Com. v. Woodberry, N.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2017
• Docket: Com. v. Woodberry, N. No. 2717 EDA 2015
• Status: Unpublished

Opinion

J. S93013/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : V. : : NORMAN WOODBERRY, : : APPELLANT : : No. 2717 EDA 2015 :

Appeal from the Judgment of Sentence August 4, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001998-2015

BEFORE: DUBOW, SOLANO AND PLATT*, JJ.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2017

Appellant appeals from the Judgment of Sentence imposed after a

bench trial in the Philadelphia Court of Common Pleas, and challenges the

weight of the evidence. In addition, Appellant’s counsel, Michael J. Graves,

Jr., Esq., has filed a Brief pursuant to Anders and Santiago,1 and a Petition

to Withdraw. We affirm the Judgment of Sentence, and grant counsel’s

Petition to Withdraw.

The facts, as gleaned from the certified record, are as follows. On

January 2, 2015, and January 3, 2015, Officer Brian Kensey of the

* Retired Senior Judge Assigned to the Superior Court. 1 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J. S93013/16

Philadelphia Police Department, was conducting plainclothes surveillance

with the Narcotics Enforcement Team at the 6300 block of North Norwood

Street in Philadelphia after receiving complaints of drug dealing occurring on

the block. He observed Appellant and Appellant’s co-defendant, Eddie

Donald, speak with individual men on three different occasions while on or

near the porch of the house located at 6327 Norwood. Appellant would

accept U.S. currency from each man, and then give the men small packets,

on one occasion after going into the home. After each transaction, Officer

Kensey relayed a description of the buyer to back-up officers; police officers

stopped each of the three men and found plastic packets containing crack

cocaine and/or heroin in their possession.

On January 3, 2015, Sergeant Andre Simpson arrested Appellant on

the front porch of 6327 Norwood Street. Appellant was lying on his stomach

when Officer Simpson handcuffed him, rolled him over, and told him to sit

up. Officer Simpson then found a clear bag containing four pink-tinted

Ziploc packets holding crack cocaine that had been under Appellant’s body.

Other police officers, who had been in the house prior to Officer Simpson’s

arrival, recovered a clear packet of heroin from inside the house, along with

new and unused Ziploc plastic packets in various colors.

The Commonwealth charged Appellant and his co-defendant with

Manufacture, Delivery, or Possession with Intent to Deliver a Controlled

Substance (“PWID”); Knowing and Intentional Possession of a Controlled

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Substance; Use/Possession of Drug Paraphernalia; and Criminal Conspiracy. 2

Appellant filed an Omnibus Motion seeking to suppress the evidence, which

the trial court denied.

On August 4, 2015, a non-jury trial proceeded, at which four of the

officers involved in the surveillance and arrests testified in detail about the

events leading up to, and including, Appellant’s and his co-defendant’s

arrest. At the conclusion of the trial that same day, the court found

Appellant guilty of the three possession charges.3 The court immediately

sentenced Appellant on the PWID conviction to 9 to 23 months’ incarceration

in county prison with credit for time served, followed by 3 years’ probation.

No further penalty was imposed by the Court on the remaining convictions.

Appellant did not file post-sentence motions.

Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925. Appellant raised one issue in his Pa.R.A.P. 1925(b)

Statement challenging the weight of the evidence.4

On August 2, 2016, counsel for Appellant filed an Anders Brief and a

Petition to Withdraw as counsel. He also filed a copy of a letter addressed to

2 35 P.S. § 780-113(a)(30), (a)(16), and (a)(32); and 18 Pa.C.S. § 903, respectively. 3 The court found Appellant not guilty of conspiracy. The trial court found Appellant’s co-defendant to be not guilty of all of the offenses. 4 The appeal was subsequently dismissed for failure to file a brief, but by Order dated July 18, 2016, this Court reinstated the appeal.

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Appellant informing Appellant of counsel’s Petition to Withdraw and his right

to retain new counsel or proceed pro se. Appellant did not file a response.

In his Anders Brief, counsel raises the following issue on Appellant’s

behalf:

Based on the totality of the Philadelphia Police Officers’ surveillance, observations, investigation and arrest of [Appellant], was the [c]ourt’s [g]uilty [v]erdict against the weight of the evidence[?]

Anders Brief at 7.

Before we address the merits of this appeal, we must determine

whether counsel has complied with the procedures provided in Anders and

its progeny. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). Counsel who wishes to withdraw must file a petition to

withdraw stating that he or she has made a conscientious examination of the

record and determined that there are no meritorious issues to be raised on

appeal. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

Also, counsel must provide a copy of the Anders Brief to the appellant and

inform him of his right to proceed pro se or retain different counsel. Id.

See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005).

The substance of the 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

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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.

Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous. See Goodwin, supra at 291; Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (footnote and citation omitted).

Counsel in the instant appeal has complied with the above

requirements. We, therefore, proceed with our independent review of the

record, first addressing the weight challenge raised in both the Rule 1925(b)

Statement and the Anders Brief.

The only issue raised by Appellant was whether the verdict is against

the weight of the evidence. Before reaching the merits of that question, we

must determine whether it has been properly preserved for consideration on

appeal. Commonwealth v. Washington, 825 A.2d 1264, 1265 (Pa.

Super. 2003). Pennsylvania Rule of Criminal Procedure 607 provides in

relevant part as follows:

(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

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(2) by written motion at any time before sentencing; or (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).

Here, Appellant did not file a post-sentence motion. He first raised his

claim that the verdict was against the weight of the evidence in his Pa.R.A.P.

1925(b) Statement. Because he did not comply with Rule 607, we must

find, as did the trial court, that this claim is waived. See Trial Court

Opinion, dated March 30, 2016, at 13.5

We further note that, although titled a weight challenge, the body of

counsel’s Anders Brief challenges the sufficiency of the evidence supporting

5 In addition, we note that “[a] weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the grounds that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice.” In re A.G.C., 142 A.3d 102, 109 (Pa.Super. 2016) (citation omitted). “Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.” Commonwealth. v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation omitted). “Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination of whether the verdict is against the weight of the evidence.” Id. (citation omitted). Here, because Appellant did not file a post-sentence motion, the trial court was not presented with an opportunity to consider whether the verdict was against the weight of the evidence. However, in light of the testimony presented at trial, which the court found credible, we do not believe that the trial court would have abused its discretion had it been able to conclude that the verdict was not against the weight of the evidence. See id. (noting that “[o]ne of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.” (citation omitted)).

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Appellant’s PWID conviction. The sufficiency challenge was not raised in

Appellant’s Rule 1925(b) Statement and, therefore, is also waived.

Pa.R.A.P. 1925(b)(4)(vii).

However, in accordance with Goodwin and Flowers, supra, we have

conducted an independent review of the record and conclude that, even if a

sufficiency challenge had been properly preserved for appeal, we would

conclude it has no merit.

We review a sufficiency challenge guided by the following precepts:

The standard we apply in reviewing the sufficiency of 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 that of 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. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007)

Appellant challenges only his PWID conviction. The Pennsylvania

Substance, Drug, Device and Cosmetic Act provides that a person, who is

not authorized by appropriate registration or license, may not manufacture,

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deliver, or possess a controlled substance with intent to manufacture or

deliver, a controlled substance. 35 P.S. 780-113(a)(30).

To convict a person of PWID, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it. In determining whether there is sufficient evidence to support a PWID conviction, all facts and circumstances surrounding the possession are relevant, and the Commonwealth may establish the essential elements of the crime wholly by circumstantial evidence. Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant.

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005)

(internal citations omitted).

The Commonwealth may prove either actual or constructive possession

of the drugs with proof of constructive possession requiring evidence of the

defendant’s intent and power to control the contraband. Id. at 1014.

In its Pa.R.A.P 1925(a) Opinion, the trial court provided a detailed

recitation of the testimony provided by all four police officers involved in the

surveillance and subsequent arrests of Appellant and his co-defendant. Our

review of the record supports the trial court’s recitation and we, thus, adopt

it for purposes of this appeal. We conclude that, viewing the record

evidence in the light most favorable to Commonwealth as the verdict winner,

the Commonwealth proved each element of the PWID offense with sufficient

evidence.

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Accordingly, in light of the above and our further independent review

of the record, we conclude that there are no meritorious issues to be raised

on appeal, and the Judgment of Sentence should be affirmed.

The parties are directed to annex a copy of the trial court’s March 30,

2016 Opinion to all future filings.

Judgment of Sentence affirmed. Counsel’s Petition to Withdraw

granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2017

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