J-S35035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    RICHARD FRANK SHAFFER                       :
                                                :
                      Appellant                 :    No. 1839 WDA 2016

           Appeal from the Judgment of Sentence November 3, 2016
               In the Court of Common Pleas of Indiana County
             Criminal Division at No(s): CP-32-CR-0001188-2015


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                                   FILED JUNE 06, 2017

        Appellant Richard Frank Shaffer appeals from the judgment of

sentence entered in the Court of Common Pleas of Indiana County on

November 3, 2016, following his jury trial convictions of possession with the

intent to deliver a controlled substance (heroin) and possession of a

controlled substance (heroin).1         Appellant’s counsel also has filed a brief

pursuant     to     Anders   v.   California,       386   U.S.   738   (1967)   and   its

Pennsylvania counterpart Commonwealth v. Santiago, 602 Pa. 159, 978

A.2d 349 (2009) (hereinafter “Anders Brief”) together with a petition to




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 Pa.C.S.A. §§ 780-113(a)(30) & (16), respectively.
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withdraw as counsel.2 Following our review, we grant counsel’s petition to

withdraw and affirm Appellant’s judgment of sentence.

       Appellant’s convictions arose following a controlled drug buy on April

28, 2014, at which time he sold heroin to a confidential informant (CI). The

trial court summarized the relevant facts pertaining to the encounter as

follows:


              At [Appellant’s] trial, the jury was presented with evidence
       of the circumstances of the controlled buy as well as the
       procedures employed by the Pennsylvania State Police. In this
       case, the CI contacted [Appellant] about purchasing heroin and
       the parties agreed to meet at a local Sheetz convenience store.
       The CI arrived as a passenger in an unmarked vehicle driven by
       Pennsylvania State Trooper Rebecca Fabich. [Appellant] entered
       the backseat of the vehicle and directed Trooper Fabich to drive
       to the Maple Street Apartments, an apartment complex located
       approximately one mile away. Upon arrival at the apartment
       complex, [Appellant] exited the vehicle and then returned
       approximately five minutes later. Once [Appellant] was back in
       the vehicle, he handed the CI ten stamp bags of heroin in
       exchange for $100.00.          Trooper Fabich was present in the
       vehicle with the CI throughout the entire transaction.
              During Trooper Fabich’s testimony, the jury also heard how
       both the CI’s person and the unmarked vehicle are searched at
       the Pennsylvania State Police barracks immediately before and
       after the buy. A Pennsylvania State Police forensic scientist then
       proceeded to explain how the stamp bags were analyzed and
       testified that all ten bags were positively identified as containing
       heroin.

Trial Court Opinion, filed January 24, 2017, at 1-2.
____________________________________________


2
   Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.



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        On November 2, 2016, Appellant was sentenced to two (2) years to

five (5) years’ incarceration for his PWID conviction, and he received no

further penalty for the possession of a controlled substance conviction as the

crimes merged for sentencing purposes.        Although Appellant did not file a

post-sentence motion, he filed a timely notice of appeal on November 23,

2016.    On November 29, 2016, the trial court directed Appellant to file a

concise statement of matters complained of on appeal. Appellant complied

and filed the same on December 16, 2016, wherein he challenged the weight

of the evidence presented at trial. The trial court filed its Rule 1925(a)

Opinion on January 24, 2017.

        On March 8, 2017, counsel filed her Anders Brief and Petition for

Leave to Withdraw as Counsel. Appellant has filed no further submissions

either pro se or through privately-retained counsel.       The Commonwealth

filed a brief with this Court on April 10, 2017.

        Prior to addressing the question raised on appeal, we must first

resolve counsel's petition to withdraw. Commonwealth v. Goodwin, 928

A.2d 287, 290 (Pa.Super. 2007) (en banc). See also Commonwealth v.

Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating

“[w]hen faced with a purported Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”). There are procedural and briefing requirements imposed upon




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an attorney who seeks to withdraw on appeal pursuant to which counsel

must:

        1) petition the court for leave to withdraw stating that, after
        making a conscientious examination of the record, counsel has
        determined that the appeal would be frivolous; 2) furnish a copy
        of the brief to the defendant; and 3) advise the defendant that
        he or she has the right to retain private counsel or raise
        additional arguments that the defendant deems worthy of the
        court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders brief 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, supra at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right 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) (citation omitted). Substantial compliance




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with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d

1287, 1290 (Pa.Super. 2007).

      Herein, counsel contemporaneously filed her Petition for Leave to

Withdraw as Counsel and Anders Brief. In her Petition, counsel states that

after a careful and conscientious examination of the record she has

determined that an appeal herein is wholly frivolous. See Petition for Leave

to Withdraw at ¶ 2. The Petition further explains that counsel notified

Appellant of the withdrawal request and forwarded a copy of the Anders

Brief to Appellant together with a letter explaining his right to proceed pro se

or with new, privately-retained counsel to raise any additional points or

arguments that Appellant believed had merit. See id. at ¶ 4; see also

attached Letter to Appellant. The notice letter indicates that a copy of the

Petition to Withdraw as Counsel and Anders Brief were served on Appellant

and correctly informs Appellant of his rights.

      In the Anders brief, counsel provides a detailed summary of the facts

and procedural history of the case with citations to the record, refers to

evidence of record that might arguably support the issue raised on appeal

challenging the weight of the evidence, provides citations to relevant case

law, and states her reasoning and conclusion that the appeal is wholly

frivolous. See Anders Brief at 4-10. Accordingly, counsel has complied with

all of the technical requirements of Anders and Santiago.         As Appellant

filed neither a pro se brief nor a counseled brief with new, privately-retained


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counsel, we proceed to examine the issue of arguable merit identified in the

Anders Brief.     Therein, counsel presents the following Statement of

Questions Involved:   “Was the verdict of guilty of Delivery of a Controlled

Substance-.29 grams of Heroin (F) and Possession of a Controlled

Substance- .29 grams of Heroin (M) against the weight of the evidence

presented by the Commonwealth at trial?” Anders Brief at 4.

      Before we reach the merits of Appellant’s claim, we must first

determine whether he has properly preserved it for our review. It is well-

established that a challenge to the weight of the evidence must first be

raised at the trial level (1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a

post-sentence motion. In re J.B., 630 Pa. 124, 160, 106 A.3d 76, 97

(2014). As noted in the comment to Pa.R.Crim.P. 607, the purpose of the

Rule is to clarify that a challenge to the weight of the evidence must be

raised with the trial judge or it will be waived, for appellate review of a

weight claim is limited to a review of the trial court’s discretion.      See

Pa.R.Crim.P. comment.

      Generally, a claim challenging the weight of the evidence cannot be

raised for the first time in a Pa.R.A.P. 1925(b) statement, and an appellant's

failure to avail himself of any of the prescribed methods for presenting a

weight of the evidence issue to the trial court constitutes waiver of that




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claim, even if the trial court responds to the claim in its Rule 1925(a)

opinion. Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013).

       Instantly, Appellant failed to challenge the weight of the evidence

before the trial court orally or in writing prior to sentencing or by written

motion after sentencing. See Pa.R.Crim.P. 607(A); Griffin, supra. Rather,

Appellant raised his weight claim for the first time in his Rule 1925(b)

statement. Thus, his challenge to the weight of the evidence on appeal is

waived. See Pa.R.Crim.P. 607; In re J.B., supra; Griffin, supra.

       Petition to withdraw as counsel granted.       Judgment of sentence

affirmed.3



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




____________________________________________


3
 This Court may affirm the trial court’s order on any valid basis. Plasticert,
Inc. v. Westfield Ins Co., 923 A.2d 489 (Pa.Super. 2007).



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