J-S33019-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                  Appellee              :
                                        :
             v.                         :
                                        :
MARVIN KENNEDY,                         :
                                        :
                  Appellant             : No. 411 EDA 2014

           Appeal from the Judgment of Sentence January 13, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0002282-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED JUNE 8, 2015

       Marvin Kennedy (“Kennedy”) appeals from the January 13, 2014

judgment of sentence entered by the Philadelphia County Court of Common

Pleas following his conviction of possession of a controlled substance with

intent to deliver (“PWID”).1 Counsel for Kennedy has filed an Anders2 brief

and a motion to withdraw, and Kennedy filed a pro se response thereto.

Upon review, we affirm and grant counsel’s request to withdraw.

       The trial court aptly summarized the testimony adduced at trial as

follows:

                At a waiver trial on November 6, 2013, Police
             Officer Kenneth Long of the Narcotics Strike Force
             testified that his tour of duty brought him to the


1
    35 P.S. § 780-113(a)(30).
2
   Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S33019-15


          2500     block   of   North     Colorado    Street   at
          approximately 10:30 [a.m.] on October 30, 2012.
          (N.T. Trial, 11/6/13, [at] 9, 10). Officer Long and his
          partner, Officer Myles, set up a plain-clothes
          surveillance for illegal sales of narcotics. ([Id. at]
          10). Officer Long testified that it had been raining on
          and off that day and that it was gray outside, but
          there was adequate light. ([Id. at] 15). Officer Long
          testified that through the rear of his unmarked
          vehicle, he observed [Kennedy] engaged in a
          conversation with an unknown male wearing a black
          quilted jacket. ([Id. at] 10, 15). The unknown male
          handed United States currency to [Kennedy]. ([Id.
          at] 10). Officer Long saw [Kennedy] reach into his
          waistband where he removed a clear plastic bag and
          removed items from the bag and engaged in a hand-
          to-hand transaction with the unknown male who
          then left the area. ([Id. at] 11). Officer Long then
          gave flash information about the unknown male to
          backup officers but he was not located in the area.
          ([Id. at] 11).

              Approximately five minutes later, Officer Long
          observed a male, later identified as Michael
          Woodson, approach the corner of Colorado and
          Cumberland where he engaged in a brief
          conversation with [Kennedy] and handed [Kennedy]
          United States currency in exchange for items. ([Id.
          at] 11). Again, Officer Long issued flash information
          to backup officers. ([Id. at] 11). Officer Paul Abfaza
          testified that he was in full uniform working as
          backup to Officer Long that day, and that based on
          flash information received from Officer Long, he
          stopped Mr. Woodson. ([Id. at] 19). Upon stopping
          Mr. Woodson, Officer Abfaza recovered four green
          plastic packets containing what was later identified
          as crack cocaine from the right front jacket pocket of
          Mr. Woodson. ([Id. at] 19-20).

             Officer Long continued to observe [Kennedy], and
          at approximately 10:50 a.m., a black female, later
          identified as Jacqueline Johnson, approached the
          comer of Colorado and Cumberland Streets ([Id. at]



                                   -2-
J-S33019-15


          12). Ms. Johnson had a brief conversation with
          [Kennedy] and handed him United States currency.
          ([Id. at] 12). [Kennedy] reached into his waistband
          and handed Ms. Johnson an item. ([Id. at] 12).
          Officer Long issued flash information for Ms.
          Johnson. ([Id. at] 12). Police Officer Wayne Taylor
          testified that he was on duty and served as backup
          to Officer Long’s surveillance on October 30, 2012.
          ([Id. at] 21). After receiving flash information from
          Officer Long, Officer Taylor came in contact with Ms.
          Johnson who was walking down Colorado Street
          toward Cumberland Street and then made a left tum
          on Cumberland. ([Id. at] 21, 22). Upon seeing
          Officers Taylor and Washington coming down the
          street, Ms. Johnson made a motion that indicated to
          the officers that she threw something in her mouth.
          ([Id. at] 22). Shortly after coming in contact with
          the officers, Ms. Johnson complained of having
          asthma and that she could not breathe. ([Id. at]
          22). Ms. Johnson then became unresponsive and the
          officers called rescue. ([Id. at] 22). While the rescue
          team worked on her, the officers remained with her
          in the medic transport vehicle and observed the
          rescue workers use forceps to remove a plastic
          sandwich bag that was resting on her larynx which
          was preventing her from breathing. ([Id. at] 23).
          Five green tinted plastic packets containing crack
          cocaine were turned over to the officers. ([Id. at]
          23).

             Officer Long testified that after he witnessed what
          he believed to be several narcotics transactions,
          [Kennedy] was stopped and arrested by Officer
          Mauricio Rodriguez. ([Id. at] 12). Officer Long
          testified that at arrest, he positively identified
          [Kennedy] as the individual he observed engaging in
          the hand-to-hand transactions. ([Id. at] 12). At the
          time of identification, he observed that [Kennedy]
          was still wearing a tan jacket and tan cargo pants,
          the same clothing he saw [Kennedy] wearing during
          the alleged transactions. ([Id. at] 15). He also
          testified that he never saw [Kennedy] leave prior to
          arrest. ([Id. at] 15). Officer Rodriguez prepared a



                                   -3-
J-S33019-15


            75-229 (Biographical Information Report) upon
            arrest and indicated that [Kennedy] was wearing a
            blue hooded sweatshirt, a green jacket, and a pair of
            green cargo pants ([Id. at] 28). Recovered from
            [Kennedy] was $190 in United States currency[FN]1.
            ([Id. at] 28). Officer Rodriguez testified that he was
            present when Officer Long positively identified
            [Kennedy] as the individual he observed that day
            ([Id. at] 30).

                [Kennedy] and the Commonwealth stipulated that
            if [Kennedy]’s wife, Michelle Pierce, was called to
            testify, she would have testified that she gave
            [Kennedy] $190 that day to buy candy and items for
            his family also related to Halloween coming up at the
            comer store, that they live together, that she gave
            him money that day, and that she is employed. ([Id.
            at] 31). The Commonwealth then recalled Officer
            Rodriguez to the stand and he testified that
            [Kennedy] provided all information on the 75-229
            and that [Kennedy] indicated his marital status as
            “single”. ([Id. at] 33). Finally, Officer Rodriguez
            testified that [Kennedy] also indicated on the 75-229
            that he resided with his aunt, Gwendolyn Kennedy.
            ([Id. at] 33).
            ______________________________
            [FN]1
                   $190 USC recovered in the form of two (2) $20
            bills, twelve (12) $10 bills, two (2) $5 bills, and
            twenty (20) $1 bills and was place on Property
            Receipt #3070176. [The notes of testimony from
            trial erroneously state that Officer Rodriguez testified
            that he recovered “$109” from Kennedy. Based on
            Officer Rodriguez’ specific testimony as to the
            denominations recovered from Kennedy, this was
            clearly a typographical error.]

Trial Court Opinion, 9/19/14, at 2-4 (footnote in the original).

      The trial court found Kennedy guilty of PWID and not guilty of

possession of a controlled substance. On January 13, 2014, the trial court

sentenced Kennedy to eighteen to thirty-six months of incarceration followed



                                     -4-
J-S33019-15


by three years of probation.       Kennedy did not file any post-sentence

motions, but filed a timely notice of appeal on February 3, 2014. Counsel

has filed an Anders brief and Kennedy filed a pro se response, raising issues

that he believes are non-frivolous and warrant relief.

      Before we address the merits of Kennedy’s appeal, we must discern

whether counsel has complied with Anders and Santiago:

               The request by appointed counsel to withdraw
            pursuant to Anders triggers specific requirements,
            certain of which apply to appointed counsel and
            others to the court to which appointed counsel
            makes his or her request for withdrawal. These
            requirements and the significant protection they
            provide to an Anders appellant arise because a
            criminal defendant has a constitutional right to a
            direct appeal and to counsel on that appeal.
            Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
            Super. 2007). This Court has summarized these
            requirements as follows:

                   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.

            Id. (citations omitted).



                                       -5-
J-S33019-15



              There are also requirements as to the precise
           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.

Commonwealth v. Flowers, __ A.3d __, 2015 WL 1612010, **1-2 (Pa.

Super. Apr. 10, 2015).

     Our review of counsel’s Anders brief and petition to withdraw confirms

that he complied with the foregoing requirements.      We therefore turn to

review the issue raised in counsel’s Anders brief, which Kennedy likewise

raises in his pro se response: “Where the Commonwealth’s evidence of an

alleged drug transaction was based on inconsistent and incredible testimony

from the police officer, constituting a misidentification of [Kennedy] as the

drug seller, was a guilty verdict based on such evidence speculative and

conjectural that cannot sustain the verdict?” Anders Brief at 3; see also

Pro Se Response at 3-4.




                                    -6-
J-S33019-15


      Both counsel and Kennedy frame this issue as a challenge to the

sufficiency of the evidence. Anders Brief at 10-11; Pro Se Response at 3.

The arguments presented in support of their claims solely address Officer

Long’s credibility, however, and is therefore a challenge to the weight of the

evidence to support Kennedy’s conviction, not its sufficiency. 3             See

Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (“An

argument regarding the credibility of a witness’[] testimony goes to the

weight of the evidence, not the sufficiency of the evidence.”).        It is well-

settled law that an appellant must preserve a challenge to the weight of the

evidence before the trial court either at sentencing or in a post-sentence

motion.   Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d

478, 490 (Pa. Super. 2014).       Kennedy failed to do so, and as such, this

argument is waived on appeal, rendering it frivolous.




3
   Specifically, Kennedy asserts in his pro se response that the trial court
should not have believed Officer Long’s testimony that he observed Kennedy
reach into his waistband, with “a lot of people in [the officer’s] line of sight,”
where Officer Long had only a profile view of the transactions. Pro Se
Response at 3. According to Kennedy, it was likewise not believable that
Officer Long could have seen these transactions on the day in question
because that was the day Hurricane Sandy struck, and Officer Long was
observing the transactions through the tinted rear window of his vehicle. Id.
at 4. He further states that Officer Long gave an inaccurate description of
Kennedy’s clothing and “never testified to [his] height, race, age, [or facial
hair,” but overlooks the fact that Officer Long identified Kennedy at the time
of his arrest and at trial. Id. at 5.


                                      -7-
J-S33019-15


      For purposes of completeness, we note that the Commonwealth

presented sufficient evidence to convict Kennedy of PWID. The Controlled

Substance, Drug, Device and Cosmetic Act defines PWID as follows:

            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)(30).       The evidence presented at trial, as recited

hereinabove, viewed in the light most favorable to the Commonwealth as

our standard of review requires, circumstantially proved that Kennedy was in

possession of the crack cocaine and distributed it to Mr. Woodson and Ms.

Johnson.4

      Kennedy further baldly states, without any supporting argument, that

the police lacked probable cause to arrest him. Pro Se Response at 5. The



4
    Appellate review of a challenge to the sufficiency of the evidence is de
novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur
scope of review is limited to considering the evidence of record, and all
reasonable inferences arising therefrom, viewed in the light most favorable
to the Commonwealth as the verdict winner.”            Id. at 420-21.      “The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence.” Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014)
(citation and quotation omitted). “Further, we note that the entire trial
record is evaluated and all evidence received against the defendant is
considered, being cognizant that the trier of fact is free to believe all, part,
or none of the evidence.” Id. It is for the finder of fact to pass upon the
credibility of the witnesses and weight of the evidence presented. Melvin,
103 A.3d at 40.


                                     -8-
J-S33019-15


failure to develop any argument in support of this assertion renders the

claim unreviewable.    Commonwealth v. Veon, 109 A.3d 754, 774 (Pa.

Super. 2015); see also Commonwealth v. Samuel, 102 A.3d 1001, 1005

(Pa. Super. 2014) (“this Court will not become counsel for an appellant and

develop arguments on an appellant’s behalf”).       Nonetheless, as the trial

court found that Officer Long credibly testified that he observed Kennedy

engage in drug transactions, we conclude that the police had ample probable

cause to arrest Kennedy. The argument is frivolous.

      Kennedy also appears to challenge the trial court’s failure to decide pro

se pretrial motions he filed while represented by counsel.5 Pro Se Response

at 4. Our Supreme Court has made clear that a criminal defendant does not

have the “right to hybrid representation either at trial or on appeal.”

Commonwealth v. Ellis, 534 Pa. 176, 180, 626 A.2d 1137, 1139 (1993);

see also Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044

(2011) (reaffirming its holding in Ellis and stating that “the proper response

to any pro se pleading is to refer the pleading to counsel, and to take no

further action on the pro se pleading unless counsel forwards a motion”). As

such, Kennedy’s claim that trial court erred by failing to rule on his pro se

motions that he filed while represented by counsel is frivolous.



5
  The record reflects that Kennedy, pro se, filed a petition for writ of habeas
corpus, suppression motion, a motion to dismiss the charges against him,
motion for discovery and a motion to quash. The trial court did not rule on
any of his pro se motions.


                                     -9-
J-S33019-15


     Lastly, Kennedy assails counsel’s representation of him in this matter.

Pro Se Response at 1. Our Supreme Court has made clear, however, that

absent certain circumstances not present in the case at bar, we are unable

to review claims of ineffective assistance of counsel on direct appeal.

Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013).

     The issues raised by counsel in his Anders brief and Kennedy in his

pro se response are frivolous. We have conducted an independent review of

the record and have found no additional, non-frivolous issues that counsel

could have raised on Kennedy’s behalf. As such, we affirm the judgment of

sentence and grant counsel’s motion to withdraw.

     Judgment of sentence affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2015




                                  - 10 -
