J-S80027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

HAROLD A. BENNINGER

                            Appellant                No. 605 MDA 2016


            Appeal from the Judgment of Sentence March 23, 2016
              In the Court of Common Pleas of Columbia County
              Criminal Division at No: CP-19-CR-0001066-2014


BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.:                       FILED JANUARY 13, 2017

        Appellant, Harold A. Benninger, appeals from the March 23, 2016

judgment of sentence entered in the Court of Common Pleas of Columbia

County (“trial court”) following his conviction of     possession of certain

chemicals with intent to manufacture a controlled substance (liquefied

ammonia gas; precursors and chemicals) (“PWID”).1 In the brief filed by his

counsel in accordance with Anders v. California, 386 U.S. 738 (1969),

Appellant identifies two evidentiary issues counsel deems meritless.      His

counsel concurrently filed a petition for leave to withdraw. Following review,

we grant counsel’s petition for leave to withdraw and affirm Appellant’s

judgment of sentence.

____________________________________________


1
    35 P.S. § 780-113.1(a)(3).
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       Following a jury trial on January 26, 2016, Appellant was convicted of

one count of PWID. On March 23, 2016, the trial court sentenced Appellant

to 13-30 months at a state correctional institute with credit for time served

as well as making Appellant RRRI eligible.       Appellant filed a timely post-

sentence motion seeking reconsideration of his sentence on April 1, 2016.

Appellant wished to serve his sentence at Columbia County Jail rather than

at a state correctional institute. The trial court denied Appellant’s motion on

April 6, 2016.

       Appellant filed a pro se motion on April 14, 2016, seeking an appeal.

On the same date, Appellant’s counsel filed a notice of appeal.       The trial

court directed Appellant to comply with Pa.R.A.P. 1925(b), and Appellant

filed his concise statement on May 10, 2016.        In his statement, counsel

indicated that he would be filing an Anders brief. The trial court entered an

opinion on June 8, 2016.

       Appellant’s counsel filed, in this Court, a petition to withdraw as

counsel and an Anders brief, wherein counsel raises one issue2 for our

review:

       I.     Whether the [Appellant’s] appeal of his judgment of sentence
              frivolous, thereby authorizing present counsel to withdraw.




____________________________________________


2
 In his Anders Brief counsel discusses the merits of two evidentiary issues
which he deems frivolous.



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Anders Brief at 4.   Appellate counsel filed his Anders brief on August 2,

2016, along with an application to withdraw as counsel. This Court issued

an order the same date, directing Appellate counsel to comply with the letter

of rights pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.

Super. 2005).   On August 8, 2016, Appellate counsel filed a copy of the

letter sent to Appellant regarding the Anders brief. Appellant did not file a

reply to the Anders brief.

      Before this Court can review the merits of the underlying issues, we

must first address counsel’s petition to withdraw.       Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).          In order for

court-appointed counsel to withdraw, 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) file a brief
      referring to anything that arguably might support the appeal but
      which does not resemble a “no-merit” letter or amicus curiae
      brief; and (3) furnish a copy of the brief to the defendant and
      advise the defendant of his or her right to retain new counsel or
      raise any additional points that he or she deems worthy of the
      court’s attention.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).

      Upon review, we conclude counsel has satisfied the procedural

requirements set forth in Anders.        In the brief, counsel explains his

conclusion that the issues sought to be raised by Appellant are wholly

frivolous. After this Court’s August 2, 2016 order, counsel sent a copy of the



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Anders brief to Appellant.   Counsel’s letter, a copy of which was filed on

August 8, 2016, advised Appellant of his right to retain new counsel or act

on his own behalf.

      Next, this Court must first address whether counsel’s Anders brief

satisfies the following substantive requirements:

      (1)   provide a summary of the procedural history and facts,
            with citations to the record;
      (2)   refer to anything in the record 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 Anders brief, counsel has included a statement of the case that

includes a procedural history of the case. Anders Brief at 5-6. Counsel has

complied with the first requirement.

      The second required element of an Anders brief is reference to

anything in the record that counsel believes arguably supports the appeal.

See Santiago, 978 A.2d at 361.          Here, counsel raises two evidentiary

questions: whether the trial court erred in allowing Agent Kirk Schwartz to

give opinion testimony, and whether the trial court erred in allowing Officer

Brandon Schultz to use a demonstrative. Anders Brief at 8-13. Counsel,

therefore, has satisfied the second Anders requirement.




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     The third element of Anders requires counsel to state his conclusion

that the appeal is frivolous, which counsel complied with in his brief. Id. at

9-10, 12-13. The final element of Anders requires counsel to provide his

reasons for concluding that the appeal is frivolous. Santiago, 978 A.2d at

361. Counsel complied with this requirement and satisfied the final prong of

the Anders test. Anders Brief at 8-13.

     We find counsel has satisfied the requirements for a petition to

withdraw. He complied with the briefing requirements, as explained above.

Appellant was advised of his right to retain substitute counsel or to proceed

pro se to bring any attention points to this Court's attention. Thus, we must

next address the merits.

     Appellant’s two issues relate to whether the trial court improperly

admitted evidence. Whether the trial court erred in allowing Agent Schwartz

to give opinion testimony, and whether the trial court erred in allowing

Officer Schultz to use demonstrative evidence.

                   A trial court has broad discretion to determine
            whether evidence is admissible and a trial court’s ruling on
            an evidentiary issue will be reversed only if the court
            abused its discretion.      Accordingly, a ruling admitting
            evidence “will not be disturbed on appeal unless that ruling
            reflects   manifest     unreasonableness,    or   partiality,
            prejudice, bias, or ill-will, or such lack of support to be
            clearly erroneous.”

Commonwealth v. Huggins, 68 A.3d 962, 966(Pa. Super. 2013) (citations

omitted).

     The Pennsylvania Rules of Evidence provide that


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             [i]f a witness is not testifying as an expert, testimony in
             the form of an opinion is limited to one that is:

                  (a) rationally based on the witness’s perception;

                  (b) helpful to clearly understanding the witness’s
                  testimony or to determining a fact in issue; and

                  (c) not based on scientific, technical, or other
                  specialized knowledge within the scope of Rule 702.

Pa.R.E. 701. During Agent Schwartz’s testimony, trial counsel objected to

the following questioning.

             Commonwealth: In your experience with regard to the
             other    components     for    manufacturing     one-pot
             methamphetamine, what is your experience with regard to
             the locations or the traveling about to get various
             components rather than to buy them in one place?

             Agent Schwartz:     Well, they do travel to numerous
             locations because some of the retail facilities in the area
             had become ---

N.T. Jury Trial, 1/26/2016, at 55.    At this point Appellant objected to the

line of questioning. Following the trial court overruling Appellant’s objection,

Agent Schwartz testified that “[t]hey do travel to different locations . . .

Some of the retailers have become knowledgeable if somebody were to buy

sulfuric acid it and lie, and all the components in one know[n] location, they

do contact us and notify us.    People have become cognizant of that fact.”

Id. at 56.

      Agent Schwartz had previously testified to his experience regarding

methamphetamine manufacturing, as well as his surveillance of Appellant on

November 21, 2014, from Berwick, Pennsylvania to a Gould’s Grocery Store



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in Conygham Valley, and then to a Wal-Mart in Hazleton Township. Id. at

38-40, 42-44.      The ruling does not reflect manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support to be clearly

erroneous. Therefore, the trial court did not abuse its discretion in finding

that the testimony was rationally based on Agent Schwartz’s perception,

helpful to understanding his testimony or determining a fact in issue, and

was not based on scientific, technical, or other specialized knowledge. We

agree with trial counsel that this issue is meritless.

      Appellant’s second assertion is that the trial court abused its discretion

in allowing Officer Schultz to use a demonstrative during his testimony.

Demonstrative evidence is “tendered for the purpose of rendering other

evidence more comprehensible to the trier of fact.”              Commonwealth v.

Serge, 896 A.2d 1170, 1177 (Pa. 2006) (citation and quotation marks

omitted).    Demonstrative evidence is admissible as long as the relevance

outweighs any potential prejudicial effect.         Id.   “Evidence is relevant if it

logically tends to establish a material fact in the case, tends to make a fact

at issue more or less probable or supports a reasonable inference or

presumption regarding a material fact.”        Commonwealth v. Drumheller,

808 A.2d 893, 904 (Pa. 2002).          Furthermore, relevant evidence may be

excluded “if its probative value is outweighed by the danger of unfair

prejudice,   confusion   of    the   issues,   or   misleading    the   jury,   or   by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”         Pa.R.E. 403.     “Demonstrative evidence such as

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photographs, motion pictures, diagrams, and models have long been

permitted to be entered into evidence provided that the demonstrative

evidence fairly and accurately represents that which it purports to depict.”

Serge, 896 A.2d at 1177 (citation omitted).

      In the matter sub judice, the trial court permitted Officer Schultz to

use physical products and models of methamphetamine precursors as

demonstrative evidence over the Appellant’s objection.        In making such

ruling, the trial court found the evidence “is probative for them to analyze

how the evidence in this case, that the Commonwealth is still producing,

relates to the actual process of manufacturing methamphetamine.”          N.T.

Jury Trial, 1/26/2016, at 61. Officer Schultz further testified about the items

that were seized from the Appellant on November 21, 2014, and compared

them to the demonstrative evidence. Id. at 70-72, 77-82. Additionally, on

cross examination, it was made clear that the models and products shown

by Officer Schultz were not the items seized from Appellant. Id. at 83, 88-

89.   Appellant was charged with PWID and the demonstrative evidence

rendered other evidence more comprehensible to the jury, and was not more

prejudicial than probative.    Therefore, the trial court did not abuse its

discretion in permitting Officer Schultz to use the demonstrative evidence.

Appellant’s argument fails.

      As reflected above, we have determined that counsel has satisfied the

technical requirements of Anders and Santiago. After determining that the

technical requirements are satisfied, it is generally incumbent upon this

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Court to “conduct an independent review of the record to discern if there are

any    additional,   non-frivolous    issues   overlooked    by    counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(citations and footnote omitted). Based upon our review, we find the claims

raised by counsel in the Anders brief are frivolous. We have conducted an

independent review of the record and addressed Appellant’s arguments

properly before us on direct appeal. We agree with counsel that the issues

Appellant seeks to litigate in this appeal are wholly frivolous. Also, we do

not discern any non-frivolous issues that Appellant could have raised. We,

therefore, grant counsel’s petition to withdraw and affirm the judgment of

sentence.

      Counsel’s petition to withdraw granted.       Judgment of sentence

affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2017




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