Opinion
J-S38026-19 No. 3327 EDA 2018
10-29-2019
COMMONWEALTH OF PENNSYLVANIA v. TYRONE TAYLOR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 4, 2017
In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004674-2015 BEFORE: OTT, J., DUBOW, J., and COLINS, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court. --------
Appellant, Tyrone Taylor, appeals from the December 4, 2017 Judgment of Sentence entered in the Philadelphia County Court of Common Pleas following his convictions of Possession With Intent to Deliver ("PWID"), Possession of a Controlled Substance ("Possession"), and Criminal Use of a Communication Facility. He challenges the sufficiency and weight of the Commonwealth's evidence. Appellant's counsel has filed an Application to Withdraw as Counsel and a Brief pursuant to Anders v California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). After careful review, we grant counsel's Application to Withdraw and affirm Appellant's Judgment of Sentence.
35 P.S. §§ 780-113(a)(30), 780-113(a)(16) and 18 Pa.C.S. 7512(a), respectively.
The relevant factual and procedural history, as gleaned from the certified record, is as follows. In the Fall of 2015, the Coatesville Police Department and the Chester County Detectives learned they were both investigating Appellant for suspected drug-trafficking, and merged investigations.
On October 6, 2015, Corporal Shannon Miller, a six-year veteran of the Coatesville Police Department narcotics unit, set up a controlled buy with a confidential informant ("CI #1") and two other police officers. Corporal Miller searched CI #1's car and person before and after the controlled buy. Corporal Miller gave CI #1 $200 in prerecorded currency and CI #1 contacted Appellant via cellphone to set up a meeting at a local carwash. Appellant pulled into the carwash in a gray Acura and Appellant and CI #1 both drove to a second location, a Domino's Pizza a quarter mile away. At the Domino's pizza, CI #1 entered Appellant's car for approximately one minute, and gave Appellant the prerecorded $200 in exchange for four small green baggies of crack cocaine. CI #1 turned the cocaine over to police.
On October 21, 2015, Detective Oscar Rosado, an eleven-year veteran of the police force currently deployed out of the Chester County Detectives Office and assigned to the High Intensity Drug Trafficking Areas, set up a controlled buy with a second confidential informant ("CI #2"). Detective Rosado searched CI #2's person before and after the buy. Detective Rosado gave CI #2 $100. CI #2 contacted Appellant via cellphone. After a few phone calls, CI #2 and Appellant agreed to meet at a Marriott Hotel in Coatesville, PA. Appellant arrived in a gray Acura. CI #2 entered the car and gave Appellant $100 in exchange for six small red bags of cocaine. CI #2 turned the cocaine over to police.
On October 27, 2015, Corporal Miller set up a second controlled buy with CI #1. Once again, Corporal Miller searched CI #1's car and person before and after the controlled buy, and gave CI #1 prerecorded money. CI #1 contacted Appellant via telephone and drove to the local carwash to meet Appellant, who arrived in a gray Acura. CI #1 and Appellant drove to a second location, the same Domino's pizza. CI #1 walked up to passenger window of Appellant's car, leaned against the car, and gave Appellant the prerecorded money in exchange for four small yellow baggies of cocaine.
On October 29, 2015, at 6:00 AM, Corporal Miller and fellow officers executed a search warrant at 124 Country Run Drive, a home where police had conducted surveillance and observed Appellant's gray Acura parked there at least ten times. Upon entering the residence, police located four individuals upstairs: Appellant, Appellant's girlfriend, and two children. Police searched a nightstand drawer and found men's clothing. From the same nightstand, Police recovered $745, two Apple cell phones, and a loosely knotted plastic bag containing 20 red Ziploc bags of cocaine totaling 2.93 grams. From under the bed, police recovered a plate with residue on top of a shoebox, a bag stamped with an apple containing several empty yellow plastic bags and additional plastic bags that were cut and had the knots cut off. Upon investigation, Police confirmed that some of the money found in the drawer matched the serial numbers of the buy money used on October 27, 2015. Police subsequently arrested Appellant.
At trial, the Commonwealth presented testimony from Detective Rosado, Corporal Miller, CI #1, CI #2, and various police officers who conducted surveillance of the transactions, assisted in executing the search warrant, or aided in the investigation. Notably, the Commonwealth presented testimony from Detective Jeremy Rubincan, who conducted surveillance of the October 21, 2015 controlled buy, assisted with the execution of the October 29, 2015 search warrant, and was qualified as an expert in the field of narcotics trafficking. Detective Rubincan testified, inter alia, that in his expert opinion, Appellant possessed the cocaine seized from the home with the intent to distribute it. Detective Rubincan considered: the weight of the drugs found in the home; the plate indicating that Appellant was cutting the cocaine with other agents; the empty bags to package; the $745 in mostly $20 bills that is the average cost of a baggie of cocaine; and the knots that had been cut off the baggies indicating that someone had dumped the cocaine out to repackage it. See N.T. Trial, 4/27/17, at 211-217
Following Appellant's trial, a jury convicted him of four counts of PWID, four counts of Possession, and three counts of Criminal Use of a Communication Facility. On December 4, 2017, the trial court sentenced Appellant to an aggregate term of 36 months to 72 months' incarceration.
Appellant did not file a Post-Sentence Motion or a timely Notice of Appeal from his Judgment of Sentence.
On May 24, 2018, Appellant filed a pro se Petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, after which the PCRA court appointed counsel and reinstated Appellant's direct appeal rights nunc pro tunc. This timely appeal from Appellant's Judgment of Sentence followed.
On December 5, 2018, counsel filed a Statement of Intent to File an Anders Brief pursuant to Pa.R.A.P. 1925(c)(4). In response, the trial court issued a Memorandum Opinion stating that in light of appellate counsel's Statement of Intent to File an Anders Brief, "the [c]ourt has no complained of errors to address in this Opinion and we refer the Superior Court to the record for review of defense counsel's forthcoming brief." Trial Ct. Op., filed 4/3/19, at 1.
In this Court, counsel has filed an Anders Brief raising a challenge to the sufficiency of the evidence and asserting that the verdict was against the weight of the evidence. Anders Br. at 5. In addition, counsel has filed an Application to Withdraw as Counsel.
Appellant filed a pro se Response to counsel's Anders Brief, likewise claiming that that his conviction is against the weight of the evidence, arguing that the evidence and testimony presented at trial contained inconsistencies. Response at 1-4.
Before this Court may consider the merits of the issues raised, we must address counsel's Application to Withdraw. See Commonwealth v. Daniels , 999 A.2d 590, 593 (Pa. Super. 2010) ("When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw."). In order for counsel to withdraw from an appeal pursuant to Anders , our Supreme Court has determined that counsel must meet certain requirements, including:
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , 978 A.2d at 361.
(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.
In the instant case, counsel has complied with all of the requirements of Anders as articulated in Santiago. Additionally, counsel confirms that she sent Appellant a copy of the Anders Brief, as well as a letter explaining to Appellant that he has the right to proceed pro se or retain new counsel. See Commonwealth v. Millisock , 873 A.2d 748, 751 (Pa. Super. 2005) (describing notice requirements). Counsel appended a copy of the letter to her Application to Withdraw. See Motion to Withdraw, Ex. 3, (Letter, dated May 9, 2019).
Because appellate counsel has satisfied the above requirements, we will address the substantive issues raised in the Anders Brief and the pro se Response. It is generally this Court's duty to conduct "a simple review of the record to ascertain if there appear on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated." Commonwealth v. Dempster , 187 A.3d 266, 272 (Pa. Super. 2018) (en banc). However, because Appellant filed a pro se Response to the Anders Brief, our independent review is limited to those issues raised in the Anders Brief. Commonwealth v. Bennett , 124 A.3d 327, 333 (Pa. Super. 2015). We then review the subsequent pro se Response as we do any advocate's brief, and consider the merits of the issues contained therein and rule upon them accordingly. Id. at 333-34.
In her Anders Brief, counsel indicated that Appellant wished to raise the following issues for our review:
1. Was the evidence insufficient for the jury's finding of guilt on four counts of [PWID, 35 Pa.C.S. § 780-113(a)(30)], four counts of [Possession, 35 Pa.C.S. § 780-113(a)(16)], and three counts of Criminal Use of a Communication Facility, [19 Pa.C.S. § 7512(a)]?Anders Brief at 5.
2. Was the finding of guilt on the above charges against the weight for the evidence presented by the Commonwealth?
The Anders Brief first challenges the sufficiency of the evidence in support of Appellant's PWID, Possession, and Criminal Use of a Communication Facility convictions. Anders Brief at 34-36.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). "We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017), appeal denied, 183 A.3d 970 (Pa. 2018) (internal quotation marks and citations omitted). "Further, a conviction may be sustained wholly on circumstantial evidence, and 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." Id. "In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder." Id.
The Crimes Code has defined the offense of PWID, in relevant part, as follows:
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:35 P.S. § 780-113(a)(30).
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(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.
To establish the offense of PWID, the Commonwealth must prove beyond a reasonable doubt that Appellant both possessed a controlled substance and had the intent to deliver it. Commonwealth v. Kirkland , 831 A.2d 607, 611 (Pa. Super. 2003). "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." Commonwealth v. Bricker , 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation omitted).
Evidence is sufficient to support a conviction for Possession if the Commonwealth shows that the defendant, "[k]nowingly or intentionally possess[ed] a controlled or counterfeit substance[.]" 35 P.S. § 780-113(a)(16).
It is well-settled that when an individual is found guilty of possessing contraband which was not found on his person, the Commonwealth is required to prove that he had constructive possession of the contraband. See Bricker , 882 A.2d at 1014. Constructive possession is a legal fiction; it is an inference from a set of facts that the defendant more likely than not had control of contraband that was not found on his person. Commonwealth v. Mudrick , 507 A.2d 1212, 1213 (Pa. 1986). The Pennsylvania Supreme Court defines constructive possession as "conscious dominion" which is "the power to control the [contraband] and the intent to exercise that control." Commonwealth v. Johnson , 26 A.3d 1078, 1093 (Pa. 2011) (citation and quotation omitted). Constructive possession is inferred from the totality of the circumstances, and circumstantial evidence may be used to establish constructive possession. Id. at 1094.
The Crimes Code has defined the offense of Criminal Use of a Communication Facility, in relevant part, 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 act of April 14, 1972 (P.L. 233, No. 64) known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.18 Pa.C.S. § 7512(a). The term "communication facility" includes telephones. Id. at Section 7512(b). To sustain a conviction for Criminal Use of a Communication Facility, "the Commonwealth must prove beyond a reasonable doubt that: (1) Appellants knowingly and intentionally used a communication facility; (2) Appellants knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony occurred." Commonwealth v. Moss , 852 A.2d 374, 382 (Pa. Super. 2004).
Instantly, the Commonwealth presented evidence that there were three hand-to-hand sales where—after police searched the CI—the CI called Appellant on his cellphone, met Appellant, provided money to Appellant, obtained cocaine from Appellant, and turned the cocaine over to police. Various police officers observed the transactions and offered their testimony at trial. Both CI #1 and CI #2 testified at trial and positively identified Appellant as the individual who sold them cocaine after they called him on his cellphone. Viewing this evidence in the light most favorable to the Commonwealth, the evidence was sufficient to prove three counts each of PWID, Possession, and Criminal Use of a Communications Facility.
As to the fourth count of PWID and Possession, the Commonwealth presented evidence that, upon searching 124 Country Run Drive, they encountered Appellant asleep in the bedroom with his girlfriend. Police recovered cocaine and men's clothing from the nightstand next to where Appellant was sleeping, as well as some of the prerecorded buy money that the CIs used during the controlled buys. Looking at the totality of the circumstances, these facts were sufficient to infer that Appellant had constructive possession of the cocaine, or that he more likely than not had control of the cocaine even though it was not found on his person. See Johnson , 26 A.3d at 1093; Mudrick , 507 A.2d at 1213.
The Commonwealth also presented testimony from Detective Rubincan, who concluded that in his expert opinion, based on the totality of the circumstances, Appellant possessed the cocaine recovered from the home with the intent to distribute it. Accordingly, the Commonwealth presented sufficient evidence to prove the fourth counts of both PWID and Possession.
Finally, in the Anders Brief and Appellant's pro se Response, counsel and Appellant raise challenges to the weight of the evidence, asserting that the evidence and testimony that the Commonwealth presented at trial contained inconsistencies. Id. at 4 (unpaginated).
Before we reach the merits of Appellant's weight claim, we must determine whether Appellant has preserved it for appellate review. A weight of the evidence claim must be raised before the trial court pursuant to Pa.R.Crim.P. 607(A) or it will be waived. See Commonwealth v. Kinney , 157 A.3d 968, 972 (Pa. Super. 2017), appeal denied, 170 A.3d 971 (Pa. 2017) (holding that because defendant failed to raise a challenge to the weight of the evidence before the trial court in either an oral or written motion for a new trial, he waived this claim for appeal). Our review of the record reveals that Appellant did not properly raise the weight of the evidence issue before the trial court, either orally on the record before sentencing, in a written pre-sentence motion, or in a post-sentence motion. See Pa.R.Crim.P. 607(A). Accordingly, the claim is waived.
In sum, following our review, and considering all of the evidence admitted at trial in the light most favorable to the Commonwealth as verdict winner, we conclude there is sufficient evidence to enable the jury to find every element of each crime beyond a reasonable doubt. Moreover, Appellant has waived his challenges to the weight of the evidence. We, therefore, conclude that neither Appellant's counsel nor Appellant have identified any non-frivolous issues for us to address on appeal. We affirm Appellant's Judgment of Sentence and grant appellate counsel's Application to Withdraw as Counsel.
Judgment of Sentence affirmed. Application to Withdraw as Counsel granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/29/19