Com. v. Payne, A.

J-S39042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADDAN PAYNE :
:
Appellant : No. 2675 EDA 2018
Appeal from the Judgment of Sentence Entered August 16, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006665-2015
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 19, 2019
Appellant, Addan Payne, appealed from a March 9, 2016, judgment of
sentence entered in the Court of Common Pleas of Philadelphia County
following his conviction at a bench trial on the charges of possession with the
intent to deliver a controlled substance (“PWID”), conspiracy (to commit
PWID), and possession of a controlled substance (“possession”).1 On May 8,
2018, a three-judge panel of this Court affirmed Appellant’s convictions, but
vacated the judgment of sentence and remanded for resentencing.
Specifically, this Court concluded the trial court failed to properly merge
Appellant’s convictions for PWID and possession for sentencing purposes.
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1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, and 35 P.S. § 780-
113(a)(16), respectively.
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* Former Justice specially assigned to the Superior Court.
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On August 16, 2018, the trial court imposed a new judgment of
sentence, and Appellant filed the instant appeal. Additionally, Appellant’s
counsel has filed a petition seeking to withdraw her representation, as well as
a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),
and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009)
(hereinafter “Anders brief”). After a careful review, we grant counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
The relevant facts and procedural history have been set forth previously
by this Court, in part, as follows:
On December 16, 2015, the Honorable Vincent Melchiorre
presided over Appellant’s bench trial. During the trial, the
Commonwealth called Officer Keya Mason to testify. Officer
Mason testified that she has nineteen years of experience in drug
cases and the last two of those years she has been with the
Narcotics Enforcement Team (NET Team). N.T., 12/16/15, at 10.
She testified that on the evening of April 3, 2015, she was part of
the NET Team conducting surveillance in the area of the 4200
block of Odgen Street. Id. at 9-10. Officer Mason stated that she
observed Appellant wearing a gray-hooded jacket, red pants, and
red sneakers. Id. at 11. Officer Mason continued that Appellant
was accompanied by a female, later identified as Shirley Stevens,
who was wearing a blue jean jacket, green cargo pants, and a
white scarf. Id.
Officer Mason testified that she was located approximately
one city block away, had a clear and unobstructed view, and was
using binoculars. Id. at 12, 21. She further testified that
streetlights illuminated the area where Appellant was located. Id.
at 44-45. During her surveillance, Officer Mason observed a black
male, later identified as Albert Tomlin, riding a motorized scooter.
Id. at 14. Tomlin rode up to the middle of the street where
Stevens approached him, they had a brief conversation, and
Tomlin gave Stevens an unknown amount of U.S. currency. Id.
Stevens then walked over to Appellant and gave him the money.
Id. at 15. Appellant proceeded to walk into an alleyway for
approximately thirty seconds and when he returned, he handed
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small items to Stevens. Id. Stevens then went back to Tomlin
and gave him the small items. Id. at 16. Tomlin then left. Id.
Officer Mason relayed this information to backup officers who
stopped Tomlin and recovered two green-tinted heat-sealed Ziploc
packets of crack cocaine. Id. at 16-17.
Officer Mason continued her surveillance and observed a
white pick-up truck arrive at the location where Appellant and
Stevens were. Id. at 17. Officer Mason testified that, this time,
Appellant approached the passenger in the pick-up truck, later
identified as Patrick Kim. Id. Kim extended his hand out the
window and gave Appellant U.S. currency. Id. Appellant walked
into the same alleyway and upon returning, handed small items
to Kim. Id. at 19. Officer Mason relayed this information to her
backup officers, who stopped the vehicle and recovered from the
driver, Kelly Wilson, three clear heat-sealed Ziploc packets
containing crack cocaine. Id.
Officer Mason testified that after these two transactions, she
notified her backup officers to arrest Appellant. Id. at 20. Officer
Nicholas Martella arrested Appellant and recovered $348 from
different pockets. Id. The backup officers also searched the
alleyway where Appellant had twice entered but could not find
anything. Id. No narcotics were recovered from Appellant. Id.
at 43.
The Commonwealth also called Officer Daniel Mammola and
Officer Patrick DiDomenico to testify. Officer Mammola testified
that he was that officer that stopped Tomlin and retrieved from
him two green-tined heat-sealed Ziploc packets of crack cocaine.
Id. at 50. Officer DiDomenico testified that he arrested Wilson
and Kim. Id. at 54. He testified that, from Wilson’s hand, he
recovered three clear heat-sealed Ziploc packets containing crack
cocaine. Id. The officer did not testify that he recovered drugs
from Kim. Officer Martella, who was also called to testify, stated
that he conducted field testing, a NIK-G test, on the drugs. Id.
at 61.
Judge Melchiorre convicted Appellant as charged. On March
9, 2016, the trial court[2] sentenced Appellant to two to four years’
incarceration for PWID and a concurrent two to four years’
incarceration for conspiracy to commit PWID. The trial court
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2 Since Judge Melchiorre was absent from the bench at the time of sentencing,
the Honorable Mia Perez presided over Appellant’s March 9, 2016, sentencing
hearing.
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further imposed a consecutive two years’ probation for Appellant’s
conviction for possession of a controlled substance.
On March 16, 2016, Appellant filed his post-sentence motion
for reconsideration, claiming that his sentence was excessive.
See Motion for Reconsideration, 3/16/16. The docket indicates
that Appellant filed a motion to withdraw his post-sentence motion
for reconsideration, which the trial court granted on April 18,
2016. See Docket at 8.
On April 27, 2016, Appellant filed a timely notice of appeal.
Commonwealth v. Payne, No. 1347 EDA 2016, *2-4 (filed 5/8/18)
(unpublished memorandum) (footnote omitted) (footnote added).
On appeal, a panel of this Court rejected Appellant’s challenges to his
convictions; however, the panel sua sponte determined the trial court failed
to merge the convictions for PWID and possession for sentencing purposes.
Thus, this Court vacated the March 9, 2016, judgment of sentence and
remanded for resentencing.
On August 16, 2018, Appellant proceeded to a new sentencing hearing
at which Judge Perez acknowledged this Court had vacated the previous
sentence and remanded for resentencing. N.T., 8/16/18, at 4. The trial court
indicated it had the original presentence investigation report. Id. at 5.
Appellant’s counsel indicated she wished to elaborate on the presentence
investigation report as it related to Appellant’s experience when he was a
minor in the foster care system. Id. She noted Appellant was sexually abused
by one of his foster mothers. Id.
Appellant’s counsel also noted that, at some point during Appellant’s
incarceration, Appellant was diagnosed with major depressive disorder and
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post-traumatic stress with dissociative symptoms, and accordingly, prison
physicians placed Appellant on various treatment medications. Id. at 5-6.
Appellant’s counsel noted that, aside from medications, Appellant was not
receiving necessary mental health treatment from prison officials. Id. at 6.
Appellant’s counsel requested an aggregate sentence of 11.5 months to 23
months in prison, plus three years of reporting probation. Id. at 10.
The trial court provided Appellant with his right to allocution, and
Appellant stated the following (verbatim):
Your Honor, one thing, one thing I want to say, you know,
since I’ve been here, it’s like I’ve had to fight for survival, you
know? I been seen people die here since I’ve been here. I been
heard people at nighttime screaming because they’ve been
getting raped at nighttime.
And every day is like a struggle for me. Every day is another
fight for survival. And it’s like, it’s hard for me because I’m—it’s
hard for me because the Dr. Cena (sp) requested me to be on a
mental health unit and they got me in regular general population
without being in the mental health unit. Where as they have
officers that are trained to work for me and help me out to regular
as—officers that don’t know what they’re doing with me.
And it’s like it’s hard. Sometimes I get—I think about being
suicidal. I’m not suicidal now but at the time when I was at
Camphill I was suicidal because I got so many things that are
doing it and so many things that remind me of what is actually
going on. So I go through the most, you know? And it really is
hard. It would have been better to have some type of relief, you
know what I mean?
I understand that I did something wrong and I understand
that I’m—I did something wrong, that I needed to serve the
punishment to know what is right. I understand that but it’s hard
for me, it really is. Like I cry every night because I’m away from
my family. I pray all the time that it’ll be soon. And like, I’m a
changed person, I’ve been—with getting my GED, I’ve got my
social security card, you know what I mean? I’ve been to all my
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programs. It’s like I’m doing everything to prepare myself to get
out of here, you know?
While I’m doing that, it’s still a struggle for me. And I want
you to know I’m fighting through this, not only fighting through
this because I want to do right but I’m fighting through this
because I have two kids, two daughters that needs me home, that
need me to be there for them. Because I am their protector, I’m
the one that is supposed to help them and guide them when they
need to be taught, you know? I’m not that type of person that
don’t make kids and don’t care about their kids and their children.
I love my family. I love my family to death and I wouldn’t trade
them for no one else.
And I want to let people know that if they’re sitting in the
courtroom, that at that time if they, when that time comes, don’t
choose the wrong choice. Try to fight through it, you know. And
that’s what I’m still learning to do and I’m going to keep on
fighting. And that’s what I wanted to say here today. I just
wanted ya’ll to hear me out.
Id. at 12-14.
The trial court then imposed a sentence of two years to four years in
prison for PWID and a concurrent sentence of two years to four years in prison
for conspiracy. The trial court imposed no further sentence for possession.
Despite being provided with his post-sentence rights, Appellant did not file a
post-sentence motion; however, he filed a timely notice of appeal. The trial
court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and in
response, counsel filed notice of her intent to file an Anders/McClendon brief
pursuant to Pa.R.A.P. 1925(c)(4). The trial court then filed a brief Pa.R.A.P.
1925(a) statement. On January 22, 2019, counsel filed in this Court a petition
seeking to withdraw her representation, as well as an Anders brief. Appellant
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filed no further submissions either pro se or through privately-retained
counsel.
Prior to addressing any issue raised on appeal, we must first resolve
counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal
pursuant to which 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 [appellant]; and 3) advise the [appellant] that
he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an 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 on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide
the appellant with a copy of the Anders brief, together with a letter that
advises the appellant of his or her right to “(1) retain new counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any points that the
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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) (citation omitted). Substantial compliance with these
requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super. 2007).
Herein, counsel contemporaneously filed her petition to withdraw as
counsel and Anders brief. In her petition, counsel indicates that after a
thorough and conscientious examination of the record she has determined
that an appeal herein is wholly frivolous. Additionally, in accordance with
Nischan, counsel has mailed Appellant a copy of the Anders brief and a letter
informing him that: (1) he has the right to retain new counsel; (2) he may
proceed further with his case pro se; and (3) he may raise any points that he
deems worthy of the this Court’s attention. Counsel has provided this Court
with a copy of the conforming letter.
In the Anders brief, counsel provides a summary of the facts and
procedural history of the case, refers to evidence of record that might arguably
support the issues raised on appeal, provides citations to relevant case law,
and states her reasoning and conclusion that the appeal is wholly frivolous.
Accordingly, counsel has substantially complied with all of the technical
requirements of Anders and Santiago. Therefore, we proceed to examine
the issues counsel identified in the Anders brief and then conduct “a full
examination of all the proceedings, to decide whether the case is wholly
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frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.
2018) (en banc) (quotation omitted).
In the Anders brief, counsel raises the following issues (verbatim):
1. Was the sentence imposed a legal sentence?
2. Was the sentence imposed an excessive sentence?
Anders Brief at 3.
In his first issue, Appellant contends his new sentence is illegal.
Specifically, Appellant suggests his sentence for PWID (crack cocaine) is
beyond the statutory limits.
Initially, we agree with Appellant that he has raised a challenge to the
legality of his sentence. See Commonwealth v. Dixon, 161 A.3d 949, 951
(Pa.Super. 2017) (“If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.”) (citation
omitted)). “Issues relating to the legality of a sentence are questions of law.
Our standard of review over such questions is de novo and our scope of review
is plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super.
2014).
With regard to Appellant’s conviction for PWID (crack cocaine), 35 P.S.
§ 780-113(a)(30), the relevant statutory authority provides the following:
§ 780-113. Prohibited acts; penalties
***
(f) Any person who violates clause (12), (14) or (30) of
subsection (a) with respect to:
***
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(1.1) Phencyclidine; methamphetamine, including its
salts, isomers and salts of isomers; coca leaves and any salt,
compound, derivative or preparation of coca leaves; any salt,
compound, derivative or preparation of the preceding which is
chemically equivalent or identical with any of these substances,
except decocanized coca leaves or extracts of coca leaves, which
extracts do not contain cocaine or ecgonine; and marihuana in a
quantity in excess of one thousand (1,000) pounds, is guilty of
a felony and upon conviction thereof shall be sentenced to
imprisonment not exceeding ten years, or to pay a fine not
exceeding one hundred thousand dollars ($100,000), or both, or
such larger amount as is sufficient to exhaust the assets utilized
in and the profits obtained from the illegal manufacture or
distribution of these substances.
35 P.S. § 780-113(f)(1.1) (bold added).
By its express terms, the relevant statute permits a maximum sentence
of ten years in prison for PWID (crack cocaine). See Commonwealth v.
Young, 922 A.2d 913 (Pa.Super. 2007) (holding it is well settled that criminal
statutes are to be strictly construed). Upon remand, the trial court imposed
a sentence of two years to four years in prison for PWID, and therefore, the
sentence was well within the statutory limits. Consequently, we reject
Appellant’s challenge to the legality of his sentence as to PWID.
In his final issue, Appellant contends the trial court abused its discretion
in imposing Appellant’s new sentence. Specifically, Appellant suggests his
sentence upon remand was “unduly excessive,” as well as the result of judicial
vindictiveness. These claims present a challenge to the discretionary aspects
of Appellant’s sentence. See Commonwealth v. Barnes, 167 A.3d 110(Pa.Super. 2017) (en banc); Commonwealth v. Clarke, 70 A.3d 1281, 1287
(Pa.Super. 2013).
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We have long held that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Id. at 122 (citation omitted). Instead, such
challenges are considered petitions for allowance of appeal. Id. Generally,
an appellant who wishes to challenge the discretionary aspects of his sentence
must satisfy a four-part test to invoke this Court’s jurisdiction:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect pursuant to Pa.R.A.P. 2119(f);
and (4) whether there is a substantial question that the sentence
appeal from is not appropriate under the Sentencing Code.
Id. (citation omitted). Finally, “[w]hether a particular issue constitutes a
substantial question about the appropriateness of sentence is a question to be
evaluated on a case-by-case basis.” Id. (citation omitted).
Here, Appellant filed a timely notice of appeal, but he did not present
his discretionary aspects of sentencing issues during the sentencing hearing
or in a post-sentence motion. Accordingly, the issues are waived. See id.
In any event, and assuming, arguendo, Appellant’s claims present a
substantial question, we note:
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.
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Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (quotation
omitted).
With regard to Appellant’s claim that his sentence is “unduly excessive,”
we note “the sentence imposed should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[W]here the sentencing
judge had the benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Clarke, 70 A.3d at 1287.
Here, the record reveals the trial court judge, who was the same judge
that sat for Appellant’s original sentencing hearing, was well aware of
Appellant’s crimes and had the benefit of a presentence investigation report.
The trial court permitted Appellant’s counsel to expand upon the information
contained in the presentence investigation report, including providing the trial
court with information pertaining to Appellant’s experiences as a minor in the
foster care system. Moreover, Appellant’s counsel provided the trial court with
information pertaining to Appellant’s time spent in prison, including the status
of Appellant’s mental health. Finally, the trial court considered Appellant’s
statement to the court in which Appellant sought leniency. Based on the
aforementioned, the trial court imposed individual sentences, which
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Appellant’s counsel admits were “standard-range minimum” sentences under
the Sentencing Guidelines, in a concurrent manner. Anders Brief at 9.
Accordingly, we find no merit to Appellant’s claim that his sentence was
“unduly excessive.”
With regard to Appellant’s suggestion of vindictiveness, generally, a
presumption of vindictiveness arises if the court imposes a harsher sentence
upon resentencing. Commonwealth v. Robinson, 931 A.2d 15, 22
(Pa.Super. 2007) (en banc). “Absent evidence [that] a sentencing increase is
justified due to objective information concerning a defendant’s case, the
presumption of vindictiveness cannot be rebutted.” Barnes, 167 A.3d at 124.
Without a presumption of vindictiveness, the defendant must affirmatively
prove actual vindictiveness. Id.
Here, Appellant did not receive a greater sentence upon remand than
that which was originally ordered. Specifically, Appellant was originally
sentenced to two years to four years in prison for PWID, a concurrent two
years to four years in prison for conspiracy, and a consecutive two years’
probation for possession. However, upon remand, Appellant was sentenced
to two years to four years in prison for PWID, a concurrent two years to four
years in prison for conspiracy, and no further penalty for possession.
Accordingly, there is no presumption of vindictiveness. See Robinson,
supra. Moreover, there is no evidence of actual vindictiveness on the part of
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the sentencing judge. Accordingly, Appellant is not entitled to relief on this
claim.
After examining the issues contained in the Anders brief, we concur
with counsel’s assessment that the appeal is wholly frivolous. “Furthermore,
after conducting a full examination of all the proceedings as required pursuant
to Anders, we discern no non-frivolous issues to be raised on appeal.”
Yorgey, 188 A.3d at 1195. Thus, we grant counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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