J-S12006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                               IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA


                       v.

JEFFREY DENNIS

                            Appellant                         No. 1506 MDA 2016


            Appeal from the Judgment of Sentence August 19, 2016
                In the Court of Common Pleas of Mifflin County
             Criminal Division at No(s): CP-44-CR-0000583-2015


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                                     FILED MARCH 22, 2017

       Appellant, Jeffrey Dennis, appeals from the judgment of sentence

entered after a jury found him guilty of possessing an artificial cannabinoid

with the intent to deliver. Additionally, Dennis’s appointed counsel, Stuart A.

Cilo, Esq., has filed a petition to withdraw as counsel pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm Dennis’s judgment of sentence and grant

counsel’s petition to withdraw.

       Attorney Cilo has substantially complied1 with the mandated procedure

for   withdrawing     as    counsel.    See    id.,   at    361   (articulating   Anders

____________________________________________


1
 Counsel failed to cite to the record for the procedural history of this matter.
Counsel’s oversight has not impeded our review of this relatively simple
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requirements); Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.

2010) (providing that counsel must inform client by letter of rights to

proceed once counsel moves to withdraw and append a copy of the letter to

the petition). Dennis has not filed a response to counsel’s petition to

withdraw.

      In his Anders brief, counsel discusses three possible issues for appeal.

First, he addresses the sufficiency of the evidence supporting Dennis’s

conviction.

      As a general matter, our standard of review of sufficiency claims
      require that we evaluate the record in the light most favorable to
      the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).

      The jury convicted Dennis of possessing a designer drug with the

intent to distribute it. See 35 P.S. § 780-113(a)(36). At least one of the
                       _______________________
(Footnote Continued)

criminal prosecution, and we therefore proceed to address the issues before
us.



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defense strategies at trial involved attacking the Commonwealth’s proof that

the compound found in Dennis’s possession was a designer drug. Designer

drugs are defined as substances other than those explicitly listed in the

schedules contained in the Controlled Substance, Drug, Device and Cosmetic

Act (“the Act”), and which either share a substantially similar chemical

structure to a listed drug, or which cause a substantially similar effect as a

listed drug. See 35 P.S. § 780-102.

      The Commonwealth presented the expert testimony of forensic

scientist John Evans. Evans testified that the substance found in Dennis’s

possession was determined to be a synthetic cannabinoid known as AB-

CHMINACA. See N.T., Jury Trial, 7/12/16, at 39-40.

      The Commonwealth also presented the expert testimony of toxicologist

J. Ward Donovan, M.D. Dr. Donovan testified that AB-CHMINACA has a

chemical structure that is substantially similar to marijuana, a drug that is

explicitly listed in the schedules of the Act. See id., at 33. It therefore has a

similar, if more powerful, effect as marijuana when used by a human. See

id.

      This testimony is sufficient to support the jury’s finding that Dennis

possessed AB-CHMINACA and that the cannabinoid is a designer drug under

the Act. We therefore agree with counsel that this issue lacks arguable

merit.




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      Next, counsel identifies a ruling on a motion in limine that permitted a

police detective to testify as an expert on the effect AB-CHMINACA has when

used by a human. Dennis argued against the qualification of the detective as

an expert on two grounds. First, he asserted that detective’s knowledge was

based purely on hearsay from arrestees. Second, he argued that the

detective could not positively link any of his knowledge directly to AB-

CHMINACA, as opposed to artificial cannabinoids in general.

      However, as counsel notes in his Anders brief, any problem with this

ruling was nullified when the Commonwealth called Dr. Donovan to testify

regarding AB-CHMINACA. We therefore agree that this issue lacks arguable

merit.

      Finally, counsel identifies a dispute at sentencing regarding Dennis’s

date of birth. This dispute was relevant to the computation of Dennis’s prior

record score due to a conviction for receiving stolen property that might

have been a juvenile adjudication. However, even assuming that the

conviction was a juvenile adjudication, Dennis’s prior record score for the

current sentence would have been “repeat felon,” or RFEL, according the

guidelines. See N.T., Sentencing, 8/19/16, at 3-4. No other issues were

raised at sentencing or in a post-sentence motion. We therefore agree with

counsel’s conclusion that this issue lacks arguable merit.




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       After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

     Judgment of sentence affirmed. Petition to withdraw as counsel

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2017




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