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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
DUSTIN L. STARK,                        :            No. 48 WDA 2017
                                        :
                         Appellant      :


          Appeal from the Judgment of Sentence, September 8, 2016,
                  in the Court of Common Pleas of Elk County
              Criminal Division at No. CP-24-CR-0000351-2015


BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 22, 2017

        Dustin L. Stark appeals from the September 8, 2016 judgment of

sentence after his conviction for the offense of persons not to possess, use,

manufacture, control, sell, or transfer firearms.1    The Court of Common

Pleas of Elk County sentenced him to a term of 30 to 60 months’

incarceration.   George N. Daghir (“Attorney Daghir”), appellant’s counsel,

has filed a petition to withdraw, alleging that the appeal is frivolous,

accompanied by an Anders brief.2 We grant counsel’s withdrawal petition

and affirm the judgment of sentence.




1
    18 Pa.C.S.A. § 6105(a)(1).
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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        The record reflects that between September 25, 2015 and October 16,

2015,    appellant    traded   a   firearm   that   belonged   to   his   stepfather,

Michael Feldbauer (“Mr. Feldbauer”), to a friend of his, Anthony Rossino

(“Rossino”), in exchange for some electronic devices. On January 28, 2016,

appellant moved to suppress his written confession on the basis that when

he confessed he was under the influence of unknown controlled substances

such that his confession was not voluntarily, knowingly, and intelligently

made.     After a hearing on April 13, 2016, the trial court, by order and

opinion entered April 21, 2016, denied the motion. The trial court made the

following relevant findings of fact:

             1.      In the course of conducting an investigation
                     into the alleged theft of a firearm, Officer John
                     Gangloff of the Ridgway Borough Police
                     Department, an officer with 26 years total
                     experience including 18 years with the
                     Borough of Ridgway, identified [appellant] as a
                     suspect.

             2.      Officer Gangloff asked [appellant] to meet with
                     him at the Ridgway Borough Police Department
                     and [appellant] agreed, arriving in the early
                     evening hours of October 15, 2015, with his
                     mother, Kathy Feldbauer, and [Mr. Feldbauer],
                     who was the alleged victim of the firearm
                     theft.

             3.      After approximately 30 minutes of questioning
                     [appellant], Officer Gangloff requested that
                     [appellant] provide a voluntary written
                     statement and presented [appellant] with the
                     standard statement form utilized by the
                     Ridgway Police Department (Commonwealth
                     Exhibit 1).



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          4.   Officer Gangloff read the preprinted portion of
               the voluntary statement form to [appellant],
               including what constituted Miranda [v.
               Arizona, 384 U.S. 436 (1966)] warnings.
               Officer Gangloff also included his name and
               badge number on the form and ultimately
               signed the voluntary statement at the end as
               the person who took the statement.

          5.   [Appellant] otherwise completed the voluntary
               statement, including the insertion of the date
               the statement was taken of October 21, 2015,
               the time of the statement, 6:41 p.m., and the
               place where the statement was taken. He then
               completed an eleven-line narrative in his own
               handwriting which related to the firearm
               investigation, including items received by him
               in the trade of a firearm to [Rossino].

          6.   While [appellant] was providing the written
               statement, his mother and stepfather were
               with him. After being present at the police
               station for approximately 45 minutes to an
               hour, Officer Gangloff took [appellant] to
               [appellant’s] residence at 252 Euclid Avenue in
               Ridgway in order to allow [appellant] to
               retrieve the items that he had received from
               the trade of the firearm.

          7.   [Appellant] went into his house and a short
               time later provided Officer Gangloff with an
               i-Phone 5, a pink tablet and a blue Straight
               Talk phone, all of which had been identified
               with specific particularity in [appellant’s]
               written statement.

          8.   At no time during Officer Gangloff’s interaction
               with [appellant] on October 21, 2015, did
               [appellant] indicate that he was under the
               influence of any alcohol or controlled or
               counterfeit substance nor did he indicate that
               he was impaired in any way. Furthermore, he
               did not reference having taken any prescription



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                medications prior    to   his   interaction   with
                Officer Gangloff.

          9.    By virtue of his extensive experience as a
                police officer, Officer Gangloff has had many
                interactions with individuals who have been
                under the influence and detected none of the
                objective indicators in [appellant’s] demeanor
                or physical manifestations. [Appellant] did not
                have bloodshot or glassy eyes, he presented
                no slurred or incoherent speech, his actions
                were not sluggish, and Officer Gangloff
                detected no odor of any alcoholic beverage. To
                the contrary, [appellant] properly answered all
                of Officer Gangloff’s questions and provided a
                legible and coherent written statement.

          10.   Another indicator of [appellant’s] capacity on
                October 21, 2015, is that he had the ability to
                describe in detail the items received from
                [Rossino] and then located those items in a
                short period of time at his residence, following
                which he delivered them to Officer Gangloff.

          11.   [Appellant’s] testimony regarding his condition
                on October 21, 2015, was not credible,
                including his recitation that he did not recall
                being at the Ridgway Borough Police
                Department whatsoever, that he did not
                recognize his voluntary written statement of
                October 21, 2015, admitted as Commonwealth
                Exhibit 1, and did not recall having written the
                statement.

          12.   [Appellant’s] contention that his capacity was
                impaired by virtue of his having sometime in
                the afternoon of October 21, 2015, two Busch
                Lite beers, a 5 mg Xanax, and some
                completely unknown and speculative substance
                ingested through a Vape-pen or pipe, which
                purportedly resulted in his becoming physically
                ill was not supported by any competent or
                corroborated evidence and is entirely infirm as
                an attempt to demonstrate that he did not


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                   have the capacity to have provided a knowing
                   and voluntary statement to Officer Gangloff.

             13.   At all times relevant hereto, [appellant] had
                   sufficient capacity and the written statement
                   presented to Officer Gangloff was made
                   knowingly, voluntarily, and intelligently by
                   [appellant].

Findings, Memorandum of Law, and Conclusions of Law, 4/21/16 at 1-3.

       At trial, the parties stipulated that appellant was a person not allowed

to possess firearms. Rossino testified regarding the trade he made for the

firearm.   Officer John Gangloff (“Officer Gangloff”) of the Ridgway Police

Department testified regarding his investigation, his contact with appellant,

and appellant’s statement which was admitted into evidence.         Appellant’s

mother, Kathy Feldbauer (“Feldbauer”), testified on appellant’s behalf that

he intended to trade a bicycle for the electronic items, but Officer Gangloff

told him that Rossino had provided a statement that appellant traded a gun

for the items so appellant should just go along with that.           (Notes of

testimony, 6/24/16 at 66-67.)      On cross-examination, Feldbauer admitted

that she told appellant “to write down the truth” in his statement. (Id. at

69.)

       Appellant elected not to testify. After the trial court charged the jury,

the trial court asked counsel whether there were any exceptions to the

charge or any additional charge or any additional items.       (Id. at 83.)   At

sidebar, Attorney Daghir stated:




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            Judge, I did not hear the Court instruct on the
            [appellant] not testifying and them not being . . . .
            However, it’s – at this late point right now I do not
            want the Court to make that instruction. And my
            basis for that is because now I’m concerned that it
            really would highlight it. I’ve discussed it with my
            client, and he’s agreeable to not –

Id. at 83. Consequently, no instruction was given at that time.

      While the jury deliberated, it asked that appellant’s statement be read

to it, and the trial court denied the request:

            Ladies and gentlemen of the jury, we’ve come to
            side-bar and we’ve met on this before and had an
            instruction that I didn’t read to you that the
            defendant has an absolute right not to testify in a
            case. I said it earlier when I gave you your earlier
            instructions, that he comes into this courtroom
            cloaked in a – with the presumption of innocence.
            And the fact that he hasn’t testified cannot be used
            against him because he has an absolute right to not
            testify in a case.

                   And counsel and I have met on this issue and
            met again just now at the bench, and I believe that
            I’m not allowed to read that statement to you at this
            time. I’m very specifically by the rules not allowed
            to give it to you to take out of the courtroom
            because it’s in effect giving you a transcript of
            something that happened earlier.       So it’s your
            recollection – you have to rely on your recollection
            [of] what he said in the statement that was
            presented to you in the courtroom.

Id. at 86-87.

      The   jury   found appellant guilty of the    firearms charge.      On

September 8, 2016, the sentencing court, though a different judge than the

one who conducted the trial, imposed the sentence set forth above.       The



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trial court noted that neither party objected to the fact that a different judge

handled sentencing. (Notes of testimony, 9/8/16 at 2-4.)

      On September 14, 2016, appellant filed post-sentence motions and

moved for a new trial based on the trial court’s failure to charge the jury

regarding no adverse inference to be drawn from appellant’s failure to testify

at trial.   Following oral argument on December 2, 2016, the trial court

denied the motion for a new trial by order and memorandum opinion dated

December 23, 2016. On January 5, 2017, appellant appealed to this court.

On   January   13,   2017,   Attorney    Daghir   filed   a   Pa.R.A.P. 1925(c)(4)

statement in lieu of a statement of errors complained of on appeal and

stated that no errors had been raised because Attorney Daghir intended to

withdraw as counsel.

      Attorney Daghir raises just one issue for this court’s review: “Whether

the appeal is frivolous such that counsel’s petition to withdraw should be

granted?” (Appellant’s brief at 3.)

      On March 1, 2017, Attorney Daghir filed in this court a petition to

withdraw as counsel and an Anders brief, wherein Attorney Daghir states

that there are no non-frivolous issues preserved for our review on appeal.

                   A request by appointed counsel to withdraw
             pursuant to Anders and Santiago gives rise to
             certain requirements and obligations, for both
             appointed counsel and this Court. Commonwealth
             v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
             2015).




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               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 additional points
                    worthy     of    the     Court’s
                    attention.

               Woods, 939     A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise content of an Anders brief:

                    The   Anders       brief   that
                    accompanies court-appointed
                    counsel’s petition to withdraw


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                       . . . 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.

           Id. at 1248. If this Court determines that appointed
           counsel has met these obligations, it is then our
           responsibility “to make a full examination of the
           proceedings and make an independent judgment to
           decide whether the appeal is in fact wholly frivolous.”
           Id. at 1248. In so doing, we review not only the
           issues identified by appointed counsel in the Anders
           brief, but examine all of the proceedings to “make
           certain that appointed counsel has not overlooked
           the existence of potentially non-frivolous issues.”
           Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Daghir’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant; advised him of his right to retain new counsel,

proceed pro se, and/or raise any additional points that he deems worthy of


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this court’s attention; and attached to the Anders petition a copy of the

letter sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005).                See Commonwealth v. Daniels,

999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). As Attorney Daghir has

complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

      Once    counsel     has     met    his   obligations,   “it   then   becomes     the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of appellant’s appeal.

      Initially,   this   court   will   address    the   possible    issue   raised   by

Attorney Daghir of whether the trial court erred when it failed to give the

jury instruction not to take an adverse inference regarding appellant’s failure

to testify. Attorney Daghir called the trial court’s failure to issue the charge

to the trial court’s attention but did not object and, in fact, stated that he did

not want the charge issued at that time. This court has held that no part of

a jury charge may be assigned as error unless a specific objection is lodged

prior to the jury’s deliberations. Commonwealth v. West, 937 A.2d 516



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(Pa.Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2009). As appellant

did not object to the failure to charge the jury with this instruction, he

cannot raise this issue on appeal. Additionally, when the jury requested that

appellant’s statement be read to it, the trial court declined the request and,

at that time, did explain that the jury is not permitted to make an adverse

inference based on appellant’s failure to testify.

         Attorney Daghir also presents a possible issue for appeal that the

judge who presided at the trial did not sentence appellant. The Honorable

Michael E. Dunlavey, Senior Judge Specially Presiding, conducted appellant’s

trial.    The Honorable Richard A. Masson, President Judge, sentenced

appellant.

         Rule   700(a) of the      Pennsylvania   Rules of Criminal   Procedure,

Pa.R.Crim.P. 700(a), provides that absent extraordinary circumstances, the

judge who presides at trial shall impose sentence. In Commonwealth v.

McNeal,         120   A.3d   313     (Pa.Super.   2015),   this   court   applied

Pa.Crim.P. 700(a) in a probation revocation case and determined that absent

either extraordinary circumstances or the consent of the parties, the judge

who conducted a trial or received a plea of guilty shall be the judge to

impose sentence. Here, at sentencing, Attorney Daghir stated that he had

consulted with appellant and “had no objection to some judge other than

Judge Dunlavey doing the sentencing.” (Notes of testimony, 9/8/16 at 3.)

Because appellant consented to a different judge sentencing him than the



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one who presided at trial, we agree with Attorney Daghir that the issue is

wholly frivolous and without merit.

      The third issue Attorney Daghir raises as a possible issue is that the

trial court erred when it denied appellant’s motion to suppress the statement

appellant made to the Ridgway Police Department.             In the suppression

motion, appellant argued that his constitutional rights under both the

Pennsylvania and United States Constitutions and Miranda were violated

when the police obtained incriminating oral and written statements from him

on October 21, 2015, when he was so intoxicated as to lack the mental

capacity   necessary    to   render   a   voluntary,   knowing,   and   intelligent

statement.

      Following a hearing in which Officer Gangloff, appellant, and Feldbauer

testified, the trial court denied the suppression motion.

      Our standard of review for challenges to the denial of a suppression

motion is as follows:

             [We are] limited to determining whether the
             suppression court’s factual findings are supported by
             the record and whether the legal conclusions drawn
             from those facts are correct.           Because the
             Commonwealth prevailed before the suppression
             court, we may consider only the evidence of the
             Commonwealth and so much of the evidence for the
             defense as remains uncontradicted when read in the
             context of the record as a whole.          Where the
             suppression court’s factual findings are supported by
             the record, we are bound by these findings and may
             reverse only if the court’s legal conclusions are
             erroneous.    Where . . . the appeal of the
             determination of the suppression court turns on


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            allegations of legal error, the suppression court’s
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted). Further, “[i]t is

for the suppression court as the trier of fact, rather than the reviewing court,

to determine credibility.”    In Interest of Parks, 536 A.2d 440, 443

(Pa.Super. 1988).

      Here, the trial court found credible the testimony of Officer Gangloff

that Officer Gangloff read appellant his Miranda rights from the preprinted

portion of the voluntary statement form.      (Notes of testimony, 4/13/16 at

8-11.) The trial court also found credible Officer Gangloff’s testimony that

appellant did not indicate to Officer Gangloff on October 21, 2015, that he

was under the influence of any alcohol, controlled or counterfeit substance,

or was impaired in any way. (Id. at 11.) Officer Gangloff also reported that

appellant did not refer to having taken any prescription medications prior to

meeting with Officer Gangloff.    (Id. at 12.)   The trial court also credited

Officer Gangloff’s extensive experience as a police officer with interactions

with those under the influence of drugs or alcohol when he reported that

appellant did not possess any objective indicators of intoxication.

      The trial court further rejected appellant’s testimony that he did not

recall being at the police station on October 21, 2015, did not recognize his


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written statement, and did not recall having written the statement. (Id. at

20-21.) The trial court further rejected appellant’s contention that he lacked

capacity to make the statement due to his ingestion of a combination of

alcohol and drugs.

      The trial court is the fact-finder in the suppression hearing.   Parks.

The record supports the trial court’s factual findings.   There is no credible

support in the record for appellant’s contention that he suffered a

deprivation of his constitutional rights because he lacked capacity to make a

knowing, voluntary, and intelligent statement regarding his possession of a

firearm.   A review of the record supports the trial court’s factual findings

such that an appeal based on this issue would be frivolous.

      Additionally, our independent review of the entire record has not

disclosed any potentially non-frivolous issues.     Consequently, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/29/17




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