Com. v. Scott, E.

• Court: Superior Court of Pennsylvania
• Decided: March 28, 2025
• Docket: 781 WDA 2024
• Status: Unpublished

Opinion

J-S06045-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERNEST MALACHI SCOTT : : Appellant : No. 781 WDA 2024

Appeal from the Judgment of Sentence Entered March 11, 2024 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000877-2022

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: March 28, 2025

Ernest Malachi Scott (“Appellant”) appeals from the aggregate judgment

of sentence of 35 months to 7 years of incarceration imposed following his

convictions of one count each of possession of a controlled substance

(contraband/inmate), possession with the intent to deliver a controlled

substance, possession of a controlled substance, and possession of drug

paraphernalia.1 Appellant’s counsel, Lance T. Marshall, Esq., concludes that

Appellant has no non-frivolous issues to raise in this appeal and, thus, he

seeks to withdraw his representation of Appellant pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of

sentence and grant counsel’s petition to withdraw. ____________________________________________

1 18 Pa.C.S. § 5123(a.2), 35 Pa.C.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively. J-S06045-25

We take the facts of this case from the trial transcript. Appellant was

an inmate at the State Correctional Institution (“SCI”) at Houtzdale at the

time of this incident. N.T. Jury Trial, 1/12/24, at 22. At his trial, Corrections

Officer (“CO”) Edward Sinclair testified that he was informed by an SCI

intelligence agent, Lieutenant Paul English, that Appellant possessed

suboxone, a controlled substance. Id. To investigate, CO Sinclair and his

partner entered Appellant’s housing unit and conducted a search of his cell.

Id. at 23. When Appellant disrobed during this search and handed his

sweatpants to CO Sinclair as directed, a plastic baggie with several individually

wrapped pieces of suboxone was found concealed in a pocket. Id. at 23-24.

Appellant was then restrained. Id. at 24.

In his defense, Appellant claimed entrapment by the corrections officers,

and explored before the jury how an inmate could have obtained the drugs,

either through contact visits with persons from outside the prison or via the

prison mail system. Appellant explained that he currently had two civil

lawsuits pending against the Department of Corrections, and inferred that

these suits were the reason he was being set up here.2 According to Attorney

Marshall, Appellant’s trial strategy was based on the maxim, “[W]hen you

have eliminated all which is impossible, whatever remains, however

improbable, must be the truth.” Anders Brief at 11-12. In other words, ____________________________________________

2 While Appellant claims this as a motive, we note that the suboxone was found on him on October 27, 2021, and his two lawsuits in federal court were filed on November 8, 2021, and April 13, 2022, respectively. N.T. Jury Trial at 97-101.

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Appellant argued at trial that, by eliminating all possible known avenues for

an inmate to obtain suboxone, Appellant established the truth of his testimony

— that he obtained the drug from Lieutenant English and was “working for

security” in the prison. Id. at 12. The defense’s theory was no surprise to

the Commonwealth. Defense counsel at trial asked CO Sinclair whether

Appellant had claimed to be “working for security.” N.T. Jury Trial at 38. In

response, CO Sinclair stated, “I don’t believe they have anybody that really

works for security as an inmate there. I don’t think that is a position there.”

Id. at 39. Nonetheless, CO Sinclair stated that he never asked Appellant how

he came into possession of the suboxone, and stressed that inmates were not

permitted to possess suboxone at any time. Id. at 40.

Corrections Criminal Investigator Daniel Cuiffi testified that the

suboxone found on Appellant during this search was different from the

suboxone that might be dispensed by medical personnel at the jail; the

suboxone in the infirmary came only in pill form or via an injection, not the

small strips of the substance that were in the baggie found in Appellant’s

pants. Id. at 45-46. Agent Cuiffi transported the seized substance to the

crime lab for analysis. Id. at 48. Further, Agent Cuiffi testified that he asked

Lieutenant English about Appellant’s claims to be “working security,” but that

he ultimately concluded the claim was false because, “[W]e don’t operate that

way. And I know the [s]ecurity [o]ffice doesn’t work that way. … We don’t

have inmates working for us unless they’re in an official capacity. And this is

absolutely not an official capacity.” Id. at 52. Again, however, the agent

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explained that he did not investigate from where the suboxone ultimately

came. Id. at 53.

Following a jury trial, Appellant was convicted of all charges and the trial

court sentenced him to an aggregate term of 35 months to 7 years of

incarceration. Appellant filed a timely post-sentence motion arguing that the

evidence was insufficient to support his convictions because the

Commonwealth did not prove where Appellant had obtained the suboxone.

After ordering the parties to submit briefs on the matter, the trial court denied

the post-sentence motion on May 28, 2024. Appellant filed a timely notice of

appeal on June 27, 2024. Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.3

Before reaching the merits of Appellant’s claim, we must first address

Attorney Marshall’s petition to withdraw. On October 22, 2024, Attorney

Marshall filed a petition to withdraw along with an Anders brief. When faced

with such a filing, this Court “must first determine whether appellate counsel

____________________________________________

3 A month after the notice of appeal was filed, Appellant filed a pro se petition

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. As his direct appeal was pending, the trial court properly denied this petition. See Commonwealth v. Williams, 215 A.3d 1019, 1023 (Pa. Super. 2019) (“If a petition is filed while a direct appeal is pending, the PCRA court should dismiss it without prejudice towards the petitioner’s right to file a petition once his direct appeal rights have been exhausted.”); see also Commonwealth v. Leslie, 757 A.2d 984, 985-86 (Pa. Super. 2000) (holding that a PCRA petition may only be filed after an appellant has waived or exhausted his direct appeal rights; the PCRA court improperly considered Leslie’s PCRA petition filed during the pendency of his direct appeal).

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has satisfied all of the requirements that court-appointed counsel must meet

before leave to withdraw may be granted.” Commonwealth v. Weitzel, 304

A.3d 1219, 1223 (Pa. Super. 2023).

When seeking to withdraw as counsel on a direct appeal under Anders,

counsel must file a petition stating that he or she has made a conscientious

examination of the record and has determined that the appeal would be

frivolous. Commonwealth v. Watts, 283 A.3d 1252, 1254 (Pa. Super.

2022). Further, counsel must also file a brief referring to any issues that

might arguably support the appeal. Id. The 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, 978 A.2d at 361. Counsel must also provide a copy of the Anders

brief to his client, advise the appellant of his right to retain a new lawyer or

to proceed pro se on appeal, and inform the appellant that he may raise any

additional points that the appellant deems worthy of the court’s attention.

Weitzel, 304 A.3d at 1223. After determining that counsel has satisfied the

technical requirements of Anders and Santiago, this Court must then

“conduct its own review of the trial court’s proceedings and render an

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independent judgment as to whether the appeal is wholly frivolous.” Id. at

1224.

Following review, we conclude that counsel has complied with each of

the requirements under Anders and Santiago. Attorney Marshall indicates

that he made a conscientious examination of the record, and his Anders brief

includes a summary of the relevant history of the case, refers to the pertinent

portions of the record, and sets forth the conclusion that Appellant’s appeal is

frivolous. Counsel also explains his reasoning in reaching that conclusion, and

supports his rationale with citations to the record and pertinent legal authority.

Further, the record includes both counsel’s petition to withdraw and a copy of

the letter sent to Appellant in which Attorney Marshall informed Appellant of

his right to proceed pro se, to retain private counsel, or to withdraw his appeal.

The letter further informed Appellant that he had the right to raise any

additional points to this Court as he deemed necessary.4 Accordingly,

Attorney Marshall has complied with the technical requirements for

withdrawal. We will now independently review the record to determine if

Appellant’s issue is frivolous, and to ascertain if there are any other, non-

frivolous issues he could pursue on appeal.

In Attorney Marshall’s Anders brief, he raises the following issue for our

review:

4 To date, Appellant has not filed a reply to counsel’s Anders brief.

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Did the trial court abuse its discretion when it denied [Appellant’s] request for a new trial on the grounds that the verdict was against the weight of the evidence[?]

Anders Brief at 13.

Preliminarily, we note that a verdict is against the weight of the evidence

“only when the jury's verdict is so contrary to the evidence as to shock one’s

sense of justice.” Commonwealth v. VanDivner, 962 A.2d 1170, 1177 (Pa.

2009) (citation omitted). It is well-established that a weight of the evidence

claim is addressed to the discretion of the trial court, and “[a] new trial should

not be granted because of a mere conflict in the testimony or because the

judge on the same facts would have arrived at a different conclusion.”

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000). When

evaluating the trial court’s ruling, we must remember that an abuse of

discretion is not merely an error in judgment. Commonwealth v. Arnold,

284 A.3d 1262, 1277 (Pa. Super. 2022). Instead, an abuse of discretion is

shown when a court’s decision is based upon bias, partiality, prejudice, ill-will,

manifest unreasonableness, or a misapplication of the law. Id. By contrast,

a proper exercise of discretion conforms to the law and is based on the facts

of record. Id.

Thus, the role of the trial court in addressing a weight claim is to

determine whether, notwithstanding all the evidence, certain facts are so

clearly of greater significance that to ignore them, or to give them equal

import with all other facts from the case, is to deny justice. Widmer, 744

A.2d at 752. Even so, because a motion for a new trial on the grounds that

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the verdict is contrary to the weight of the evidence concedes that there is

sufficient evidence to support the verdict, the trial court is under no obligation

to review the evidence in the light most favorable to the verdict winner. Id.

Moreover, in reviewing a challenge to the weight of the evidence, the

function of an appellate court is to review the trial court’s exercise of discretion

based upon a review of the record, rather than to consider de novo the

underlying issue. VanDivner, 962 A.2d at 1178. Appellate review “is limited

to whether the trial judge’s discretion was properly exercised, and relief will

only be granted where the facts and inferences of record disclose [an] abuse

of discretion.” Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008).

In rejecting Appellant’s challenge to the weight of the evidence, the trial

court explained its reasoning as follows:

During trial, the Commonwealth called three witnesses: a corrections officer who was present for the incident with [Appellant]; Agent Cuiffi, the investigating officer; and the lab employee who tested the substance. The corrections officer testified that following a search of [Appellant,] he found suboxone strips in his pocket. [Appellant] told the search team that he was working for security and that was why he had the suboxone strips. Agent Cuiffi testified that if an inmate is working for security, they are not allowed to possess controlled substances. The [c]ourt finds that the Commonwealth witnesses were credible. Defense then presented testimony in which [Appellant] testified that Lieutenant English gave him suboxone to work for security because [Appellant had] filed a federal lawsuit against employees of the prison. However, the lawsuits were not filed until after the present incident occurred. The lawsuits also did not include the people that were involved in the incident where [Appellant] had suboxone on his person. The [c]ourt found [Appellant’s] testimony was not credible.

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As such, the jury[’s] verdict was not so contrary to the evidence presented at trial that it would shock one’s sense of justice. The evidence presented at trial satisfied each element beyond a reasonable doubt. [Appellant] is not entitled to a new trial merely because the jury did not accept [his] claim of entrapment. [Appellant’s] entrapment argument required the jury to believe that the employees at SCI Houtzdale held a grudge against [Appellant] because he filed pro se lawsuits against some of the employees of the prison. However, the employees involved in the present incident were not even parties to the lawsuit. Furthermore, [Appellant] was asking the jury to give more weight to his self-serving testimony than to the testimony of the corrections officer and the investigating officer, who would gain no benefit from entrapping [Appellant]. Thus, it was not unreasonable for the jury to give greater weight to the Commonwealth’s evidence.

Trial Court Opinion (“TCO”), 5/28/24, at 2-3 (citations omitted).

We discern no abuse of discretion in the court’s decision. While

Appellant continues to assert that he was “working for security” under the

supervision of Lieutenant English to discover which inmates were taking drugs

at the prison, CO Sinclair testified that no inmate at the prison works for

security like Appellant has claimed. N.T. Jury Trial at 39. Agent Cuiffi further

explained that the security office at the prison “doesn’t work that way,” and

that no inmate would be tasked with assisting in an investigation of the

availability or use of drugs in the prison in an unofficial capacity. Id. at 52.

The trial court specifically credited the testimony of these two witnesses. TCO

at 2. As the trial court noted, the jury is not required to believe Appellant’s

self-serving testimony on this issue; it is beyond cavil that finders of fact are

free to believe all, some, or none of the evidence presented to them.

Commonwealth v. Murray, 83 A.3d 137, 154 (Pa. 2013). Appellant has

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produced no evidence that the court’s decision is a result of bias, partiality,

prejudice, ill will, or unreasonableness. After a review of the record, we agree

with the trial court that the guilty verdict in this case was not so contrary to

the evidence as to shock one’s sense of justice. Therefore, this issue is wholly

without merit.

Accordingly, we agree with Attorney Marshall’s determination that

Appellant’s challenge to the weight of the evidence supporting his guilty

verdict is frivolous. Additionally, our review of the record reveals no other,

non-frivolous issues that counsel could assert on Appellant’s behalf. We thus

affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

DATE: 3/28/2025

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