J-S57041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    SHAMAL SONY GRANDOIT,                       :
                                                :
                       Appellant                :       No. 190 MDA 2019

          Appeal from the Judgment of Sentence Entered June 7, 2017
               in the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002472-2016

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: DECEMBER 27, 2019

        Shamal Sony Grandoit (“Grandoit”) appeals from the judgment of

sentence imposed after a jury convicted him of possession with intent to

deliver a controlled substance, possession of a controlled substance,

possession of drug paraphernalia, and criminal use of a communication

facility.1 Additionally, Grandoit’s counsel, Matthew P. Kelly, Esquire (“Attorney

Kelly”), has filed a Petition to Withdraw as counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967).           We grant

Attorney Kelly’s Petition to Withdraw and affirm Grandoit’s judgment of

sentence.

        On May 13, 2016, a Kingston Borough Police Department officer

observed Grandoit engage in what the officer believed to be a hand-to-hand

drug transaction, which occurred behind a restaurant. Grandoit then got into
____________________________________________


1   See 35 P.S. § 780-113(a)(30), (16), (32); 18 Pa.C.S.A. § 7512(a).
J-S57041-19



a vehicle and drove away, after which the police stopped the vehicle, and

placed Grandoit in custody.         Shortly thereafter, the police returned to the

restaurant in an attempt to locate the person who, the police suspected, had

purchased drugs from Grandoit.            The police encountered and questioned

Derek Lewis (“Lewis”), who was employed at the restaurant. Lewis confessed

that he had purchased ten bags of heroin from Grandoit, and identified

Grandoit in a police photograph. Lewis also showed the police text messages

between him and Grandoit concerning the transaction (hereinafter, the “text

message evidence”).         The Commonwealth subsequently charged Grandoit

with the above-mentioned crimes.

       The matter proceeded to a jury trial, at the close of which the jury found

Grandoit guilty of the above-mentioned crimes. On June 7, 2017, the trial

court sentenced Grandoit to an aggregate term of 35 to 70 months in prison.

Grandoit did not initially file a direct appeal. However, Grandoit’s direct appeal

rights were subsequently reinstated, nunc pro tunc. The trial court appointed

Attorney Kelly to represent Grandoit. Attorney Kelly filed a timely Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal. In response, the trial court issued a Rule 1925(a)

Opinion. Thereafter, Attorney Kelly filed, with this Court, an Anders Brief and

a Petition to Withdraw as counsel.2



____________________________________________


2Grandoit neither filed a pro se brief, nor retained alternate counsel for this
appeal.

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     Before addressing Grandoit’s issues on appeal, we must determine

whether Attorney Kelly has complied with the dictates of Anders and its

progeny     in   petitioning   to   withdraw   from   representation.      See

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006).

Pursuant to Anders, when counsel believes that an appeal is frivolous and

wishes to withdraw from representation, he or she must

     (1) petition the court for leave to withdraw[,] stating that after
     making a conscientious examination of the record and
     interviewing the defendant, counsel has determined the appeal
     would be frivolous, (2) file a brief referring to any issues in the
     record of arguable merit, and (3) furnish a copy of the brief to
     defendant and advise him of his right to retain new counsel or to
     raise any additional points that he deems worthy of the court’s
     attention. The determination of whether the appeal is frivolous
     remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted).

     Additionally, the Pennsylvania Supreme Court has explained that a

proper 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).




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      In the instant case, our review of the Anders Brief and the Petition to

Withdraw reveals that Attorney Kelly has complied with all of the requirements

of Anders/Santiago. The record further reflects that Attorney Kelly has (1)

provided Grandoit with a copy of both the Anders Brief and Petition to

Withdraw, (2) sent a letter to Grandoit advising him of his right to retain new

counsel, proceed pro se or raise any additional points that he deems worthy

of this Court’s attention, and (3) attached a copy of this letter to the Petition

to Withdraw, as required under Commonwealth v. Millisock, 873 A.2d 748,

751-52 (Pa. Super. 2005). Accordingly, we must next examine the record

and make an independent determination of whether Grandoit’s appeal is, in

fact, wholly frivolous.

      Attorney Kelly presents the following issues, on behalf of Grandoit, for

our review:

     I.    Whether trial counsel was ineffective in failing to object to
           [introduction of the] … text message evidence at trial[?]

     II.   Whether the Commonwealth failed to prove beyond a
           reasonable doubt that [Grandoit] sold drugs to the
           Commonwealth’s witness[?]

     III. Whether the use of a single picture to identify [Grandoit] at
          trial was proper[?]

     IV. Whether the traffic stop of [Grandoit] was illegal[?]

Anders Brief at 1.

      Grandoit first argues that his trial counsel rendered ineffective

assistance by failing to object to the introduction of the text message evidence


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at trial. Id. at 5. It is well-settled that ineffectiveness claims may not be

raised in the first instance on direct appeal. Commonwealth v. Holmes, 79

A.3d 562, 563 (Pa. 2013) (reaffirming the general rule of deferral to Post

Conviction Relief Act (“PCRA”) collateral review of ineffectiveness claims set

forth in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)). Consequently,

we deny relief, without prejudice to Grandoit’s right to challenge counsel’s

effectiveness in a timely-filed PCRA petition.

       In his second issue, Grandoit challenges the sufficiency of the evidence

supporting his convictions, contending that “the Commonwealth failed to

prove beyond a reasonable doubt that [Grandoit] sold drugs to [Lewis].”

Anders Brief at 5.3



____________________________________________


3 Preliminarily, we note that Grandoit does not specify the convictions, or the
elements thereof, that he challenges as not being supported by sufficient
evidence. This Court has explained that

        when challenging the sufficiency of the evidence on appeal, the
        [a]ppellant’s [court-ordered Rule 1925(b) concise] statement
        must specify the element or elements upon which the evidence
        was insufficient in order to preserve the issue for appeal. Such
        specificity is of particular importance in cases where … the
        [a]ppellant was convicted of multiple crimes[,] each of which
        contains numerous elements that the Commonwealth must
        prove beyond a reasonable doubt.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations
and quotation marks omitted). If the appellant does not specify such
elements, the sufficiency claim is deemed waived. Id. Accordingly, we could
determine that Grandoit waived his sufficiency challenge. Nevertheless, we
will briefly address the merits of the claim, as the trial court discussed it in its
Opinion.

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      Our standard of review of a sufficiency of the evidence claim is well

settled:

      Our standard of review is whether the evidence admitted at trial,
      and all reasonable inferences drawn from that evidence, when
      viewed in the light most favorable to the Commonwealth as
      verdict winner, were sufficient to enable the fact finder to conclude
      that the Commonwealth established all of the elements of the
      offense beyond a reasonable doubt.

Commonwealth v. Cruz, 71 A.3d 998, 1006 (Pa. Super. 2013) (citation and

brackets omitted).

      The trial court addressed and rejected Grandoit’s sufficiency challenge

in its Opinion as follows:

             Detective John Anthony [(“Detective Anthony”)] of the
      Kingston Borough Police Department testified that on May 13,
      2016, he observed what his training suggested to him was a
      hand[-]to[-]hand drug transaction between two men[,] later
      identified as [Grandoit] and [] Lewis. N.T. 4/25/17 at 22, 24-25.
      After the transaction occurred, [Grandoit] drove away in a vehicle
      that was later stopped by police. Id. at 29, 41. The police then
      made contact with [] Lewis, who admitted that he bought heroin
      from [Grandoit,] and turned over the ten packets that were the
      subject of the transaction. Id. at 30, 77. At trial, Lewis identified
      [Grandoit] as the person from whom he purchased heroin on the
      day in question. Id. at 52. Additionally, Lewis testified that at
      the time, he was a drug user, and that he purchased heroin from
      [Grandoit] after communicating with him through text messages.
      Id. at 52, 54-57, 60-61. The [p]olice investigation confirmed the
      existence of this text conversation between the cell [phone]
      number associated with the cell phone seized from [Grandoit] on
      May 13, 2016, and the phone provided to police by [] Lewis. Id.
      at 53, 58.

           Based on the evidence presented by the Commonwealth, we
      suggest that the record, viewed in the light most favorable to the
      Commonwealth as the verdict winner[,] and giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence, establishes each material element of the

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      crime[s] charged and the commission thereof by [Grandoit],
      beyond a reasonable doubt. As such, the evidence is sufficient to
      support the [] conviction[s] [].

Trial Court Opinion, 5/24/19, at 4-5. The trial court’s analysis is supported by

the law and the record, and we thus affirm on this basis in concluding that

Grandoit’s sufficiency challenge is frivolous. See id.

      In his third issue, Grandoit “contends that the use of a single picture to

identify him as the perpetrator was improper.” Anders Brief at 6.

      In its Opinion, the trial court determined that Grandoit failed to preserve

this issue:

      [Grandoit’s Pa.R.A.P.] 1925(b) Statement does not cite to the
      location in the record where trial counsel objected to the use of a
      single picture to identify [Grandoit], and our own review of the
      record indicates that no such objection was made. As such, any
      challenge to the use of a single picture to identify [Grandoit] is
      waived for failure to raise it before the trial court. Pa.R.A.P.
      302(a) ([providing that] “[i]ssues not raised in the lower court are
      waived and cannot be raised for the first time on appeal.”);
      Commonwealth v. Cole, 167 A.3d 49, 64 (Pa. Super. 2017),
      appeal denied, 186 A.3d 370 (Pa. 2018); Commonwealth v.
      Douglass, 701 A.2d 1376, 1378 (Pa. Super. 1997) ([holding that]
      appellant waived claim that identification evidence should be
      suppressed       because     the   procedure   was      impermissibly
      suggestive[,] where appellant failed to move to suppress the
      identification; and such failure precludes its litigation for the first
      time at trial, in post-trial motions or on appeal).[FN 1]

               Even if preserved, a challenge to the use of a “single
          [FN 1]

          picture” would not appear to provide [Grandoit] relief,
          since the record is clear that [Grandoit] was identified in
          person by Detective Anthony and by [] Lewis.




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Trial Court Opinion, 5/24/19, at 5 (footnote in original). We agree with the

trial court’s analysis and determination, which is supported by the law and the

record. Accordingly, this claim entitles Grandoit to no relief.

      In his fourth and final issue, Grandoit baldly argues that “the traffic stop

was illegal.” Anders Brief at 6.

      The trial court determined that Grandoit also failed to preserve this

claim, stating as follows:

      As with the previous issue, [Grandoit’s] Rule 1925(b) Statement
      does not cite to the location in the record where trial counsel
      objected to the legality of the traffic stop,[FN 2] and our own review
      of the record indicates that no such objection was made. Also as
      noted above, no suppression motion was filed in this case, and at
      no time did [Grandoit] argue before the trial court that the traffic
      stop was “illegal” in any respect. Because [Grandoit] did not raise
      this alleged error before the trial court, it does not entitle[] him to
      relief on direct appeal. Pa.R.A.P. 302(a).

            [FN 2]
                The Rule 1925(b) Statement does not specify the
            manner in which the traffic stop was allegedly illegal.

Trial Court Opinion, 5/24/19, at 6 (footnote in original and location moved).

The trial court’s analysis is supported by the record, and we likewise conclude

that this claim is waived.

      Finally, because our independent review of the record discloses no

additional non-frivolous issues that Grandoit could raise on appeal, we grant

Attorney Kelly’s Petition to Withdraw and affirm Grandoit’s judgment of

sentence.

      Petition to Withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2019




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