J-S41026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAQUANE HALL                               :
                                               :
                       Appellant               :   No. 2395 EDA 2017

              Appeal from the Judgment of Sentence July 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007535-2016


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 28, 2018

       Appellant, Raquane Hall, appeals from the judgment of sentence

entered on July 5, 2017, following his bench trial convictions of possession of

a controlled substance, possession with intent to distribute a controlled

substance (PWID), possession of drug paraphernalia, and conspiracy to

commit PWID.1 Appointed counsel has filed a petition for leave to withdraw

as counsel in conjunction with a brief pursuant to Anders.2 Upon review, we

grant counsel permission to withdraw and affirm Appellant’s judgment of

sentence.



____________________________________________


1   35 P.S. §§ 780-113(a)(16), 780-113(a)(30), 780-113(a)(32), and 18
Pa.C.S.A. § 903, respectively.

2Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
____________________________________
* Former Justice specially assigned to the Superior Court.
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      Upon review of the certified record, we briefly summarize the facts and

procedural history of this case as follows. On June 15, 2016 at 8:15 p.m.,

Officer Stephen Shippen of the Philadelphia Police Department’s Narcotics

Enforcement Team arrived at the 2300 block of Sydenham Street to

investigate a complaint of narcotics sales. N.T., 4/12/2017, at 15-16. When

he arrived, he observed Appellant and his co-defendant standing in front of a

mechanic’s shop. Id. at 17. Officer Shippen saw a woman in a purple dress

approach Appellant and hand him an unknown amount of U.S. currency. Id.

at 18.   Appellant crossed the street and retrieved a black bag from the

passenger side of a black Cadillac. Id. at 19. Appellant removed small items

from the bag and handed them to the woman in purple who promptly left the

area without police stopping her. Id. Ten minutes later, a man in a black

shirt approached Appellant and handed him money. Id. Appellant crossed

the street and retrieved the same bag from the same Cadillac. Id. Appellant

removed small items from the bag, handed them to the man in black, who

promptly left the area without police intervention.      Id.   After ten more

minutes, another woman approached Appellant’s co-defendant.          Id.   She

handed the co-defendant currency and co-defendant retrieved small items

from the same black bag from the same Cadillac as Appellant. Id. at 19-20.

Officer Shippen believed that these hand-to-hand transactions were narcotics

sales. Id. at 20. A back-up officer stopped the third woman and recovered a

blue pill from her right, front pocket that later tested positive as oxycodone.

Id. 20-21. Police arrested Appellant and his co-defendant. Id. at 21. In

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searches incident to their arrest, police recovered $365.00 from Appellant and

$57.00 from co-defendant. Id. Because neither Appellant nor co-defendant

owned the Cadillac, police unsuccessfully attempted to locate the owner of the

vehicle at his last known address. Id. at 35. Police then searched the Cadillac

without a warrant, and recovered the black bag from the rear, passenger seat.

Id. at 23.       The black bag contained 80 oxycodone pills, two jars with

marijuana, and 34 unused, clear jars. Id. From the trunk, police recovered

a silver scale, a sandwich bag and 25 jars containing marijuana, as well as

three prescription bottles containing, respectively, 90 pills of ibuprofen, 30

pills of Amlodipine, and 18 pills of Naprosyn.     Id.     The Commonwealth

charged Appellant with possession of narcotics, PWID, possession of

paraphernalia, and conspiracy.

       Prior to trial, Appellant filed a counseled motion to suppress all of the

physical evidence because police recovered it without a warrant. The trial

court heard testimony on the motion just prior to the bench trial and denied

Appellant’s motion to suppress. Id. at 59. The trial court heard additional

testimony and found Appellant guilty of all of the aforementioned charges.

Id. at 82. On July 5, 2017, the trial court sentenced Appellant to an aggregate

sentence of seven years of probation. This timely appeal resulted.3

____________________________________________


3   Appellant filed a timely notice of appeal. Trial counsel requested to
withdraw. The trial court entered an order permitting trial counsel to withdraw
and appointing appellate counsel to represent Appellant. The trial court
ordered Appellant to file a concise statement of errors complained of on appeal



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       On March 5, 2018, appellate counsel for Appellant filed a petition to

withdraw from representing Appellant. He also filed an Anders brief, setting

forth two issues that Appellant believes have arguable merit, but which

counsel believes are frivolous. Appellant’s counsel further claims there are no

other, non-frivolous issues Appellant could raise on appeal.

       Before examining the appeal, we must first decide whether counsel met

the procedural requirements to withdraw. Prior to withdrawing as counsel on

a direct appeal under Anders, counsel must file a brief meeting the following

requirements:

       (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.

       Counsel also must provide a copy of the Anders brief to his client.
       Attending the brief must be a letter that advises the client of his
       right to: (1) retain new counsel to pursue the appeal; (2) proceed
       pro se on appeal; or (3) raise any points that the appellant deems

____________________________________________


pursuant to Pa.R.A.P. 1925. Counsel for Appellant complied timely, filing a
statement pursuant to Pa.R.A.P. 1925(c)(4) indicating his intention to file an
Anders brief on appeal. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(c)(4) on December 6, 2017, finding that after its independent
review, there was no merit to Appellant’s appeal.

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      worthy of the court's attention in addition to the points raised by
      counsel in the Anders brief.

      After determining that counsel has satisfied these technical
      requirements [], this Court must then conduct an independent
      review of the record to discern if there are any additional, non-
      frivolous issues overlooked by counsel.

Commonwealth v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017)

(internal citations, quotations, and brackets omitted).

      Upon review, counsel for Appellant lists the following issues as claims

that, according to Appellant, possess arguable merit:

      1. The [trial] court erred by denying Appellant’s motion to
         suppress because the Commonwealth failed to establish that
         police had the legal right to search the vehicle in which the
         contraband was recovered.

      2. The evidence was insufficient to sustain the verdict because the
         Commonwealth’s evidence indicated that Appellant was merely
         present given that neither of suspected buyers to whom
         Appellant allegedly sold small items were stopped by police
         following alleged transactions.

Anders Brief at 13.

      On the first issue, Appellant contends, in sum:

      With regard to Appellant’s first claim, he contends that the trial
      court committed an abuse of discretion by denying his [m]otion
      to [s]uppress the items found in the car because the
      Commonwealth failed to establish that the police had the legal
      right to search the Cadillac. He asserts that he had an expectation
      of privacy in the vehicle and that the search was illegal because
      the police did not secure a warrant before searching the Cadillac.

Id. at 14.

      Our standard of review regarding suppression is as follows:

      When reviewing the propriety of a suppression order, an appellate
      court is required to determine whether the record supports the

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      suppression court's factual findings and whether the inferences
      and legal conclusions drawn by the suppression court from those
      findings are appropriate. Where the record supports the factual
      findings of the suppression court, we are bound by those facts and
      may reverse only if the legal conclusions drawn therefrom are in
      error. However, where the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court's conclusions of law are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts.

      A defendant moving to suppress evidence has the preliminary
      burden of establishing standing and a legitimate expectation of
      privacy.

      Standing requires a defendant to demonstrate one of the
      following: (1) his presence on the premises at the time of the
      search and seizure; (2) a possessory interest in the evidence
      improperly seized; (3) that the offense charged includes as an
      essential element the element of possession; or (4) a proprietary
      or possessory interest in the searched premises. A defendant must
      separately establish a legitimate expectation of privacy in the area
      searched or thing seized. Whether defendant has a legitimate
      expectation of privacy is a component of the merits analysis of the
      suppression motion. The determination whether defendant has
      met this burden is made upon evaluation of the evidence
      presented by the Commonwealth and the defendant.

      With more specific reference to an automobile search, this Court
      has explained as follows: generally under Pennsylvania law, a
      defendant charged with a possessory offense has automatic
      standing to challenge a search. However, in order to prevail, the
      defendant, as a preliminary matter, must show that he had a
      privacy interest in the area searched.

Commonwealth v. Maldonado, 14 A.3d 907, 910–911 (Pa. Super. 2011)

(internal citations omitted). We have previously determined that a defendant

may show a privacy interest in a vehicle by showing his ownership or his

registration of the vehicle or that he was using the vehicle with the

authorization or permission of the registered owner of the vehicle. Id. at 911.


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      Here, the Commonwealth charged Appellant with possessory offenses;

hence, he had automatic standing to challenge the vehicle search.

Nevertheless, to obtain relief Appellant bore the burden of establishing a

reasonable expectation of privacy in the Cadillac.         Upon review of the

suppression hearing, there was no evidence presented that the vehicle was

owned or registered to Appellant or his co-defendant. Likewise, there was no

evidence that either Appellant or his co-defendant had the authorization or

permission of the registered driver to operate the vehicle. As such, Appellant

failed to prove he had a privacy interest in the Cadillac and, therefore, the

trial court did not err in denying suppression. Hence, Appellant’s first issue is

frivolous.

      Regarding the second issue presented in the Anders brief, “[A]ppellant

contends that because police failed to apprehend the two persons with whom

[A]ppellant was observed engaging in transactions[,] the evidence was

insufficient to sustain his convictions.” Anders Brief at 24.

      We     review   claims   regarding   the   sufficiency of   the evidence by

considering whether,

      viewing all the evidence admitted at trial in the light most
      favorable to the verdict winner, there is sufficient evidence to
      enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. Further, a conviction may be sustained on
      wholly circumstantial evidence, and the trier of fact—while passing
      on the credibility of the witnesses and the weight of the evidence—
      is free to believe all, part, or none of the evidence. Because
      evidentiary       sufficiency    is     a    matter       of    law,
      our standard of review is de novo and our scope of review is
      plenary.


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Commonwealth v. Parrish, 2018 WL 2995314, at *4 (Pa. Super. 2018)

(internal citations and quotations omitted).

      Appellant was convicted of three crimes under the Controlled Substance

Act, which prohibit:

      [(a)](16) Knowingly or intentionally possessing a controlled or
      counterfeit substance by a person not registered under this act,
      or a practitioner not registered or licensed by the appropriate
      State board, unless the substance was obtained directly from, or
      pursuant to, a valid prescription order or order of a practitioner,
      or except as otherwise authorized by this act.

                          *           *            *

      [(a)](30) Except as authorized by this act, the manufacture,
      delivery, or possession with intent to manufacture or deliver, a
      controlled substance by a person not registered under this act, or
      a practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

                          *           *            *

      [(a)](32) The use of, or possession with intent to use, drug
      paraphernalia for the purpose of planting, propagating,
      cultivating, growing, harvesting, manufacturing, compounding,
      converting, producing, processing, preparing, testing, analyzing,
      packing, repacking, storing, containing, concealing, injecting,
      ingesting, inhaling or otherwise introducing into the human body
      a controlled substance in violation of this act.

35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32).

      We have previously determined:

      The Crimes Code defines the term possession as an act, within the
      meaning of this section, if the possessor knowingly procured or
      received the thing possessed or was aware of his control thereof
      for a sufficient period to have been able to terminate his
      possession. 18 Pa.C.S.A. § 301(c).


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     This Court has held that possession can be found by proving actual
     possession, constructive possession, or joint constructive
     possession. Where a defendant is not in actual possession of the
     prohibited items, the Commonwealth must establish that the
     defendant had constructive possession to support the
     conviction. Constructive possession is a legal fiction, a pragmatic
     construct to deal with the realities of criminal law enforcement.
     We have defined constructive possession as conscious dominion,
     meaning that the defendant has the power to control the
     contraband and the intent to exercise that control. To aid
     application, we have held that constructive possession may be
     established by the totality of the circumstances.

     It is well established that as with any other element of a crime,
     constructive possession may be proven by circumstantial
     evidence. In other words, the Commonwealth must establish
     facts from which the trier of fact can reasonably infer that the
     defendant exercised dominion and control over the contraband at
     issue.

     […A] defendant's mere presence at a place where contraband is
     found or secreted is insufficient, standing alone, to prove that he
     exercised dominion and control over those items. Thus, the
     location and proximity of an actor to the contraband alone is not
     conclusive of guilt. Rather, knowledge of the existence and
     location of the contraband is a necessary prerequisite to proving
     the defendant's intent to control, and, thus, his constructive
     possession.

Parrish, 2018 WL 2995314, at *4–5 (internal quotations and case citations

omitted).

     Regarding conspiracy, the Commonwealth must prove three elements:

“1) an agreement, 2) shared criminal intent, and 3) an overt act.”

Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018), citing

18 Pa.C.S.A. § 903. Moreover,

     the essence of a criminal conspiracy is a common understanding,
     no matter how it came into being, that a particular criminal


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      objective    be    accomplished.       Therefore,     a     conviction
      for conspiracy requires proof of the existence of a shared criminal
      intent. An explicit or formal agreement to commit crimes can
      seldom, if ever, be proved and it need not be, for proof of a
      criminal partnership is almost invariably extracted from the
      circumstances that attend its activities. Thus, a conspiracy may
      be inferred where it is demonstrated that the relation, conduct, or
      circumstances of the parties, and the overt acts of the
      co-conspirators sufficiently prove the formation of a criminal
      confederation. The conduct of the parties and the circumstances
      surrounding their conduct may create a web of evidence linking
      the accused to the alleged conspiracy beyond a reasonable doubt.
      Even if the conspirator did not act as a principal in committing the
      underlying crime, he is still criminally liable for the actions of his
      co-conspirators taken in furtherance of the conspiracy.

Johnson, 180 A.3d at 479 (internal citation omitted).

      Here, the Commonwealth presented evidence that Appellant engaged in

two hand-to-hand transactions as witnessed by an officer with experience in

narcotic sale arrests. Moreover, Appellant clearly exercised joint constructive

possession with his co-defendant over the black bag containing narcotics

recovered from the Cadillac. There is no dispute that both men were seen

retrieving items from that bag and that the bag ultimately contained controlled

substances. The police also recovered currency from Appellant’s person in a

search incident to his arrest.    They also recovered paraphernalia typically

utilized for the sale and delivery of narcotics, including packaging materials

and a scale. Appellant engaged with his co-defendant in selling drugs from a

common source and location. Thus, the Commonwealth proved each element

of each charged crime. As such, we discern that a challenge to the sufficiency

of evidence in this case would be frivolous.




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      Additionally, we have conducted an independent review of the entire

record as required by Anders and have not discerned any other potentially

non-frivolous issues.

      Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18




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