Com. v. Terry, W.

• Court: Superior Court of Pennsylvania
• Decided: December 7, 2015
• Docket: 1415 WDA 2014
• Status: Unpublished

Opinion

J-S62003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WILLIAM TERRY,

Appellant No. 1415 WDA 2014

Appeal from the Judgment of Sentence July 24, 2014 in the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0017301-2013

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 07, 2015

Appellant, William Terry, appeals from the judgment of sentence

imposed following his bench conviction of two counts of possession with

intent to deliver a controlled substance (PWID) and one count of possession

of a controlled substance.1 Counsel for Appellant has petitioned to withdraw

on the ground that his issues on appeal are wholly frivolous.2 We grant

counsel’s petition to withdraw and affirm the judgment of sentence.

The trial court aptly summarized the facts of this case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively. 2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S62003-15

[O]n September 24, 2013, City of Pittsburgh Police Detectives were conducting surveillance on Mitchell’s Bar located at the intersection of Centre and Melwood Avenues in the North Oakland section of the City of Pittsburgh due to recent complaints about drug activity. During their surveillance, Detective Aaron Fetty observed a man, later identified as “Mr. Coughanour”, lingering outside the bar and making a call on his cell phone. Shortly thereafter, [Appellant] exited Mitchell’s Bar, engaged in a hand-to-hand transaction with Coughanour and re- entered the bar. The detectives stopped Coughanour and recovered a pink stamp bag labeled “HULK” containing a powder which was later tested and determined to be .43 grams of heroin. . . . Detective Fetty, along with his partner and two uniformed officers, entered Mitchell’s Bar and arrested [Appellant]. As he was leaving the bar, [Appellant] told Detective Fetty that “you got me”. [(N.T. Suppression, 7/24/14, at 8)]. The search incident to the arrest revealed that [Appellant] had $247.00 and a Cricket cell phone in his possession.

(Trial Court Opinion, 4/28/15, at 2-3).

On July 16, 2014, Appellant filed a pro se motion to suppress

evidence, despite the fact that he was represented by counsel.3 The court

held a hearing on the motion on July 24, 2014, and Appellant’s counsel

litigated the suppression issue.4 Detective Fetty testified that Appellant

made the incriminating statements admitting his involvement in the drug

3 We note that a criminal defendant is not entitled to hybrid representation. See Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011). 4 Although Appellant initially sought suppression of the statements he made to Detective Fetty and the physical evidence of the heroin itself, the parties addressed only the issue of Appellant’s statements because the drugs were recovered from Coughanour, not Appellant. (See N.T. Suppression, at 4); see also Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (holding that defendant lacked legitimate expectation of privacy relative to drugs seized from another person).

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transaction after he was given Miranda5 warnings; Appellant, however,

maintained the detective did not issue Miranda warnings and that he made

no incriminating statements. The court denied the motion to suppress, and

Appellant proceeded immediately to a bench trial. The court found him

guilty of the above-mentioned offenses, and sentenced him to a term of

three years’ probation. Appellant timely appealed.

On January 23, 2015, counsel for Appellant timely filed a statement of

intent to file an Anders brief in lieu of a concise statement of errors. See

Pa.R.A.P. 1925(c)(4). The trial court entered an opinion on April 28, 2015.

See Pa.R.A.P. 1925(a). On June 15, 2015, counsel filed an Anders brief

and a petition to withdraw as counsel stating her belief that there are no

non-frivolous issues to raise on appeal. (See Petition to Withdraw as

Counsel, 6/15/15, at unnumbered page 2). Counsel has submitted to this

Court a copy of her letter to Appellant, enclosing a copy of the Anders brief,

informing him of the petition to withdraw, and advising him of his right to

retain new counsel or proceed with the appeal pro se. (See Letter from

Jessica L. Herndon, Esq. to Appellant, 6/15/15, at unnumbered page 1).

Appellant has not responded.

[I]n the Anders brief that accompanies . . . counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) ____________________________________________

5 Miranda v. Arizona, 384 U.S. 436 (1966).

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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, supra at 361.

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.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel to either comply with Anders or file an advocate’s brief on Appellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non- frivolous issues, we will deny the petition and remand for the filing of an advocate’s brief.

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).

In the instant case, counsel has complied with the Anders and

Santiago requirements. She has submitted a brief that summarizes the

case, (see Anders Brief, at 8-11); referred to anything that might arguably

support the appeal, (see id. at 15, 18, 20); and set forth her reasoning and

conclusion that the appeal is frivolous, (see id. at 15-27). See Santiago,

supra at 361. Counsel has filed a petition to withdraw, sent Appellant a

letter advising that she concluded that there are no non-frivolous issues,

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provided him with a copy of the Anders brief, and notified him of his right to

retain new counsel or proceed pro se. Because counsel’s petition and brief

satisfy the requirements of Anders and Santiago, we will undertake our

own review of the appeal to determine if it is wholly frivolous. See

O’Malley, supra at 1266.

The Anders brief raises the following questions for our review:

I. Was the evidence sufficient to establish that Appellant was in actual or constructive possession of the drugs?

II. Was Appellant’s Sixth Amendment right to confront witnesses denied?

III. Did the trial court err in denying the motion to suppress?

(Anders Brief, at 7) (most capitalization omitted).6

Appellant’s first issue challenges the sufficiency of the evidence to

support his convictions. (See Anders Brief, at 15-17). Specifically, he

argues the Commonwealth failed to establish his actual or constructive

possession of the drugs. (See id.). We disagree.

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 ____________________________________________

6 The Commonwealth submitted a letter to this Court advising that it is not filing a brief and stating its belief that counsel for Appellant has complied with the Anders and Santiago requirements. (See Commonwealth’s Letter, 7/10/15, at 1-2).

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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 finder 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. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015)

The Controlled Substance, Drug, Device and Cosmetic Act defines the

crimes of possession of a controlled substance and PWID as follows:

(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).

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“To establish the offense of possession of a controlled substance with

intent to deliver, the Commonwealth must prove beyond a reasonable doubt

that the defendant possessed a controlled substance with the intent to

deliver it.” Commonwealth v. Perez, 931 A.2d 703, 707-08 (Pa. Super.

2007) (citation omitted). The Commonwealth can prove possession by

establishing actual or constructive possession of the controlled substance.

See id. at 708.

Here, Detective Fetty testified that, while conducting surveillance with

his partner he observed, from a distance of thirty feet, Appellant “hand[]

[Coughanour] some pink objects which at the time we believed to be stamp

bags from the distance that we were.” (N.T. Trial, at 17; see id. at 16-18).

The detectives stopped Coughanour immediately thereafter, informed him of

their observation, and Coughanour “retrieved three stamp bags in his pocket

and gave them to us.” (Id. at 18). The detectives then arrested Appellant

and asked him about the transaction. (See id. at 19-20). Detective Fetty

testified that Appellant did not dispute the sale and admitted: “You got me

on that one.” (Id. at 20; see id. at 21). In contrast, Appellant testified that

he did not encounter Coughanour at the bar, and that he never saw pink

heroin stamp bags. (See id. at 27-29).

After review of the record, and viewing the evidence in the light most

favorable to the Commonwealth, we conclude that there was ample evidence

to support the court’s determination that Appellant possessed the heroin

where Detective Fetty testified that he directly observed Appellant hand the

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heroin packets to Coughanour. See Giordano, supra at 1002. The court

did not find Appellant’s version of events credible, and it, as finder of fact,

was “free to believe all, part or none of the evidence.” Id. at 1003.

Accordingly, Appellant’s first issue does not merit relief.

In his second issue, Appellant claims that his Sixth Amendment right

to confrontation was violated. (See Anders Brief, at 18-19). This issue

lacks merit.7

“Whether Appellant was denied [his] right to confront a witness under

the confrontation clause of the Sixth Amendment is a question of law for

which our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Dyarman, 33 A.3d 104, 106 (Pa. Super. 2011),

affirmed, 73 A.3d 565 (Pa. 2013), cert. denied, 134 S. Ct. 948 (2014)

(citation omitted).

The Confrontation Clause in the Sixth Amendment to the United States Constitution applies to both federal and state prosecutions and provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . . ” U.S. Const. amend. IV. The Pennsylvania Constitution likewise provides that, “[i]n all

7 We agree with the trial court and appellate counsel’s assessment that this issue is waived for Appellant’s failure to present any supporting detail or specificity regarding this claim in the trial court. See Pa.R.A.P. 302(a); (see also Trial Ct. Op. at 4; Anders Brief, at 18). “Nevertheless, in light of [c]ounsel’s petition to withdraw, we address Appellant’s contention.” Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citation omitted) (stating Anders requires review of issues otherwise waived on appeal).

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criminal prosecutions the accused hath a right . . . to meet the witnesses face to face.” Pa. Const. art. I, § 9.

To be sure, the Confrontation Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands not that evidence be reliable but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . .

Commonwealth v. Yohe, 39 A.3d 381, 384-85 (Pa. Super. 2012),

affirmed, 79 A.3d 520 (Pa. 2013), cert. denied, 134 S. Ct. 2662 (2014)

(case citation and footnotes omitted).

. . . [T]he right guaranteed by the Confrontation Clause includes not only a personal examination, but also (1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; [and] (3) permits the [fact-finder] that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the [fact-finder] in assessing his credibility.

Commonwealth v. Atkinson, 987 A.2d 743, 746 (Pa. Super. 2009), appeal

denied, 8 A.3d 340 (Pa. 2010) (citations and quotation marks omitted).

Here, the Commonwealth presented the testimony of only one witness,

Detective Fetty, at the suppression hearing and at trial. (See N.T.

Suppression Hearing and Trial, at 2). A review of the record shows that

Detective Fetty testified under oath and that Appellant’s counsel cross-

examined him during each of these proceedings. (See id. at 5, 9-11, 14,

24-26); see also Atkinson, supra at 746. The trial court, as fact finder,

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observed the detective’s demeanor and assessed his credibility. See

Atkinson, supra at 746.

Based on the foregoing, we conclude that Appellant’s contention that

he was denied his right to confrontation is specious and lacks record

support. Contrary to Appellant’s claim, the record reflects that he exercised

his right to confront Detective Fetty, the only witness who testified against

him. See id. Therefore, Appellant’s second issue does not merit relief.

In his third issue, Appellant contends that the trial court erred by

denying his motion to suppress the statements he purportedly made to

Detective Fetty admitting involvement in the heroin sale. (See Anders

Brief, at 20). This issue does not merit relief.

The standard of review an appellate court applies when considering an order denying a suppression motion is well established. An appellate court may consider only the Commonwealth’s evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, it is also well settled that an appellate court is not bound by the suppression court’s conclusions of law.

With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Only factual findings which are supported by the record are binding upon this [C]ourt.

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In addition, we are aware that questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. In appeals from suppression orders, our scope of review is limited to the evidence presented at the suppression hearing.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)

Statements made during custodial interrogation are presumptively involuntary, unless the accused is first advised of h[is] Miranda rights. Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [his] freedom of action in any significant way. [T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. Thus, [i]nterrogation occurs where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect.

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008)

(quotation marks and most case citations omitted).

Here, Detective Fetty testified that he arrested Appellant and read him

his Miranda warnings. (See N.T. Suppression, at 7-9). He stated that,

after he Mirandized Appellant, he asked Appellant about the drug deal, and

Appellant “openly admitted” involvement in it. (Id. at 8; see also id. at

10). Detective Fetty further testified that he did not threaten Appellant or

use force against him in order to obtain the incriminating statements. (See

id. at 8-9). Appellant, in contrast, testified that the detectives did not issue

Miranda warnings after placing him under arrest. (See id. at 12).

Appellant stated that he did not respond to any of the detectives’ questions,

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that he “said nothing,” and that he did not “volunteer any statements along

the lines of ‘You got me[.]’” (Id.). After considering the testimony

presented by the parties, the trial court found Detective Fetty’s version of

events credible “rather than [Appellant’s] blanket denial that anything

happened,” and denied the motion to suppress. (Id. at 13).

Upon review, and “mindful that it is the sole province of the

suppression court to weigh the credibility of the witnesses,” we conclude that

the court did not abuse its discretion in denying the motion where Detective

Fetty credibly testified that Appellant was Mirandized before he made

incriminating statements. Caple, supra at 516. Therefore, Appellant’s third

issue does not merit relief. Furthermore, after independent review, we

determine that there are no other non-frivolous bases for appeal, and this

appeal is “wholly frivolous.” O’Malley, supra at 1266.

Judgment of sentence affirmed. Petition for leave to withdraw as

counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/7/2015

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