Opinion
J-S02020-17 No. 3732 EDA 2015
04-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAVID RIVERA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0010239-2014 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ. MEMORANDUM BY STABILE, J.:
Appellant, David Rivera, appeals from the October 30, 2015 judgment of sentence imposing three to ten years of incarceration for possession with intent to deliver a controlled substance ("PWID") and conspiracy. Counsel has filed a brief and petition to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967) and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant counsel's petition to withdraw.
35 P.S. § 780-113(a)(30).
18 Pa.C.S.A. § 903. --------
The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion:
On July 8, 2014, at about 7:00 p.m., Philadelphia Police Officer John Seigafuse, a member of the 25th Police District's Narcotics Enforcement Team, was assigned with other team members to conduct a drug investigation in the 3300 block of N. 5th Street. Seigafuse and his partner, Officer Eric Crawford, commenced a surveillance of the 3300 block from inside their vehicle. Upon doing so, Officer Seigafuse observed Appellant speaking to a male later identified as Ronald Burke on the 3300 block of N. 5th Street. During the conversation, Appellant and Burke were approached by one Carl Paris after which both Appellant and Burke removed United States currency from their pockets and handed it to Paris, who put the money into his pants. Paris then walked to a gold Chevy Tahoe parked on the 500 block of Westmoreland Street.
Paris stayed in the car for a short while before returning to the 3300 block of N. 5th Street where he handed Appellant a small object. Officer Seigafuse saw Appellant ball his hand around the object, cross the street, and then place the object behind steps along a wall of a residence situated on the east side of the street. Appellant then sat on the steps of that residence as Paris walked up and down the block. After approximately ten minutes, Burke was approached by another male identified as Juan Ramos, who handed him money. Burke put the money in his pants' pocket, walked to a nearby abandoned property and retrieved small objects from a blue packet located in a pile of trash. Burke handed the objects to Ramos and then returned the blue packet to the trash pile. Ramos walked away and was stopped by members of the back-up team assisting Officer Seigafuse and his partner. From Ramos police recovered an orange-tinted Ziploc packet filled with what later testing revealed to be crack cocaine.
About five minutes after Ramos engaged in the transaction with Burke a man named Hector Torres engaged Burke in a similar transaction after which he was stopped. Recovered from Torres was one orange-tinted crack filled packet.
Shortly thereafter, a man named Angel Burros approached Appellant and began a short conversation during which Burgos handed Appellant money. After taking the money from Burgos, Appellant proceeded to the location where he earlier placed the object he received from Paris, picked up a clear plastic bag, and
removed an item handing it to Burgos. Buros was stopped by police who recovered a clear packet filled with powdered cocaine.Trial Court Opinion, 6/20/2016, at 2-4 (record citations omitted).
After observing this third transaction, Officer Seigafuse directed members of his back-up team to stop Appellant, Burke, and Paris. Police recovered $83.00 from Appellant. Police recovered $599.00 from Paris. Sergeant Wali Shabazz, who apprehended Appellant, then, proceeded, at Officer Seigafuse's behest, to the location where Officer Seigafuse saw Appellant place the object he received from Paris. Shabazz recovered a clear plastic bag filled with eleven packets containing powdered cocaine. In addition, Officer Seigafuse directed Officer Czapor to the location of the trash pile where Burke was observed obtaining small objects that he gave to Ramos and Torres. Officer Czapor recovered a blue aluminum foil packet that, inter alia, contained two orange-tinted Ziploc packets of crack cocaine that were identical to the packets recovered from Torres and Ramos. All of the items collected by police were placed on property receipts.
Following the apprehension of Appellant, Burke, and Torres, police obtained a search warrant to search the gold Tahoe. Upon executing the warrant, police seized $3,410 and a bag filled with seven bundles containing twelve clear packets of powdered cocaine, identical to the eleven clear packets recovered on 5th Street from behind the steps. In addition, Officer Seigafuse identified each of the males apprehended by his back-up officers.
A jury found Appellant guilty of the aforementioned offenses after an August 2015 trial. The trial court imposed the aforementioned sentence on October 30, 2015. Appellant filed a timely post-sentence motion. The trial court denied the post-sentence motion on November 24, 2015. This timely appeal followed.
Before we address the merits, we consider whether counsel's brief and petition to withdraw comply with these requirements of Anders and Santiago :
(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.
Counsel must also advise the defendant of his rights to "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court's attention in addition to the points raised by counsel in the Anders brief." Commonwealth v. Nischan , 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007). We have reviewed counsel's filings and found them in compliance with the foregoing. We will now consider the merits.
The Anders brief addresses the sufficiency of the evidence in support of Appellant's PWID and conspiracy convictions. In particular, the Anders brief addresses whether the Commonwealth proved that Appellant was in constructive possession of any controlled substances, and whether the Commonwealth proved that Appellant formed an agreement with another person to distribute controlled substances. These are the same issues Appellant raised in his Pa.R.A.P. 1925 concise statement of errors.
We review a challenge to the sufficiency of the evidence as follows:
When evaluating a sufficiency claim, our standard is whether, viewing all the evidence and reasonable inferences in the light most favorable to the Commonwealth, the factfinder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. This Court considers all the evidence admitted, without regard to any claim that some of the evidence was wrongly allowed. We do not weigh the evidence or make credibility determinations. Moreover, any doubts concerning a defendant's guilt were to be resolved by the factfinder unless the evidence was so weak and inconclusive that no probability of fact could be drawn from that evidence.Commonwealth v. Kane , 10 A.3d 327, 332 (Pa. Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011).
To sustain a conviction for PWID, "the Commonwealth must prove beyond a reasonable doubt only that, on a specific occasion, the defendant possessed a controlled substance he was not licensed to possess, and that he did so under circumstances demonstrating an intent to deliver that substance." Commonwealth v. Griffin , 804 A.2d 1, 15 (Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005). "Intent may be inferred from an examination of the facts and circumstances surrounding the case." Id.
Likewise, to sustain a conspiracy conviction, the Commonwealth must prove beyond a reasonable doubt the defendant: "(1) entered into an agreement to commit or aid in an a criminal act with another person or persons (2) with a shared criminal intent and that (3) an overt act was done in furtherance of the conspiracy." Commonwealth v. Bostick , 958 A.2d 543, 560 (Pa. Super. 2008), appeal denied, 987 A.2d 158 (Pa. 2009).
We have reviewed the Anders brief, the Commonwealth's brief, the record, and the trial court's opinion. Appellant did not file a response to counsel's petition to withdraw. We conclude the trial court's June 20, 2016 opinion thoroughly and accurately addresses the sufficiency of the evidence, and we adopt the trial court's analysis as our own. Our independent review of the record reveals no other issues of arguable merit. We therefore affirm the judgment of sentence and grant counsel's petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/13/2017
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