
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. See Goodwin, supra at 291; Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015).
Counsel in the instant appeal has complied with the above
requirements. We, thus proceed to conduct an independent review to
ascertain if the appeal is indeed wholly frivolous.
In his first issue, Appellant challenges the trial court’s denial of his
Motion to Suppress based on his challenge to the sufficiency of the affidavits
of probable cause based on the purportedly unreliable CI.
When reviewing the denial of a suppression motion, we are limited to
determining whether the record supports the suppression court’s factual
findings and, assuming there is support in the record, we are bound by those
facts and may reverse only if the legal conclusions drawn from those facts
are erroneous. Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
The Fourth Amendment and Article I, Section 8 of the Pennsylvania
Constitution each require that search warrants be supported by probable
cause. Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.1991).
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“Probable cause exists where the facts and circumstances within the affiant’s
knowledge and of which he has reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief
that a search should be conducted.” Commonwealth v. Thomas, 292 A.2d
352, 357 (Pa. 1972).
In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme
Court established the “totality of the circumstances” test for determining
whether a request for a search warrant under the Fourth Amendment is
supported by probable cause. Three years after Gates, our Supreme Court
adopted the totality of the circumstances test for purposes of making and
reviewing probable cause determinations under Article I, Section 8.
Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986). Our Supreme Court
described this test as follows:
[T]he task of an issuing authority is simply to make a practical,
common-sense decision whether, given all of the circumstances
set forth in the affidavit before him, including the veracity and
basis of knowledge of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime
will be found in a particular place.... It is the duty of a court
reviewing an issuing authority’s probable cause determination to
ensure that the magistrate had a substantial basis for concluding
that probable cause existed. In so doing, the reviewing court
must accord deference to the issuing authority’s probable cause
determination, and must view the information offered to
establish probable cause in a common-sense, non-technical
manner.
* * *
[Further,] a reviewing court [is] not to conduct a de novo review
of the issuing authority’s probable cause determination, but [is]
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simply to determine whether or not there is substantial evidence
in the record supporting the decision to issue the warrant.
Commonwealth v. Torres, 764 A.2d 532, 537-38, 540 (Pa. 2001)
(citations and quotation marks omitted).
In determining whether a warrant is supported by probable cause, we
restrict our inquiry to the “facts described within the four corners of the
supporting affidavit.” Commonwealth v. Dukeman, 917 A.2d 338, 341
(Pa. Super. 2007).
Here, the trial court addressed Appellant’s issue in its Pa.R.A.P.
1925(a) Opinion as follows:
Here, after reviewing the four corners of the affidavits, this Court
appropriately concluded that they provided a substantial basis to
support the magistrate’s decision to approve the search
warrants. Both affidavits established via CI’s information and
independent police corroboration that Appellant resided and
stored crack cocaine in his upstairs apartment. The information
further established that Appellant sold crack cocaine from the
downstairs apartment. Irrespective of Appellant’s claim
regarding CI’s reliability, both affidavits contained information
related to CI’s prior drug purchases from Appellant and his active
participation in three recent controlled buys from Appellant at
353 East 24th Street.
* * *
Regarding Appellant’s challenge to his statements, Appellant
asserted in his suppression motion that he made statements to
police after he was provided with Miranda warnings. His motion
is devoid of any specific challenge to the appropriateness of the
Miranda warnings and/or his waiver. Rather, he claimed his
statements were “fruit of the poisonous tree[,”] a claim this
Court appropriately concluded was based on his challenge to the
four corners of the affidavits and subsequent arrest. Because
the affidavits comported with both constitutional and procedural
requirement[s], all evidence derived therefrom, including
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Appellant’s statements to police following his arrest and
Miranda waiver, [were] not subject to suppression.
Accordingly, this Court did not err in denying the suppression
motion without an evidentiary hearing.
Trial Court Opinion, 9/6/16, at 3 (citing Commonwealth v. Hawkins, 45
A.3d 1123 (Pa. Super. 2012)).
We agree with the trial court’s analysis. There is substantial evidence
in the certified record supporting the decision to issue the search warrant
based on the three controlled drug buys and the information from the CI,
which police corroborated by speaking with Appellant’s state parole officer.
The record supports the suppression court’s factual findings and legal
conclusions. Therefore, we affirm.
In his second issue, Appellant challenges the discretionary aspects of
his sentence. Appellant must properly invoke this Court’s jurisdiction in
order to seek review on the merits. “Challenges to the discretionary aspects
of sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation
omitted). Rather, Appellant must first meet his burden of satisfying the
following four elements before we will review the discretionary aspect of a
sentence:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
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Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Here, Appellant met the first three elements by filing a timely Notice of
Appeal, properly preserving the issue, and including in his brief a Statement
of Reasons Relied Upon for Allowance of Appeal pursuant to Pa.R.A.P.
2119(f) (“Rule 2119(f) Statement”).
Accordingly, we next determine whether Appellant’s claims present a
“substantial question” for review. An appellant raises a “substantial
question” when he “sets forth a plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Commonwealth v. Crump, 995 A.2d
1280, 1282 (Pa. Super. 2010) (citation omitted). This Court has no
jurisdiction where an appellant’s Rule 2119(f) Statement fails to raise “a
substantial question as to whether the trial judge, in imposing sentence,
violated a specific provision of the Sentencing Code or contravened a
‘fundamental norm’ of the sentencing process.” Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citations omitted).
In the instant case, Appellant avers that (1) his sentence was
unreasonable and excessive,3 and (2) failed to consider mitigating factors,
3
Appellant recognizes that his sentence of 27 to 54 months’ incarceration “is
a sentence that begins in the standard range of the [g]uidelines.”
Appellant’s Brief at 7. Moreover, we also note that Appellant specifically
requested a guideline sentence. N.T. Sentencing, 6/20/16, at 6.
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including (i) his acceptance of responsibility, (ii) his expression of remorse,
(iii) his rehabilitative potential, and (iv) his anticipated additional
incarceration for parole violations. Appellant’s Brief at 6-7, 10-11. None of
Appellant’s contentions sets forth a “plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Crump, supra at 1282.
It is clear from our precedent that Appellant has failed to raise a
substantial question as to his sentence, and therefore failed to invoke the
jurisdiction of this Court. See, e.g., Commonwealth v. Cannon, 954 A.2d
1222, 1228–29 (Pa. Super. 2008) (finding no substantial question raised by
a claim that the trial court failed to consider adequately the defendant’s
mitigating factors, including his rehabilitative needs, age, and educational
background); Commonwealth v. Coolbaugh, 770 A.2d 788, 792-93 (Pa.
Super. 2001) (finding no substantial question raised by a claim that a
probation revocation sentence failed to take into consideration the
defendant’s rehabilitative needs and was manifestly excessive where
sentence was within statutory guidelines and within sentencing guidelines);
Commonwealth v. Coss, 695 A.2d 831, 833-34 (Pa. Super. 1997) (holding
that, when the sentence imposed falls within the statutory recommendation,
an appellant’s claim that a sentence is manifestly excessive fails to raise a
substantial question). Therefore, we affirm Appellant’s Judgment of
Sentence.
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Accordingly, in light of the above and our further independent review
of the record, we conclude that there are no meritorious issues to be raised
on appeal, and the Judgment of Sentence should be affirmed.
Judgment of Sentence affirmed. Counsel’s Petition to Withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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