J-S06021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EUGENE MARVIN HARRIS                       :
                                               :
                       Appellant               :    No. 1127 EDA 2018

              Appeal from the Judgment of Sentence April 9, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0002658-2017


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                     FILED JULY 03, 2019

       Appellant, Eugene Marvin Harris, appeals from the April 9, 2018

Judgment of Sentence entered by the Delaware County Court of Common

Pleas after a jury convicted Appellant of Possession with Intent to Deliver

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

Paraphernalia.1      Appellant's counsel filed a Motion to Withdraw as Appellate

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 affirm Appellant’s Judgment of Sentence and grant appellate

counsel’s Motion to Withdraw as Appellate Counsel.



____________________________________________


1  35 P.S. §§        780-113(a)(30),       780-113(a)(16),      and    780-113(a)(32),
respectively.
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     The relevant factual and procedural history is as follows. On March 20,

2017, Detective John Montgomery from the Upper Chichester Police

Department responded to an apartment at 4498 Bethel Road, Boothwyn,

Pennsylvania, for a report of a drug overdose.       Upon arrival, Detective

Montgomery, who has a law enforcement tenure of 26 years including 10 years

as a member of the Delaware County Drug Task Force, observed emergency

medical personnel treating an unidentified male experiencing a heroin

overdose. While on the scene, Detective Montgomery spoke to the woman

who reported the drug overdose (“Reporter”) and learned she was the mother

of the overdose victim’s girlfriend. Reporter informed Detective Montgomery

that her daughter and the overdose victim were heroin addicts; her daughter

was currently in inpatient rehab; and she came to the overdose victim’s

apartment to take him to rehab. Reporter gave Detective Montgomery the

overdose victim’s cell phone and advised him that a black male in his mid-30’s

known as “Philly Guy” supplied the heroin to the overdose victim and always

delivered it to the overdose victim’s apartment. Detective Montgomery also

recovered white glassine baggies and drug paraphernalia from the scene.

     The next day, on March 22, 2017, Detective Montgomery learned that

the overdose victim died.

     On March 23, 2017, Detective Montgomery used the decedent’s cell

phone to contact Appellant and arranged to buy a bundle of heroin for $80.

Detective Montgomery organized a team of law enforcement personnel to be

present at and around 4498 Bethel Road during the arranged heroin buy.

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      Upon learning from a text message to the decedent’s cell phone that the

heroin dealer would be arriving in 15 minutes, Detective Montgomery

instructed Officer Matthew Jackson, a 14-year veteran of the police force and

1-year member of the Drug Task Force, to position his unmarked, undercover

vehicle in the driveway at 4498 Bethel Road. Detective Montgomery deployed

three additional unmarked, undercover police vehicles and two marked police

vehicles to nearby locations to serve as backup.

      While positioned in the driveway, Officer Jackson held the decedent’s

cellphone for purposes of continuing communications.          Officer Jackson

received a text message on the decedent’s cellphone that the heroin dealer

was 3 minutes away. Approximately 3 minutes later, Officer Jackson observed

a blue vehicle driven by Derrick Gandy, Appellant’s co-defendant, pull into the

driveway. Appellant was on the passenger side of the vehicle. The decedent’s

cellphone rang showing a call from the same number used to arrange the

heroin buy. Officer Jackson pulled in front of the vehicle and, because he was

operating a pickup truck with a raised vantage point, Officer Jackson observed

Appellant holding and attempting to discard what Officer Jackson recognized

as bagged heroin. Officer Jackson radioed for backup and approached the car

with his gun drawn.

      When removing Appellant from the car, Officer Jackson observed what

he recognized as a bag of heroin hanging from Appellant’s pants. The police

secured Appellant with handcuffs and proceeded to search Appellant.        The

police recovered 2 cellphones and $282.       The police then searched the

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vehicle’s front passenger area and recovered 13 bags of heroin. When Officer

Jackson called the phone number that Detective Montgomery had used to

arrange the heroin buy, one of the cellphones recovered from Appellant’s

person rang.      The District Attorney subsequently charged Appellant with

PWID, Possession of a Controlled Substance, Possession of Paraphernalia,

Criminal Use of a Communication Facility, and three counts of Conspiracy.

       On August 7, 2017, Appellant filed an Omnibus Motion for Pre-Trial

Relief, including, inter alia, a Motion to Suppress Physical Evidence for Lack of

Probable Cause and a Motion to Suppress Fruits of Unlawful Arrest.

       On October 12, 2017, the suppression court held a hearing on

Appellant’s Motions to Suppress. The court heard testimony from Detective

Montgomery and Officer Jackson, who testified to the above facts. On October

19, 2017, the suppression court denied Appellant’s Motions to Suppress.

       On January 18, 2018, a jury convicted Appellant of PWID, Possession of

a Controlled Substance, and Possession of Paraphernalia. On March 8, 2018,

the trial court sentenced Appellant to an aggregate term of 39-78 months’

incarceration followed by 36 months of probation.         Appellant did not file a

Post-Sentence Motion.

       Appellant filed a timely pro se Notice of Appeal. The trial court appointed

James Brose, Esq., to represent Appellant on appeal.2           On September 12,

____________________________________________


2 The trial court initially directed Appellant’s counsel of record, Keith F. Garrity,
to file a 1925(b) Statement of Matters Complained of on Appeal. Attorney



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2018, Attorney Brose filed a Statement of Intent to File an Anders Brief in

Lieu of 1925(b) Statement of Matters Complained of on Appeal. See Pa.R.A.P.

1925(c)(4). In response, the trial court issued a Pa.R.A.P. 1925(a) Opinion

stating that in light of appellate counsel’s Statement of Intent to File an

Anders Brief, “further exposition regarding Appellant’s conviction and the

sentence imposed is unnecessary.” Trial Ct. Op., filed 9/27/18, at 3.

       In this Court, counsel has filed an Anders Brief raising a challenge to

the suppression court’s denial of Appellant’s Motion to Suppress Physical

Evidence for Lack of Probable Cause and the admission of evidence of screen

shots of text messages sent from the decedent’s cellphone. Anders Br. at 4,

6. In addition, counsel has filed a Motion to Withdraw as Appellate Counsel.

       Appellant filed a pro se Objection in Response to Counsel’s Anders Brief,

likewise challenging the denial of Appellant’s Motion to Suppress and the

admission of screen shots of text messages, claiming that the police tampered

with the evidence in violation of his right to due process. Appellant’s Response

at 2-7 (unpaginated). Appellant also asserts that his conviction is against the

weight of the evidence, arguing that the evidence and testimony contained

inconsistencies. Id. at 4 (unpaginated).

____________________________________________


Garrity failed to file a docketing statement with Superior Court as well as a
1925(b) Statement or a Motion to Withdraw as Counsel. On May 25, 2018,
this Court issued an Order that directed the trial court to hold a hearing to
determine if counsel had abandoned Appellant and, if so, if Appellant was
entitled to court-appointed counsel. On July 24, 2018, after a hearing, the
trial court issued an order appointing James Brose, Esq., to represent
Appellant on appeal.

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     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;

     (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.

     In the instant case, counsel has complied with all of the requirements

of Anders as articulated in Santiago. Additionally, counsel confirms that he

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

his Motion to Withdraw.    See Motion to Withdraw, Ex. A, (Letter, dated

November 8, 2018).



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      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.

Motion to Suppress

      Appellate counsel, in his Anders Brief, and Appellant, in his pro se

Response, both challenge the suppression court’s denial of Appellant’s Motion

to Suppress Physical Evidence for Lack of Probable Cause. Anders Br. at 4;

Appellant’s Response at 2-7 (unpaginated). Appellant argues that the police

arrested him without probable cause and, therefore, any evidence seized

thereafter was seized illegally. Id. This claim is frivolous.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth's burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant's

rights.”   Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012)

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(citing Pa.R.Crim.P. 581(H)).    When we review the denial of a Motion to

Suppress, “we are limited to considering only the Commonwealth’s evidence

and so much of the evidence for the defense as remains uncontradicted when

read in the context of the record as a whole.” Commonwealth v. Yorgey,

188 A.3d 1190, 1198 (Pa. Super. 2018) (en banc) (citation and internal

quotation marks omitted). When the testimony and other evidence support

the trial court's findings of fact, this Court is bound by them and we “may

reverse only if the court erred in reaching its legal conclusions based upon the

facts.” Id. at 1198 (citation omitted). “Moreover, it is within the lower court's

province to pass on the credibility of witnesses and determine the weight to

be given to their testimony.” Commonwealth v. McCoy, 154 A.3d 813, 816

(Pa. Super. 2017). This Court will not disturb a suppression court's credibility

determination absent a clear and manifest error.           Commonwealth v.

Camacho, 625 A.2d 1242, 1245 (Pa. Super. 1993).

      To be constitutionally valid, a warrantless arrest must be supported by

probable cause. Commonwealth v. Evans, 685 A.2d 535, 537 (Pa. 1996).

Probable cause exists when the facts and circumstances within a police

officer’s knowledge are sufficient to warrant a person of reasonable caution in

the belief that a suspect has committed or is committing a crime. Id. “The

question we ask is not whether the officer's belief was correct or more likely

true than false. Rather, we require only a probability, and not a prima facie

showing, of criminal activity. In determining whether probable cause exists,

we apply a totality of the circumstances test.”           Commonwealth v.

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Thompson, 985 A.2d 928, 931 (Pa. 2009) (emphasis in original; internal

citations and quotation marks omitted).

      “It is well established that a warrantless search incident to a lawful

arrest is reasonable, and no justification other than that required for the

arrest itself is necessary to conduct such a search.” Commonwealth v.

Ingram, 814 A.2d 264, 272 (Pa. Super. 2002) (emphasis in original).

“Consequently, any evidence seized as a result of a search incident to a lawful

arrest is admissible in later proceedings.” Id.

      Finally, our Supreme Court has held that “[t]he prerequisite for a

warrantless search of     a   motor     vehicle    is probable cause to search[.]”

Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014). A warrantless search

of a vehicle is justified if a police officer has probable cause to believe a vehicle

contains contraband. Commonwealth v. Runyan, 160 A.3d 831, 838 (Pa.

Super. 2017).

      The suppression court found Detective Montgomery’s and Officer

Jackson’s testimony to be credible. In particular, the suppression court found

that the police relied on information from Reporter and, as a result, arranged

a heroin buy at the decedent’s home using the decedent’s phone; a blue

vehicle arrived at the scene at the exact time the heroin dealer stated he

would arrive in a text; and the police observed Appellant on the passenger

side of the vehicle holding and attempting to discard what Officer Jackson

believed to be bagged heroin. Order, 10/19/17, at 1 n. 4. Based on these

findings, which the record supports, the suppression court concluded that the

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police had probable cause to arrest Appellant, and the police seized the

evidence from Appellant’s person incident to the arrest. Id. Moreover, the

suppression court concluded, based on the totality of the circumstances, that

the police had probable cause to search the vehicle’s front passenger area for

contraband. Id.

      Looking at the totality of the circumstances and these facts, we agree

with the suppression court that the police had probable cause to arrest

Appellant, or sufficient facts and circumstances for a reasonably cautious

person to believe that Appellant had committed and was in the process of

committing a crime. See Evans, 685 A.2d at 537. Because the police had

probable cause to arrest Appellant, the police’s seizure of any evidence

incident to the arrest was legal. Thus, the cellphones and heroin the police

seized from Appellant’s person when the police arrested Appellant was a

proper search incident to arrest. See Ingram, 814 A.2d at 272.

      Further, based on the totality of the circumstances, including Officer

Jackson’s observation of Appellant on the passenger side of the vehicle

attempting to discard what he believed to be bagged heroin, we agree with

the suppression court that the police had probable cause believe that the

vehicle contained contraband.    Accordingly, the warrantless search of the

vehicle was justified. See Gary, 91 A.3d at 138; Runyan, 160 A.3d at 838.

      We discern no error in the suppression court’s denial of Appellant’s

Motion to Suppress, and find that Appellant’s issue lacks merit in light of our

standard of review.

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Admission of Screen Shots of Text Messages into Evidence

       We next address the challenge to the admission of screen shots of text

messages into evidence, raised by Appellate counsel in his Anders brief and

Appellant in his Response. Anders Brief at 6; Appellant’s Response at 2-7

(unpaginated). In his Response, Appellant claims that the police tampered

with the evidence in violation of his right to due process. Appellant’s Response

at 2-7 (unpaginated).     Our review of the record reveals that Appellant’s

counsel failed to object to testimony regarding the screen shots, or to their

admission into evidence.       See N.T. Trial, 1/30/18, at 132-162, 168.

Accordingly, Appellant failed to preserve this issue for appellate review, and

we are constrained to find the issue waived. See Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal”); Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa. Super.

2006) (explaining that a defendant must make a timely and specific objection

at trial or face waiver of the issue on appeal).

Weight of the Evidence

      Finally, in his pro se Response, Appellant asserts that the evidence and

testimony that the Commonwealth presented at trial contained inconsistencies

and deception. Id. at 4 (unpaginated). This is essentially a challenge to the

weight of the evidence.

      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

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to Pa.R.Crim.P. 607(A) or it will be waived. See Commonwealth v. Kinney,

157 A.3d 968, 972 (Pa. Super. 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, we find that the challenge to the suppression court’s denial of

Appellant’s Motion to Suppress lacks merit in light of our standard of review.

Moreover, Appellant has waived his challenges to the weight of the evidence

and the admission of the screen shots into 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 Motion to Withdraw as Appellate

Counsel.

      Judgment of Sentence affirmed.         Motion to Withdraw as Appellate

Counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/3/19

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