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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                            :
                                               :
                                               :
    BRANDY L. STYDINGER,                       :
                                               :
                       Appellant               :      No. 1610 MDA 2019

      Appeal from the Judgment of Sentence Entered September 12, 2019
                in the Court of Common Pleas of Mifflin County
             Criminal Division at No(s): CP-44-CR-0000500-2018

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED APRIL 17, 2020

        Brandy L. Stydinger (“Stydinger”) appeals from the judgment of

sentence entered following her conviction of delivery of a controlled substance

(“Delivery”).1    Counsel for Stydinger has filed a Petition to Withdraw from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant counsel’s Petition to Withdraw, and affirm Stydinger’s judgment of

sentence.

        On February 15, 2018, a confidential informant (“CI”) arranged to

purchase diazepam (Valium), a controlled substance, from Stydinger. The CI

was searched and provided with U.S. currency to complete the transaction.

The CI was transported to Stydinger’s residence. At the residence, the CI

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1   See 35 P.S. § 780-113(a)(30).
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purchased ten pills from Stydinger. The pills were later identified as diazepam.

Stydinger subsequently was charged with Delivery.

      A jury subsequently convicted Stydinger of Delivery. On September 12,

2019, the trial court sentenced Stydinger to serve three to eighteen months

in the Mifflin County Correctional Facility.     Stydinger did not file a post-

sentence motion. The trial court ordered Stydinger to file a Pa.R.A.P. 1925(b)

concise statement. Stydinger’s counsel filed a Concise Statement indicating

that there are no non-frivolous issues that could be raised on appeal, but

identifying two issues to preserve the right to appellate review. See Concise

Statement at 1.

      In the Anders Brief, counsel presents the following claims for our

review:

      [A.] Was the evidence sufficient to support the verdict because it
      did not prove, beyond a reasonable doubt[,] that [Stydinger]
      delivered a Schedule IV controlled substance to a [CI]?

      [B]. Was [t]rial [c]ounsel ineffective for failing to raise the
      affirmative defense of alibi at trial?

      [C]. Was the sentence imposed by the trial court excessive?

      [D]. Are there any non-frivolous issues preserved on appeal?

Anders Brief at 1-2 (unnumbered) (some capitalization omitted, issues

renumbered).

      Before this Court may consider the merits of the issue raised, we must

address   counsel’s   Petition   to   Withdraw   from   representation.    See

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (stating

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that,    “[w]hen   presented    with   an    Anders   brief,   this   Court   may

not review the merits of the underlying issues without first passing on the

request to withdraw.”).     According to Santiago, in the Anders brief that

accompanies counsel’s petition to withdraw, counsel 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.

        Here, counsel’s Petition to Withdraw states that he has reviewed the

record and concluded that the appeal is frivolous.         Additionally, counsel

notified Stydinger that counsel was seeking permission to withdraw, furnished

Stydinger with copies of the Petition to Withdraw and Anders Brief, and

advised Stydinger of her right to retain new counsel, or proceed pro se, to

raise any points she believes worthy of this Court’s attention.          See id.

Accordingly, counsel has satisfied the procedural requirements of Anders.

        We next determine whether counsel’s Anders Brief meets the

substantive dictates of Santiago. Our review of the Anders Brief discloses

that counsel has provided the facts and procedural history of the case.

Additionally, counsel refers to three substantive claims that could arguably

support the appeal and concludes that the issues are wholly frivolous.




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Because appellate counsel has satisfied the above requirements, we will

address the substantive issues raised in the Anders Brief.

        Stydinger first challenges the sufficiency of the evidence underlying the

verdict.    Anders Brief at 3-4.       Counsel provides little to no citation to

authorities or the record beyond this bald allegation. See id.

        As this Court has explained,

        [w]hen reviewing the sufficiency of the evidence, we must
        determine whether the evidence admitted at trial and all
        reasonable inferences drawn therefrom, viewed in the light most
        favorable to the Commonwealth as verdict winner, were sufficient
        to prove every element of the offense beyond a reasonable doubt.
        The facts and circumstances established by the Commonwealth
        need not preclude every possibility of innocence. It is within the
        province of the fact-finder to determine the weight to be accorded
        to each witness’s testimony and to believe all, part, or none of the
        evidence. The Commonwealth may sustain its burden of proving
        every element of the crime by means of wholly circumstantial
        evidence. As an appellate court, we may not re-weigh the
        evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa. Super. 2019) (internal

quotation marks, citations and brackets omitted).

        The Controlled Substance, Drug, Device and Cosmetic Act prohibits

the delivery of a controlled substance without proper authorization. 35 P.S.

§ 780-113(a)(30).      “Delivery” is defined as “the actual, constructive, or

attempted        transfer       from    one     person      to     another     of

a controlled substance[.]” Id. § 780-102.       “A defendant actually transfers

drugs      whenever     [s]he     physically   conveys     drugs    to    another

person.” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004).


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       In its Opinion, the trial court addressed this claim as follows:

              At [Stydinger’s] jury trial on July 9, 2019, testimony
       provided [that] a [CI] made arrangements with [Stydinger] to
       purchase Valium at her residence. On February 15, 2018, the [CI]
       was strip searched to ensure there was not any money or
       contraband on his person and then transported to [Stydinger’s]
       residence with twenty dollars in [t]ask [f]orce funds. The [CI]
       entered [Stydinger’s] residence, bought ten (10) pills from
       [Stydinger] and left the residence minutes later. These ten (10)
       pills were later identified as [d]iazepam.[2]

              Based upon this brief recitation of the testimony at trial[,]
       and when viewing all of the evidence admitted in the light most
       favorable to the Commonwealth, the [trial c]ourt finds [that] there
       was sufficient evidence that would have enabled the jury to find
       every element of the crime beyond a reasonable doubt.
       Testimony provided [that] the [CI] purchased [d]iazepam from
       [Stydinger] on February 15, 2018. The [CI] was strip searched
       prior to entering [Stydinger’s] residence and[,] after leaving
       [Stydinger’s] residence[,] had ten pills in his possession. He
       testified [that] he purchased these pills from [Stydinger] in
       exchange for the $20 given to him by the [d]rug [t]ask [f]orce.
       Based on this testimony, the jury could have found [that
       Stydinger] delivered [d]iazepam, a controlled substance, in
       exchange for the money.

Trial Court Opinion, 10/18/19, at 2 (footnote added); see also N.T., 7/9/19,

at 45-48 (wherein the CI testified that he had purchased a controlled

substance from Stydinger, at her residence, on February 15, 2018).

       Our review discloses that the trial court’s findings are supported by the

evidence of record and its legal conclusions are sound. We therefore affirm

on the basis of trial court’s above-stated reasoning with regard to Stydinger’s

first claim. See id.

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2 The parties do not dispute that diazepam is a Schedule IV controlled
substance under the Act.

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      In her second claim, Stydinger argues that the trial court imposed an

excessive sentence. Anders Brief at 4. As counsel points out in the Anders

Brief, the trial court sentenced Stydinger at the low end of the standard range

of the sentencing guidelines. Id.

      “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017).             Prior to reaching the merits of a

discretionary sentencing issue,

      [w]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Grays, 167 A.3d at 815-16 (some citations omitted).

      Our review of the record discloses that, although Stydinger timely filed

her Notice of Appeal, she failed to preserve her sentencing challenge at

sentencing or in a motion to reconsider and modify the sentence.

See Commonwealth          v.        Ahmad,     961   A.2d   884,    886    (Pa.     Super.

2008) (stating that “[a] challenge to an alleged excessive sentence is a

challenge to the discretionary aspects of a sentence. Issues challenging the

discretionary   aspects        of     a sentence must       be    raised    in      a post-

sentence motion or by presenting the claim to the trial court during

the sentencing proceedings.           Absent    such   efforts,    an   objection    to   a


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discretionary    aspect    of   a   sentence     is   waived.”)   (citations   omitted).

Accordingly, Stydinger waived the claim by failing to file a post-sentence

motion, and the issue is frivolous on appeal. See id.

        In her third claim, Stydinger argues that trial counsel rendered

ineffective assistance by failing to raise the affirmative defense of alibi.

Anders Brief at 4.

        Generally, a claim that trial counsel is ineffective is deferred to collateral

review under the Post Conviction Relief Act (“PCRA”).3 Commonwealth v.

Holmes, 79 A.3d 562, 563-64 (Pa. 2013). Ineffectiveness claims may be

raised on direct appeal if (1) the appellant raised her claim(s) in a post-

sentence motion; (2) an evidentiary hearing was held on the claim(s); and (3)

a record devoted to the claim(s) has been developed. Commonwealth v.

Leverette, 911 A.2d 998, 1004 (Pa. Super. 2006).

        Here,    Stydinger       failed    to    satisfy    the     requirements      of

Holmes and Leverette. Therefore, this appeal is not the proper time to raise

or address her ineffective assistance of counsel claim.            Instead, Stydinger

must wait to raise any ineffectiveness claims in a timely filed PCRA petition.

        Finally, we review the record to determine whether there are any

arguably meritorious issues that counsel, intentionally or not, missed or

misstated. See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.



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3   See 42 Pa.C.S.A. §§ 9541-9546.

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Super. 2018) (en banc) (noting that Anders requires the reviewing court to

“review ‘the case’ as presented in the entire record with consideration first of

issues raised by counsel.”).

      Upon our review, we discern no additional, arguably meritorious issues

that counsel missed or misstated.     As such, we grant counsel’s Petition to

Withdraw, and affirm the judgment of sentence.

      Petition to Withdraw granted. Judgment of sentence affirmed.

      Judge Kunselman joins the memorandum.

      Judge Shogan concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/17/2020




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