J-S31034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                                   :        PENNSYLVANIA
                                                   :
                v.                                 :
                                                   :
                                                   :
    GREGORY O. TUNSTALL                            :
                                                   :
                       Appellant                   :   No. 3821 EDA 2016

           Appeal from the Judgment of Sentence November 28, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002156-2016


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                                FILED NOVEMBER 21, 2018

        Appellant, Gregory Tunstall, appeals from the Judgment of Sentence

entered by the Philadelphia County Court of Common Pleas after the court

found him guilty of Possession of a Controlled Substance with Intent to Deliver

(“PWID”), Possession of a Controlled Substance, and Possession of a Small

Amount of Marijuana.1           He challenges the sufficiency of the evidence

underlying the PWID conviction.                Appellant’s counsel filed a Petition 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 Petition to Withdraw and affirm

Appellant’s Judgment of Sentence.




____________________________________________


1   35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(31), respectively.
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      We glean the facts from the certified record. On February 11, 2016,

Appellant was driving a rental vehicle with Anthony Davis as a passenger.

Patrolling Philadelphia Police Officers Jeffrey Opalski and Donald Ryder noticed

that Appellant’s rental vehicle had heavy front-end damage and stopped the

vehicle. N.T., 7/6/16, at 14.

      Upon approaching the vehicle, the officers smelled marijuana. When

they asked Appellant if there was any marijuana in the vehicle, Appellant

produced a baggie of marijuana and two glass jars of codeine syrup. The

officers arrested Appellant. In conducting a search incident to arrest, Officer

Opalski recovered 109 Ziploc packets, each containing a white, powdery

substance that was later confirmed to be heroin. The officers also recovered

five hundred dollars in cash from Appellant’s wallet. Id. at 15-16.

      On June 13, 2016, Appellant filed a Motion to Suppress the evidence.

After a hearing on July 6, 2016, the court denied the Motion. That same day,

Appellant proceeded to a bench trial at which the parties stipulated to the

items found in the vehicle and on Appellant’s person, as well as the lab report

identifying the substances.     Id. at 21.   Officer James Johnson, an expert

witness in drug packaging and dealing, also testified that the packaging and

concealment of the heroin was consistent with possessing heroin with the

intent to deliver it, as was the sum of cash Appellant carried and his use of a

rental vehicle. Id. at 66-70. The trial court subsequently found Appellant

guilty of all charges.




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      The trial court sentenced Appellant on August 31, 2016, to a term of

four to eight years’ incarceration for the PWID conviction and a consecutive

term of six to twelve months’ incarceration for Possession of a Controlled

Substance.     Upon reconsideration, the trial court merged Appellant’s

sentences for these two convictions and added five years’ reporting probation.

The court imposed no penalty for the marijuana conviction.

      Appellant filed a timely Notice of Appeal. On April 18, 2018, counsel

filed an Anders Brief and a Petition to Withdraw.      Appellant did not file a

response to counsel’s Anders Brief.

      In his Anders Brief, counsel raises one issue:

      Was the evidence sufficient to prove the defendant guilty beyond
      a reasonable doubt?

Anders Brief at ix.

      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 frivolous 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




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Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005); Santiago,

978 A.2d at 361 (detailing substantive requirements of an Anders Brief).

      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. Yorgey, 188 A.3d 1190,

1197 (Pa. Super. 2018) (en banc) (noting that Anders requires the reviewing

court to “review ‘the case’ as presented in the entire record with consideration

first of issues raised by counsel.”).

      Counsel in the instant appeal has complied with the above requirements.

We, thus review the issue raised in the Anders brief.

Sufficiency of the Evidence

      Although raised as a general sufficiency challenge in the Anders Brief,

Appellant’s counsel addresses the sufficiency of the evidence supporting

Appellant’s PWID conviction.

      This Court’s standard of review of the challenge to the sufficiency of

the evidence is well-settled:

      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 the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of


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      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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015).

      The Crimes Code has defined the offense of Possession of a Controlled

Substance With Intent to Deliver, in relevant part, as follows:

      (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, 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).

      To establish the offense of Possession of a Controlled Substance With

Intent to Deliver, 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 Appellant had the intent to deliver a controlled

substance, courts may consider several relevant factors, including “the


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manner in which the controlled substance was packaged, the behavior of the

defendant, the presence of drug paraphernalia, and large [] sums of cash[.]”

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007).               Expert

opinion testimony may also be admitted to establish “whether the facts

surrounding the possession of controlled substances are consistent with [the]

intent to deliver rather than with [the] intent to possess [them] for personal

use.” Id at 1238. “The expert testimony of a witness qualified in the field of

drug distribution, coupled with the presence of drug paraphernalia, is sufficient

to establish intent to deliver.” Commonwealth v. Carpenter, 955 A.2d 411,

414 (Pa. Super. 2008).

      In the instant case, the trial court concluded that the evidence was

sufficient to establish that Appellant illegally possessed heroin and had intent

to unlawfully deliver it.   Upon being searched after his lawful arrest, the

officers found 109 baggies of heroin on Appellant’s person, specifically in his

crotch area.   At trial, the parties stipulated to the items found during the

officers’ lawful search of Appellant’s person and vehicle. Significantly, Officer

Johnson, an expert in the field of drug packaging and distribution, testified

that the packaging and concealment of 109 individually wrapped baggies of

heroin is consistent with possessing heroin with the intent to deliver.

      We have reviewed the entire record and conclude that it supports the

court’s guilty verdicts.    We, thus, agree with counsel that the issue is

meritless.


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      Moreover, after conducting an independent review of the record as

required by Anders, we discern no non-frivolous issues to be raised on appeal.

We, therefore, grant counsel’s Petition to Withdraw and affirm Appellant’s

Judgment of Sentence.

      Petition to Withdraw granted. Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/18




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