Com. v. Brehm, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOSHUA RYAN BREHM :
:
Appellant : No. 1463 WDA 2021
Appeal from the Judgment of Sentence Entered July 1, 2021
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000097-2020
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: APRIL 21, 2023
Appellant, Joshua Ryan Brehm, appeals from the judgment of sentence
entered in the Cambria County Court of Common Pleas, following his jury trial
convictions for two counts each of possession of a controlled substance and
possession of a controlled substance with the intent to deliver (“PWID”), and
one count of criminal use of a communication facility.1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with the aforementioned offenses in
connection with the sale of narcotics to a confidential informant (“CI”). At a
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16), (30); 18 Pa.C.S.A. § 7512(a), respectively.
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jury trial on June 8, 2021, Detective Tom Keirn testified that he was working
with a CI who identified Appellant as an individual from whom he could
purchase drugs. The CI contacted Appellant by phone and arranged to meet
at a shopping plaza to purchase heroin for seventy dollars ($70.00). Prior to
meeting Appellant, police searched the CI to ensure that he did not have
contraband on his person. Detective Keirn was surveilling the transaction and
saw Appellant approach the CI at the agreed upon location and exchange
drugs for money. Immediately thereafter, the CI returned to the police vehicle
and the officers took possession of the drugs that were purchased.
The CI testified that he worked with Detective Keirn to set up a
controlled buy from Appellant. The CI confirmed that he set up the sale over
the phone and recognized Appellant’s voice as the individual on the line. The
CI testified that Appellant met him at the agreed upon location and exchanged
drugs for money. The CI stated that he was wearing a recording device during
the transaction, and the Commonwealth played the surveillance footage for
the jury to corroborate his testimony. Additionally, an expert in the field of
drug identification testified that the packet the CI purchased from Appellant
contained heroin and fentanyl.
At the conclusion of the evidence, the jury found Appellant guilty of
PWID-heroin, PWID-fentanyl, possession of a controlled substance-heroin,
possession of a controlled substance-fentanyl, and criminal use of a
communication facility. On July 1, 2021, the court sentenced Appellant as
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follows: 1) 33 to 66 months’ imprisonment for PWID-fentanyl; 2) 27 to 54
months’ incarceration for PWID-heroin, to run concurrently with the sentence
for PWID-fentanyl; 3) 18 to 36 months’ incarceration for criminal use of a
communication facility, to run concurrently with the sentence for PWID-
fentanyl; and 4) no sentence for the simple possession convictions as a result
of merger with the PWID convictions. Appellant filed a post sentence motion
on July 12, 2021. In response, the court vacated the sentence imposed for
PWID-heroin, finding that it merged with the sentence imposed for PWID-
fentanyl. The court otherwise denied Appellant’s post trial motion on
November 4, 2021. Appellant filed a timely notice of appeal on December 3,
2021. On December 6, 2021, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant timely complied on December 27, 2021.
Preliminarily, appellate counsel seeks to withdraw representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349(2009). Anders and Santiago require counsel to: 1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; 2) file a
brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
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points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw:
Neither Anders nor McClendon2 requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361. After confirming that counsel has met the
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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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antecedent requirements to withdraw, this Court makes an independent
review of the record to confirm that the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also
Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
Instantly, appellate counsel has filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and determined
the appeal is wholly frivolous. Counsel supplied Appellant with a copy of the
brief and a proper letter explaining Appellant’s right to retain new counsel or
proceed pro se to raise any additional issues Appellant deems worthy of this
Court’s attention. In the Anders brief, counsel provides a summary of the
facts and procedural history of the case and refers to relevant law surrounding
Appellant’s issues. Counsel further states the reasons for his conclusion that
the appeal is wholly frivolous. Therefore, counsel has substantially complied
with the technical requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf: “Whether there
are any nonfrivolous issues regarding the trial court’s decision to deny
Appellant’s Post-Sentence Motion?” (Anders Brief at 2). Appellant filed a pro
se response to the Anders brief challenging: (1) the sufficiency of the
evidence; and (2) the discretionary aspects of his sentence. (See Appellant’s
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Pro Se Response, filed 9/19/22, at 5-8).3
Specifically, in his first issue, Appellant argues that the evidence was
insufficient to sustain his convictions for simple possession and PWID of
fentanyl because the Commonwealth failed to present any evidence that
Appellant was aware there was fentanyl in the substance that he sold.
In reviewing a challenge to the sufficiency of the evidence:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
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3 In the argument section of the Anders brief, counsel addresses the same
issues raised in Appellant’s pro se response, namely, the sufficiency of the
evidence and the discretionary aspects of sentencing. (See Anders Brief at
6-10).
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Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
The Controlled Substance, Drug, Device and Cosmetic Act defines the
offenses of possession of a controlled substance and PWID as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
* * *
(16) Knowingly or intentionally possessing a
controlled or counterfeit substance by a person not
registered under this act, or a practitioner not registered
or licensed by the appropriate State board, unless the
substance was obtained directly from, or pursuant to, a
valid prescription order or order of a practitioner, or
except as otherwise authorized by this act.
* * *
(30) 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)(16), (30).
In Commonwealth v. Beatty, 227 A.3d 1277 (Pa.Super. 2020), this
Court addressed a very similar issue where the appellant argued that there
was insufficient evidence to sustain his conviction for conspiracy to deliver
heroin and fentanyl because there was no evidence the appellant was aware
that the substance he delivered contained fentanyl. In holding that the
evidence was sufficient to sustain the conviction, this Court stated:
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The statute defining the offense of [PWID] proscribes
delivery of a controlled substance. 18 P.S. 780-113(a)(3).
The provision itself does not designate the controlled
substance. In other words, the specific identity of the
controlled substance is not an element of the offense. The
identity is only relevant for gradation and penalties based
on the relevant schedule.
* * *
The fact that the substance was heroin with fentanyl, not
solely heroin, is of no significance for purposes of
establishing the elements of the statute. Heroin and
fentanyl are both controlled substances. Moreover, this
Court has explained:
A person who intends to possess a controlled
substance, believes he possesses a controlled
substance, and in fact possesses a controlled
substance is guilty of possession of a controlled
substance. The only knowledge that is required to
sustain the conviction is knowledge of the controlled
nature of the substance. The defendant need not
know the chemical name or the precise chemical
nature of the substance.
Commonwealth v. Sweeting, [528 A.2d 978, 980
(Pa.Super. 1987)].
Beatty, supra at 1285.
Here, the Commonwealth presented evidence that Appellant
communicated with the CI by telephone and agreed to sell heroin to the CI for
seventy dollars ($70.00). Additionally, the Commonwealth presented
testimonial and video evidence demonstrating that Appellant arrived at the
agreed upon location and delivered a packet containing heroin and fentanyl in
exchange for money. Viewed in the light most favorable to the
Commonwealth as the verdict winner, the evidence was sufficient to
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demonstrate that Appellant knowingly possessed and delivered a controlled
substance containing both heroin and fentanyl. See Tucker, supra. See
also Beatty, supra. Thus, we agree with appellate counsel that Appellant’s
challenge to the sufficiency of the evidence is without merit.
Appellant further seeks to challenge the discretionary aspects of his
sentence. Challenges to the discretionary aspects of sentencing do not entitle
an appellant to an appeal as of right. Commonwealth v. Watson, 228 A.3d
928, 935 (Pa.Super. 2020). Prior to reaching the merits of a discretionary
aspect of sentencing issue:
We conduct a four-part analysis to determine: (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.A. § 9781(b).
Id. (quoting Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013),
appeal denied, 621 Pa. 682, 76 A.3d 538 (2013)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
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furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,
129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (emphasis in original) (internal
quotation marks omitted).
Instantly, Appellant filed a timely notice of appeal and preserved his
challenge to the discretionary aspects of sentencing in a post-sentence motion
to modify sentence. Both counsel’s Anders brief and Appellant’s pro se
response contain a Rule 2119(f) statement but neither presents a substantial
question for our review. Specifically, counsel concedes: “It would be
submitted that in the present case the trial court’s sentence of 33 to 66
months is not manifestly excessive, particularly where the trial court
considered a number of factors in fashioning its sentence.” (Anders Brief at
5). Counsel acknowledged that the court imposed a sentence within the
guidelines. Thus, “[c]ounsel for Appellant cannot point to any substantial
question that the sentence imposed is not appropriate under the Sentencing
Code.” (Id. at 7).
In his pro se response to the Anders brief, Appellant baldly claims “the
trial court’s sentence was unduly harsh given his circumstances and that the
court failed to consider the mitigating factors.” (Appellant’s Pro Se Response
at 4). This claim also fails to raise a substantial question for our review. See
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Commonwealth v. Disalvo, 70 A.3d 900 (Pa.Super. 2013) (holding general
claim that sentence was excessive because court failed to adequately consider
certain mitigating factors did not raise substantial question).
Moreover, “[t]he determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.” Commonwealth v.
Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). A substantial question
exists “only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Sierra, 752 A.2d
910, 912-13 (Pa.Super. 2000).
Additionally,
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact, this
Court has recognized the imposition of consecutive, rather
than concurrent, sentences may raise a substantial question
in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature
of the crimes and the length of imprisonment.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal
denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation
marks omitted).
Further:
…Where the sentencing court had the benefit of a [pre-
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sentence investigation (“PSI”) report], we can assume the
sentencing court “was aware of relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d
12, 18 (1988). See also Commonwealth v. Tirado, 870
A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court
has benefit of PSI, law expects court was aware of relevant
information regarding defendant’s character and weighed
those considerations along with any mitigating factors).
Further, where a sentence is within the standard range of
the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, [668 A.2d 536(Pa.Super. 1995)], appeal denied, 544 Pa. 653, 676 A.2d
1195 (1996) (stating combination of PSI and standard range
sentence, absent more, cannot be considered excessive or
unreasonable).
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).
Here, the court sentenced Appellant to an aggregate sentence of 33 to
66 months’ incarceration. In fashioning this sentence, the court had the
benefit of a PSI report and imposed a sentence that was within the standard
range. Thus, even if Appellant’s claim presented a substantial question for
our review, we would see no reason to disrupt the court’s sentencing
discretion. See id. To the extent Appellant complains the court should not
have imposed the current sentence consecutive to another sentence Appellant
was serving on a separate docket in Blair County, this claim likewise affords
Appellant no relief.4 See Austin, supra. Following our independent review
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4 The trial court addressed this claim, along with any claim that Appellant’s
charges in Cambia County should have been tried together with his charges
in Blair County, as follows:
(Footnote Continued Next Page)
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of the record, we agree with counsel that the appeal is wholly frivolous. See
Palm, supra. Accordingly, we affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; petition to withdraw is granted.
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[T]he court characterizes [Appellant]’s argument as that of
a question of whether the rule against double jeopardy
would apply to [Appellant] in this particular situation, as he
is arguing that the offenses in Blair County and in Cambria
County formed a single criminal episode. … The court notes
that [Appellant] has not now nor ever provided any
evidence, testimony, or argument that [Appellant] could not
be tried and convicted of the chares at hand based upon the
rule against double jeopardy.
* * *
The court agrees with the Commonwealth that there has not
been any evidence presented to the court that [Appellant]’s
conduct in both Blair and Cambria Counties was an ongoing
criminal episode and that the events that occurred were
total separate crimes. Therefore, the court finds that it was
not improper for the sentences in Blair and Cambria
Counties to be run consecutively and not concurrently.
(Trial Court Opinion, filed 11/4/21, at 3). We agree with the court’s analysis.
There is nothing in the record to indicate that Appellant’s convictions in Blair
County and Cambria County were part of a single criminal episode. Further,
even if Appellant had established as much, Appellant would not be entitled to
relief because the conduct culminating in the instant convictions occurred fully
within Cambria County and outside of Blair County. See Commonwealth v.
Fithian, 599 Pa. 180, 199, 961 A.2d 66, 77 (2008) (holding that convictions
for possession of a controlled substance and PWID were not barred by
compulsory joinder statute because they did not occur within the same judicial
district as former prosecution; stating: “[W]e hold the General Assembly
intended to preclude from the reach of the compulsory joinder statute those
current offenses that occurred wholly outside of the geographic boundaries of
the judicial district in which the former prosecution was brought, even though
part of a single criminal episode”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2023
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