J-E04008-17
                               2018 PA Super 136



COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                          Appellee        :
                                          :
                   v.                     :
                                          :
CHRISTIAN JOHN YORGEY,                    :
                                          :
                          Appellant       :     No. 3376 EDA 2016

          Appeal from the Judgment of Sentence September 26, 2016
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0006914-2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY DUBOW, J.:                                  FILED MAY 24, 2018

        Appellant, Christian John Yorgey, appeals from the Judgment of

Sentence entered by the Montgomery County Court of Common Pleas

following his conviction of one count of Possession of Drug Paraphernalia and

two counts of Possession of a Small Amount of Marijuana.1 On appeal, he

challenges the trial court’s denial of his Motion to Suppress.      Appellant’s

counsel filed a Petition to Withdraw as Counsel and a Brief pursuant to Anders

v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in

Commonwealth         v.   McClendon,   434    A.2d   1185   (Pa.   1981),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,




1   35 P.S. § 780-113(a)(32) and 35 P.S. § 780-113(a)(31), respectively.
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we grant counsel’s Petition to Withdraw and affirm Appellant’s Judgment of

Sentence.

      We summarize the relevant facts, as gleaned from the certified record,

the suppression hearing, and the trial court’s Pa.R.A.P. 1925(a) Opinion, as

follows. On December 3, 2015, someone in Appellant’s home called 911 to

report a domestic dispute at the family’s apartment. Corporal Michael Slattery

and Officer Jeremy Bonner of the Lower Providence Township Police

Department responded to the call.

      As they entered the apartment building, Appellant was walking down

the stairs from the second-floor apartment. The officers informed Appellant

of their purpose, and Officer Bonner remained downstairs with Appellant while

Corporal Slattery went upstairs to Appellant’s apartment. Corporal Slattery

knocked on the door and, after securing the dogs, Ms. Yorgey, Appellant’s

wife, opened the door and invited him inside the apartment.          She then

explained to Corporal Slattery that the domestic dispute had been a verbal

argument.

      Officer Cherelle Cutting arrived in the apartment shortly thereafter, and

pointed out to Corporal Slattery that a gold-colored marijuana grinder was

sitting in plain view on the floor next to the sofa.   When asked about the

grinder, Ms. Yorgey told the police officers, “That’s not mine.         That’s

[Appellant’s] grinder.” N.T. Suppression, 7/1/16, at 22, 35. She also stated

“[t]hat’s where he sits at the couch. He’ll do drugs at the table there. He’ll


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smoke his marijuana there.     I don’t smoke marijuana.      I’m on too many

medications. . . . I don’t like when he smokes in the house.” Id. at 23, 35.

      Corporal Slattery then went back downstairs to speak with Appellant,

patted him down for weapons, and took him into custody for possession of

drug paraphernalia, i.e., the marijuana grinder.      In conducting a search

incident to arrest, Corporal Slattery found a “one-hitter” in Appellant’s right-

side back pocket.2 Appellant then informed Corporal Slattery that before they

transported him to county jail, he wanted to get his cell phone from his truck.

Officer Bonner retrieved the phone from the truck, and then informed Corporal

Slattery that he had noticed a strong odor of marijuana coming from inside

the vehicle. When Corporal Slattery asked Appellant about the odor, Appellant

told him that he would find marijuana in the center console of his truck and

gave his permission to retrieve it.    Officer Bonner then retrieved a small

amount of marijuana and a lit smoking bowl from Appellant’s truck.

      The Commonwealth charged Appellant with the above offenses.

Represented by Kevin Horan, Esq., of the public defender’s office, Appellant

filed a Motion to Suppress seeking the exclusion of all physical evidence

obtained by police officers. At the suppression hearing, Appellant specifically

alleged that the officers did not have consent to enter the apartment and




2A “one-hitter” is a narrow pipe used to provide a single inhalation of ground
marijuana. N.T. Suppression, 7/1/16, at 28.
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lacked probable cause to arrest him for constructive possession of the

marijuana grinder.

      On July 1, 2016, the suppression court held a hearing on the motion.

Corporal Slattery testified to the above facts. Id. at 10-39. Officer Cutting

briefly testified that she first observed the marijuana grinder on the floor of

the Yorgey apartment and that Ms. Yorgey had unequivocally stated that the

marijuana grinder belonged to Appellant. Id. at 63-64.

      Ms. Yorgey testified for the defense that she did not hear the police

knock on the door and did not invite the police inside. Id. at 45-48, 51. She

further testified that she smokes marijuana, but the marijuana grinder was

not hers, and could have belonged to her son, to her nephew, or to Appellant.

Id. at 53-56, 58. She also testified that the marijuana grinder was on the

floor beside her, and that she had handed it to the police officers when they

noticed it. Id. at 53, 57.

      Finding the testimony of Corporal Slattery and Officer Cutting more

credible than Ms. Yorgey, the court denied the Motion to Suppress, concluding

that the evidence recovered by the police officers in the Yorgey’s apartment

was sufficient to give rise to probable cause for Appellant’s arrest. Id. at 86.

Because the police officers had lawfully arrested Appellant for his constructive

possession of the grinder, the evidence seized from Appellant’s person and his

truck was not “fruit of the poisonous tree” and was admissible at trial.




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      Following a trial, a jury found Appellant guilty of the Drug Paraphernalia

offense. The court found him guilty of the two Possession of a Small Amount

of Marijuana offenses.3 On September 26, 2016, the trial court imposed an

aggregate sentence of 150 days of probation, a $100 fine, and the automatic

suspension of his license temporarily.4      N.T. Trial, 9/26/16, at 212-14.

Appellant did not file a Post-Sentence Motion.5

      On October 26, 2016, public defender Christa M. Miller, Esq., filed a

timely appeal on Appellant’s behalf. On November 10, 2016, Appellant filed

a pro se Pa.R.A.P. 1925(b) Statement alleging that trial counsel was

ineffective for failing to subpoena relevant evidence and witnesses. Attorney

Miller subsequently filed a Motion for Leave to Withdraw due to a conflict

created by Appellant’s claim of her colleague’s ineffectiveness. The trial court

granted Attorney Miller’s Motion and appointed Bonnie-Ann Brill Keagy, Esq.,




3 Appellant was not entitled to a trial by jury on the Possession of a Small
Amount of Marijuana charges because, if convicted, their maximum penalty
was only thirty days. See 35 P.S. § 780-113(g); see also Commonwealth
v. Harriott, 919 A.2d 234, 237 (Pa. Super. 2007) (holding that a defendant
is entitled to a jury trial where he or she “faces a charge which, alone, could
lead to imprisonment beyond six months[,]” but not where the “offense bears
a maximum incarceration of six months or less.”).

4 See 75 Pa.C.S. § 1532(c) (“The department shall suspend the operating
privilege of any person upon receiving a certified record of the person's
conviction of any offense involving the possession . . . of any controlled
substance . . .[.]”).

5 Appellant completed his probationary sentence in February 2017. See
Appellant’s Supplemental Brief at 7. The public docket entries also indicate
that Appellant paid his $100 fine.
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to represent Appellant on direct appeal. The court ordered new counsel to file

an amended Pa.R.A.P. 1925(b) Statement.

      On February 3, 2017, counsel filed an amended Rule 1925(b) Statement

asserting that the trial court erred in denying Appellant’s Motion to Suppress

because “[n]o exigent circumstances existed to support the search of either

the residence or the vehicle.” Pa.R.A.P. 1925(b) Statement, filed 2/3/17, at

1. On April 26, 2017, counsel filed a Brief and a Petition to Withdraw pursuant

to Anders and Santiago, supra.          Appellant did not file a response to

counsel’s Anders Brief.

      In her Anders Brief, counsel raised one issue:

      Did the trial court err when it failed to suppress evidence obtained
      as the result of the warrantless searches of [Appellant’s] residence
      and vehicle at the time of [Appellant’s] arrest when no exigent
      circumstances existed to support the search of either the
      residence or the vehicle?

Anders Brief at 5 (capitalization and suggested answers omitted).

      On August 18, 2017, this Court certified this case for en banc review6

regarding the following issue:

      Whether the scope of the appellate court’s independent review of
      the certified record, once Counsel seeks permission to withdraw
      representation, necessitates: (1) a comprehensive review of the
      record for any issues that Counsel might have overlooked; (2)
      review limited to the issues either Counsel or the pro se appellant
      raised; or (3) review limited to the issues raised by either Counsel
      or pro se appellant, and issues that the appellate court is obligated
      to review sua sponte. Compare Commonwealth v. Flowers,
      113 A.3d 1246 (Pa. Super. 2015) (espousing comprehensive

6 This Court also certified Commonwealth v. Dempster, No. 28 EDA 2017
for en banc review, which raised the same issue.
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      review), with Commonwealth v. Baney, 860 A.2d 127 (Pa.
      Super. 2004) (limiting review to issues raised in Anders brief and
      pro se response), and Commonwealth v. Schmidt, [165 A.3d
      1002] (Pa. Super. June 14, 2017) (Gantman, P.J., concurring)
      (suggesting middle ground level of review, in which appellate
      court examines entire record for issues raised in briefs and for
      other issues appearing on face of record which court can raise sua
      sponte)[.]

Order Directing En Banc Certification, 8/18/17, at 1-2. The parties have filed

supplemental briefs addressing this issue.

      Before we address the merits of this appeal, we must determine whether

counsel has complied with the procedures provided in Anders and its progeny.

Commonwealth v. Goodwin, 928 A.2d 287, 292 (Pa. Super. 2007) (en

banc).

      In Anders v. California, 386 U.S. 738 (1967), the United States

Supreme Court addressed “the extent of the duty of a court-appointed

appellate counsel to prosecute a first appeal from a criminal conviction, after

that attorney has conscientiously determined that there is no merit to the

indigent’s appeal.” Id. at 739. California had permitted Anders’s attorney to

withdraw based on a simple letter stating, “I will not file a brief . . . there is

no merit to the appeal.”    Id. at 742.     After concluding that the California

procedures violated the Fourteenth Amendment’s principles of substantial

equality and fair process, the Supreme Court outlined a permissible procedure.

Id. at 744.

      The Supreme Court acknowledged that in cases that involve frivolous

appeals, counsel may request and receive permission to withdraw without

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depriving the indigent defendant of his right to representation, provided

certain safeguards are met. Id. at 741-42. Thus, Counsel who wishes to

withdraw must file a petition to withdraw stating that he or she has made a

conscientious examination of the record and determined that the appeal would

be frivolous. Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.

2004). Also, counsel must provide a copy of the Anders brief to the appellant

and inform him of his right to proceed pro se or retain different counsel. Id.

See also Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005);

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).

      The substance of the 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). In McCoy v. Court of Appeals of

Wisconsin, Dist. 1, 486 U.S. 429 (1988), the U.S. Supreme Court noted that

the Anders brief is designed, inter alia, to assist the court in making “the




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critical determination whether the appeal is indeed so frivolous that counsel

should be permitted to withdraw.” Id. at 439.

      Here, counsel’s Anders Brief has complied with the mandated

procedure for withdrawing as counsel.

      Anders also provides that once the court had determined that counsel

satisfied the above requirements, “the court—not counsel—then proceeds,

after a full examination of all the proceedings, to decide whether the case is

wholly frivolous. If it so finds it may grant counsel’s request to withdraw and

dismiss the appeal[.]” Anders, 386 U.S. at 744. See also Commonwealth

v. Baker, 239 A.2d 201 (Pa. 1968) (holding that Pennsylvania courts must

follow the Anders procedure). Thus, in addition to reviewing counsel’s brief

submitted with the withdrawal motion to ascertain whether counsel has

adequately performed his or her duty with respect to providing proper

representation to the appellant, a reviewing court must:

      then proceed[], after a full examination of all the proceedings,
      to decide whether the case is wholly frivolous. If it so finds it
      may grant counsel’s request to withdraw and dismiss the appeal
      insofar as federal requirements are concerned, or proceed to a
      decision on the merits, if state law so requires. On the other hand,
      if it finds any of the legal points arguable on their merits (and
      therefore not frivolous) it must, prior to decision, afford the
      indigent the assistance of counsel to argue the appeal.

Anders, supra at 744 (emphasis added).

      Our Court has inconsistently applied the mandate set forth in Anders

and its progeny that we conduct “a full examination of all the proceedings, to

decide whether the case is wholly frivolous” before granting an attorney’s

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petition to withdraw from representation.       Anders, supra at 744.          The

discrepancy in our jurisprudence appears to stem from a disagreement as to

whether the Anders requirement of “a full examination of all the proceedings”

pertains only to a review of the record to ascertain “the merits of the appeal”

as that appeal has been presented by counsel seeking to withdraw, or whether

Anders requires a review of the whole record to ascertain complete frivolity,

i.e., that no issues appearing to have merit exist. Id.; Santiago, supra at

358.

       In some cases, we have limited our scope of review to confirm

frivolousness of only those issues presented by counsel in the Anders brief.

See, e.g., Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super.

2013); Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012);

and Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010). In

other cases, however, we have defined the scope of review required by

Anders as one necessitating a review of the entire record for “any other

potentially non-frivolous issues.”     Commonwealth v. Goodwin, 928 A.2d

287, 292 (Pa. Super. 2007) (en banc).           See also Commonwealth v.

Harden, 103 A.3d 107, 112 (Pa. Super. 2014) (reviewing entire record and

finding   one   issue   “worthy   of   discussion”   but   ultimately   frivolous);

Commonwealth v. Palm, 903 A.2d 1244, 1247 (Pa. Super. 2006)

(independently reviewing entire record before concluding that “we cannot

discern any other potentially non-frivolous issues.”); In re S.M.B., 856 A.2d


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1235, 1238 (Pa. Super. 2004) (same); Commonwealth v. Ferguson, 761

A.2d 613, 616 (Pa. Super. 2000) (same).

     Although the Anders Court did not delineate the exact meaning of “full

examination of all the proceedings,” the Pennsylvania Supreme Court

recognized in Santiago, supra, that only “complete frivolity . . . supports

counsel’s request to withdraw and a court’s order granting the request.”

Santiago, supra at 358 (citation omitted).      The Santiago Court further

observed that Anders not only requires counsel to conduct an exhaustive

examination of the record, but also “place[s] the responsibility on the

reviewing court to make an independent determination of the merits of the

appeal.” Id. at 358.

     This Court has stated that “part and parcel of Anders is our Court’s duty

to review the record to insure no issues of arguable merit have been missed

or misstated.” Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super.

2006). This view comports with the main purpose of Anders, which is to

make sure that an appellant is provided with adequate counsel as required by

the Sixth Amendment of the U.S. Constitution.         Ultimately, our Court’s

overriding task is to ensure that a criminal defendant’s loss of liberty is

reviewed with the gravity to which it is entitled.   When counsel seeks to

withdraw, Anders requires nothing less.

     In light of the constitutional rights at issue, we must give Anders a most

generous reading and review “the case” as presented in the entire record with


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consideration first of issues raised by counsel.   Anders, 386 U.S. at 744.

Contrary to the Dissenting Opinion in Flowers, supra, this review does not

require this Court to act as counsel or otherwise advocate on behalf of a party.

Rather, it requires us only to conduct a review of the record to ascertain if on

its face, there are non-frivolous issues that counsel, intentionally or not,

missed or misstated. We need not analyze those issues of arguable merit;

just identify them, deny the motion to withdraw, and order counsel to analyze

them.

        In the Anders Brief, Appellant’s counsel raised a challenge to the

suppression court’s Order denying Appellant’s Motion to Suppress based on

the court’s credibility determinations.7 With respect to the claim raised in the

Anders Brief, we note the following principles of law.

        In reviewing 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. McCoy, 154 A.3d 813, 815-16 (Pa.

Super. 2017).     Where the testimony and other evidence supports the


7 Counsel also considered and rejected three additional issues, including: (1)
a challenge to Appellant’s initial arrest for possessing the marijuana grinder;
(2) the illegal seizure of the marijuana grinder; and (3) Appellant’s desire to
assert trial counsel’s ineffectiveness for failing to obtain and admit evidence
showing that Ms. Yorgey smokes marijuana. Anders Brief at 15-17. We
agree with counsel that these issues are either meritless or waived for failure
to present those arguments in the lower court. Moreover, Appellant’s
ineffectiveness claim is moot because he is no longer serving a sentence and
there is no remedy available. 42 Pa.C.S. § 9543(a)(1)(i).
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suppression court’s findings of fact, we are bound by them and “may reverse

only if the court erred in reaching its legal conclusions based upon the facts.”

Id. at 816. It is within the exclusive province of the suppression court to

“pass on the credibility of witnesses and determine the weight to be given to

their testimony.”   Id.   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).

      Whether the police have consent to enter and search a residence is an

issue of credibility “properly left to the trier of fact for resolution.”

Commonwealth v. Whack, 393 A.2d 417, 419 (Pa. 1978). Once inside a

residence, the plain view doctrine permits a warrantless seizure of evidence

when an officer views it from a lawful vantage point, and it is immediately

apparent that that object is incriminating. Commonwealth v. Petroll, 738

A.2d 993, 999 (Pa. 1999).

      When the police do not find the contraband in question on the

defendant’s person, the Commonwealth must prove that the defendant

constructively possessed it.   Commonwealth v. Kirkland, 831 A.2d 607,

611 (Pa. Super. 2003).      The Commonwealth may establish constructive

possession by the totality of the circumstances. Commonwealth v. Parker,

847 A.2d 745, 750 (Pa. Super. 2004).

      Furthermore, the “search incident to arrest” exception to warrantless

searches permits police to search an arrestee’s person as a matter of course,


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without a case-by-case adjudication of whether such search is likely to protect

officer safety or evidence. Commonwealth v. Simonson, 148 A.3d 792,

799 (Pa. Super. 2016).

      Our review of the record, specifically the Notes of Testimony from the

suppression hearing, indicates that the court found credible the testimony of

Corporal Slattery and Officer Cutting that Ms. Yorgey gave Corporal Slattery

permission to enter the Yorgey home, and that the marijuana grinder was in

plain view on the apartment floor. In so concluding, the suppression court did

not commit a “clear and manifest error” and we will not disturb the

suppression court’s credibility determinations. We further conclude that the

police had probable cause to arrest Appellant for constructive possession of

the grinder, and, therefore, the search of Appellant’s person incident to arrest,

which yielded a small amount of marijuana, a lit marijuana bowl, and a “one-

hitter” was legal.

      Simply stated, Appellant is dissatisfied that the suppression court did

not believe his wife’s story that she did not give the police consent to enter

the apartment. This is, at its core, a challenge to the credibility determinations

made by the suppression court.       Credibility determinations are exclusively

within the province of the suppression court and may not be disturbed absent

a finding of clear and manifest error. See Commonwealth v. Camacho,

625 A.2d 1242, 1245 (Pa. Super. 1993). Our review of the record supports




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the suppression court’s findings of fact, and, not having detected a manifest

error, we decline to disturb the suppression court’s credibility determination.

      Accordingly, Appellant’s claim that the trial court erred in denying his

Motion to Suppress lacks merit. Furthermore, after conducting a full

examination of all the proceedings as required pursuant to Anders, we discern

no non-frivolous issues to be raised on appeal. We therefore grant counsel’s

Petition to Withdraw and affirm Appellant’s Judgment of Sentence.

      Petition to Withdraw granted. Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/18




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