Commonwealth v. Roberson

COMMONWEALTH OF PENNSYLVANIA v. RALPH LEE ROBERSON Appellant

J-A03014-21

No. 317 MDA 2020

SUPERIOR COURT OF PENNSYLVANIA

APRIL 6, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 26, 2019

In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003118-2018

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:

Ralph Lee Roberson (Appellant) appeals from the judgment of sentence imposed after a jury found him guilty of two counts of delivery of a controlled substance, two counts of possession with the intent to deliver, and criminal use of a communication facility.¹ Additionally, Appellant's counsel (Counsel), seeks to withdraw from representation pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we grant Counsel's petition to withdraw and affirm Appellant's judgment of sentence.

Appellant's charges arose from three deliveries of heroin and cocaine during April and May of 2018. Affidavit of Probable Cause, 5/16/18. Appellant made each of the deliveries to an undercover narcotics agent. Id. On May16, 2018, the Commonwealth charged Appellant with the above crimes. On August 13, 2019, Appellant filed a motion to compel the Commonwealth to disclose the identity of the confidential informant who identified Appellant to the police as a drug dealer. The trial court denied Appellant's motion prior to jury selection. See N.T., 8/14/19, at 13. Appellant proceeded to trial, and on August 15, 2019, the jury rendered their guilty verdicts. On September 26, 2019, the trial court sentenced Appellant to an aggregate 8 to 16 years of incarceration.

Appellant appealed.² In lieu of filing a Rule 1925(b) statement, Counsel filed a statement of intent to file an Anders brief pursuant to Pennsylvania Rule of Appellate Procedure 1925(c)(4). On August 6, 2020, Counsel filed an Anders brief, in which she avers that Appellant's appeal is frivolous, and requests permission from this Court to withdraw from representation. Appellant did not file a response to the Anders brief or raise any additional claims.

When faced with a purported Anders brief, we may not review the merits of the underlying issues without first deciding whether counsel has properly requested permission to withdraw. Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). Accordingly, we address the particular mandates that counsel seeking to withdraw pursuant toAnders must follow. These mandates and the significant protection they provide arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). We have explained:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

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 either to comply with Anders or file an advocate's brief on Appellant's behalf).

Id. (citations omitted).

Additionally, there are requirements as to the content of an Anders brief:

[T]he Anders brief that accompanies court-appointed counsel's petition to withdraw ... 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. If counsel has satisfied the above requirements, it is this Court's duty to review the trial court proceedings to determine whether there are any non-frivolous issues that the appellant could raise on appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

Instantly, Counsel has complied with the requirements of Anders. Counsel filed a petition with this Court stating that after reviewing the record, she finds this appeal to be wholly frivolous. Petition to Withdraw as Counsel, 8/6/20, ¶ 14. In conformance with Santiago, Counsel's brief includes summaries of the facts and procedural history of the case, and discusses the issues she believes might arguably support Appellant's appeal. See Anders Brief at 11-38. Counsel sets forth her conclusion that the appeal is frivolous and includes citation to relevant authority. Id. Finally, Counsel has attached to her petition to withdraw the letter she sent to Appellant, which enclosed Counsel's petition and Anders brief. Petition to Withdraw as Counsel, 8/6/20, Ex. A. Counsel's letter advised Appellant of his right to proceed pro se or with private counsel, and raise any additional issues he deems worthy of this Court's consideration. Id. We thus proceed to Appellant's substantive claims, which he states as follows:

I. The Evidence Present at Trial was [insufficient] to Support a Guilty Verdict

II. The Trial Court [erred] by Denying Appellant's Motion to Disclose the Identity of the Confidential InformantIII. Appellant [proved] by a Preponderance of the Evidence that he was Entrapped by Law Enforcement Officers.

Anders Brief at 27-28 (underlining omitted, restated for clarification).

In his first claim, Appellant challenges 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 [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. Leaner, 202 A.3d 749, 768 (Pa. Super. 2019) (citation omitted). To reiterate, the jury, as the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation omitted). In conducting review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. at 39-40.

The Controlled Substance, Drug, Device and Cosmetic Act provides inrelevant part:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: . . .

(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[.]

35 P.S. § 780-113(a)(30).

Criminal use of a communication facility is defined as follows:

A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the . . . Controlled Substance, Drug, Device and Cosmetic Act.

18 Pa.C.S.A. § 7512(a).

Upon review, we find the evidence sufficient to support the jury's guilty verdicts. At trial, the Commonwealth introduced testimony (and exhibits) to demonstrate that Appellant delivered heroin and cocaine to Narcotics Agent Shannon Swope, of the Pennsylvania Attorney General's Office, on April 18, April 20, and May 16, 2018. N.T., 8/14/19, at 65-92. Agent Swope testified that she and Appellant communicated by cell phone to arrange the deliveries. N.T., 8/14/19, at 65, 79, and 89. The Commonwealth also presented the expert testimony of Chief Detective John Goshert, from the Dauphin County District Attorney's Office. Chief Goshert opined that the amount of heroin and cocaine Appellant possessed was an amount typically "possessed with the intent to deliver to another person." Id. at 171.

Appellant testified that on April 18, 2018, after getting in Agent Swope's car, he handed her a bag of heroin. N.T., 8/14/19, at 193, 203. Appellant confirmed that on April 20, 2018, he again delivered heroin to Agent Swope. Id. at 194. Appellant also testified he met Agent Swope on May 16, 2018, while in possession of heroin and cocaine, "to give to her so we [could] make money in Elizabethtown[.]" Id. at 197. Appellant admitted that he and Agent Swope facilitated these transactions by text messaging. Id. at 196-197.

The jury, as the finder of fact, was free to credit the above evidence. Melvin,...