Com. v. Kennedy, M.

J-S33019-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARVIN KENNEDY, :
:
Appellant : No. 411 EDA 2014
Appeal from the Judgment of Sentence January 13, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0002282-2013
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 8, 2015
Marvin Kennedy (“Kennedy”) appeals from the January 13, 2014
judgment of sentence entered by the Philadelphia County Court of Common
Pleas following his conviction of possession of a controlled substance with
intent to deliver (“PWID”).1 Counsel for Kennedy has filed an Anders2 brief
and a motion to withdraw, and Kennedy filed a pro se response thereto.
Upon review, we affirm and grant counsel’s request to withdraw.
The trial court aptly summarized the testimony adduced at trial as
follows:
At a waiver trial on November 6, 2013, Police
Officer Kenneth Long of the Narcotics Strike Force
testified that his tour of duty brought him to the
1
35 P.S. § 780-113(a)(30).
2
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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2500 block of North Colorado Street at
approximately 10:30 [a.m.] on October 30, 2012.
(N.T. Trial, 11/6/13, [at] 9, 10). Officer Long and his
partner, Officer Myles, set up a plain-clothes
surveillance for illegal sales of narcotics. ([Id. at]
10). Officer Long testified that it had been raining on
and off that day and that it was gray outside, but
there was adequate light. ([Id. at] 15). Officer Long
testified that through the rear of his unmarked
vehicle, he observed [Kennedy] engaged in a
conversation with an unknown male wearing a black
quilted jacket. ([Id. at] 10, 15). The unknown male
handed United States currency to [Kennedy]. ([Id.
at] 10). Officer Long saw [Kennedy] reach into his
waistband where he removed a clear plastic bag and
removed items from the bag and engaged in a hand-
to-hand transaction with the unknown male who
then left the area. ([Id. at] 11). Officer Long then
gave flash information about the unknown male to
backup officers but he was not located in the area.
([Id. at] 11).
Approximately five minutes later, Officer Long
observed a male, later identified as Michael
Woodson, approach the corner of Colorado and
Cumberland where he engaged in a brief
conversation with [Kennedy] and handed [Kennedy]
United States currency in exchange for items. ([Id.
at] 11). Again, Officer Long issued flash information
to backup officers. ([Id. at] 11). Officer Paul Abfaza
testified that he was in full uniform working as
backup to Officer Long that day, and that based on
flash information received from Officer Long, he
stopped Mr. Woodson. ([Id. at] 19). Upon stopping
Mr. Woodson, Officer Abfaza recovered four green
plastic packets containing what was later identified
as crack cocaine from the right front jacket pocket of
Mr. Woodson. ([Id. at] 19-20).
Officer Long continued to observe [Kennedy], and
at approximately 10:50 a.m., a black female, later
identified as Jacqueline Johnson, approached the
comer of Colorado and Cumberland Streets ([Id. at]
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12). Ms. Johnson had a brief conversation with
[Kennedy] and handed him United States currency.
([Id. at] 12). [Kennedy] reached into his waistband
and handed Ms. Johnson an item. ([Id. at] 12).
Officer Long issued flash information for Ms.
Johnson. ([Id. at] 12). Police Officer Wayne Taylor
testified that he was on duty and served as backup
to Officer Long’s surveillance on October 30, 2012.
([Id. at] 21). After receiving flash information from
Officer Long, Officer Taylor came in contact with Ms.
Johnson who was walking down Colorado Street
toward Cumberland Street and then made a left tum
on Cumberland. ([Id. at] 21, 22). Upon seeing
Officers Taylor and Washington coming down the
street, Ms. Johnson made a motion that indicated to
the officers that she threw something in her mouth.
([Id. at] 22). Shortly after coming in contact with
the officers, Ms. Johnson complained of having
asthma and that she could not breathe. ([Id. at]
22). Ms. Johnson then became unresponsive and the
officers called rescue. ([Id. at] 22). While the rescue
team worked on her, the officers remained with her
in the medic transport vehicle and observed the
rescue workers use forceps to remove a plastic
sandwich bag that was resting on her larynx which
was preventing her from breathing. ([Id. at] 23).
Five green tinted plastic packets containing crack
cocaine were turned over to the officers. ([Id. at]
23).
Officer Long testified that after he witnessed what
he believed to be several narcotics transactions,
[Kennedy] was stopped and arrested by Officer
Mauricio Rodriguez. ([Id. at] 12). Officer Long
testified that at arrest, he positively identified
[Kennedy] as the individual he observed engaging in
the hand-to-hand transactions. ([Id. at] 12). At the
time of identification, he observed that [Kennedy]
was still wearing a tan jacket and tan cargo pants,
the same clothing he saw [Kennedy] wearing during
the alleged transactions. ([Id. at] 15). He also
testified that he never saw [Kennedy] leave prior to
arrest. ([Id. at] 15). Officer Rodriguez prepared a
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75-229 (Biographical Information Report) upon
arrest and indicated that [Kennedy] was wearing a
blue hooded sweatshirt, a green jacket, and a pair of
green cargo pants ([Id. at] 28). Recovered from
[Kennedy] was $190 in United States currency[FN]1.
([Id. at] 28). Officer Rodriguez testified that he was
present when Officer Long positively identified
[Kennedy] as the individual he observed that day
([Id. at] 30).
[Kennedy] and the Commonwealth stipulated that
if [Kennedy]’s wife, Michelle Pierce, was called to
testify, she would have testified that she gave
[Kennedy] $190 that day to buy candy and items for
his family also related to Halloween coming up at the
comer store, that they live together, that she gave
him money that day, and that she is employed. ([Id.
at] 31). The Commonwealth then recalled Officer
Rodriguez to the stand and he testified that
[Kennedy] provided all information on the 75-229
and that [Kennedy] indicated his marital status as
“single”. ([Id. at] 33). Finally, Officer Rodriguez
testified that [Kennedy] also indicated on the 75-229
that he resided with his aunt, Gwendolyn Kennedy.
([Id. at] 33).
______________________________
[FN]1
$190 USC recovered in the form of two (2) $20
bills, twelve (12) $10 bills, two (2) $5 bills, and
twenty (20) $1 bills and was place on Property
Receipt #3070176. [The notes of testimony from
trial erroneously state that Officer Rodriguez testified
that he recovered “$109” from Kennedy. Based on
Officer Rodriguez’ specific testimony as to the
denominations recovered from Kennedy, this was
clearly a typographical error.]
Trial Court Opinion, 9/19/14, at 2-4 (footnote in the original).
The trial court found Kennedy guilty of PWID and not guilty of
possession of a controlled substance. On January 13, 2014, the trial court
sentenced Kennedy to eighteen to thirty-six months of incarceration followed
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by three years of probation. Kennedy did not file any post-sentence
motions, but filed a timely notice of appeal on February 3, 2014. Counsel
has filed an Anders brief and Kennedy filed a pro se response, raising issues
that he believes are non-frivolous and warrant relief.
Before we address the merits of Kennedy’s appeal, we must discern
whether counsel has complied with Anders and Santiago:
The request by appointed counsel to withdraw
pursuant to Anders triggers specific requirements,
certain of which apply to appointed counsel and
others to the court to which appointed counsel
makes his or her request for withdrawal. These
requirements and the significant protection they
provide to an Anders appellant arise because a
criminal defendant has a constitutional right to a
direct appeal and to counsel on that appeal.
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
Super. 2007). This Court has summarized these
requirements as follows:
Direct appeal counsel seeking to withdraw
under Anders must file a petition averring
that, after a conscientious examination of the
record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders
brief setting forth issues that might arguably
support the appeal along with any other issues
necessary for the effective appellate
presentation thereof.
Anders counsel must also provide a copy of
the Anders petition and brief to the appellant,
advising the appellant of the right to retain
new counsel, proceed pro se or raise any
additional points worthy of this Court’s
attention.
Id. (citations omitted).
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There are also requirements as to the precise
content of an Anders brief:
[T]he Anders brief that accompanies court-
appointed counsel's petition to withdraw ...
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.
Commonwealth v. Flowers, __ A.3d __, 2015 WL 1612010, **1-2 (Pa.
Super. Apr. 10, 2015).
Our review of counsel’s Anders brief and petition to withdraw confirms
that he complied with the foregoing requirements. We therefore turn to
review the issue raised in counsel’s Anders brief, which Kennedy likewise
raises in his pro se response: “Where the Commonwealth’s evidence of an
alleged drug transaction was based on inconsistent and incredible testimony
from the police officer, constituting a misidentification of [Kennedy] as the
drug seller, was a guilty verdict based on such evidence speculative and
conjectural that cannot sustain the verdict?” Anders Brief at 3; see also
Pro Se Response at 3-4.
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Both counsel and Kennedy frame this issue as a challenge to the
sufficiency of the evidence. Anders Brief at 10-11; Pro Se Response at 3.
The arguments presented in support of their claims solely address Officer
Long’s credibility, however, and is therefore a challenge to the weight of the
evidence to support Kennedy’s conviction, not its sufficiency. 3 See
Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (“An
argument regarding the credibility of a witness’[] testimony goes to the
weight of the evidence, not the sufficiency of the evidence.”). It is well-
settled law that an appellant must preserve a challenge to the weight of the
evidence before the trial court either at sentencing or in a post-sentence
motion. Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d
478, 490 (Pa. Super. 2014). Kennedy failed to do so, and as such, this
argument is waived on appeal, rendering it frivolous.
3
Specifically, Kennedy asserts in his pro se response that the trial court
should not have believed Officer Long’s testimony that he observed Kennedy
reach into his waistband, with “a lot of people in [the officer’s] line of sight,”
where Officer Long had only a profile view of the transactions. Pro Se
Response at 3. According to Kennedy, it was likewise not believable that
Officer Long could have seen these transactions on the day in question
because that was the day Hurricane Sandy struck, and Officer Long was
observing the transactions through the tinted rear window of his vehicle. Id.
at 4. He further states that Officer Long gave an inaccurate description of
Kennedy’s clothing and “never testified to [his] height, race, age, [or facial
hair,” but overlooks the fact that Officer Long identified Kennedy at the time
of his arrest and at trial. Id. at 5.
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For purposes of completeness, we note that the Commonwealth
presented sufficient evidence to convict Kennedy of PWID. The Controlled
Substance, Drug, Device and Cosmetic Act defines PWID as follows:
Except as authorized by this act, the 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.
35 P.S. § 780-113(a)(30). The evidence presented at trial, as recited
hereinabove, viewed in the light most favorable to the Commonwealth as
our standard of review requires, circumstantially proved that Kennedy was in
possession of the crack cocaine and distributed it to Mr. Woodson and Ms.
Johnson.4
Kennedy further baldly states, without any supporting argument, that
the police lacked probable cause to arrest him. Pro Se Response at 5. The
4
Appellate review of a challenge to the sufficiency of the evidence is de
novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur
scope of review is limited to considering the evidence of record, and all
reasonable inferences arising therefrom, viewed in the light most favorable
to the Commonwealth as the verdict winner.” Id. at 420-21. “The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence.” Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014)
(citation and quotation omitted). “Further, we note that the entire trial
record is evaluated and all evidence received against the defendant is
considered, being cognizant that the trier of fact is free to believe all, part,
or none of the evidence.” Id. It is for the finder of fact to pass upon the
credibility of the witnesses and weight of the evidence presented. Melvin,
103 A.3d at 40.
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failure to develop any argument in support of this assertion renders the
claim unreviewable. Commonwealth v. Veon, 109 A.3d 754, 774 (Pa.
Super. 2015); see also Commonwealth v. Samuel, 102 A.3d 1001, 1005
(Pa. Super. 2014) (“this Court will not become counsel for an appellant and
develop arguments on an appellant’s behalf”). Nonetheless, as the trial
court found that Officer Long credibly testified that he observed Kennedy
engage in drug transactions, we conclude that the police had ample probable
cause to arrest Kennedy. The argument is frivolous.
Kennedy also appears to challenge the trial court’s failure to decide pro
se pretrial motions he filed while represented by counsel.5 Pro Se Response
at 4. Our Supreme Court has made clear that a criminal defendant does not
have the “right to hybrid representation either at trial or on appeal.”
Commonwealth v. Ellis, 534 Pa. 176, 180, 626 A.2d 1137, 1139 (1993);
see also Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044
(2011) (reaffirming its holding in Ellis and stating that “the proper response
to any pro se pleading is to refer the pleading to counsel, and to take no
further action on the pro se pleading unless counsel forwards a motion”). As
such, Kennedy’s claim that trial court erred by failing to rule on his pro se
motions that he filed while represented by counsel is frivolous.
5
The record reflects that Kennedy, pro se, filed a petition for writ of habeas
corpus, suppression motion, a motion to dismiss the charges against him,
motion for discovery and a motion to quash. The trial court did not rule on
any of his pro se motions.
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Lastly, Kennedy assails counsel’s representation of him in this matter.
Pro Se Response at 1. Our Supreme Court has made clear, however, that
absent certain circumstances not present in the case at bar, we are unable
to review claims of ineffective assistance of counsel on direct appeal.
Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013).
The issues raised by counsel in his Anders brief and Kennedy in his
pro se response are frivolous. We have conducted an independent review of
the record and have found no additional, non-frivolous issues that counsel
could have raised on Kennedy’s behalf. As such, we affirm the judgment of
sentence and grant counsel’s motion to withdraw.
Judgment of sentence affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2015
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