J-S05038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSE DOLORES SOLORZANO-ROJAS,

                            Appellant                   No. 670 MDA 2015


            Appeal from the Judgment of Sentence October 27, 2014
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0004370-2008


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED FEBRUARY 03, 2016

        Appellant, Jose Dolores Solorzano-Rojas, appeals nunc pro tunc from

the judgment of sentence imposed following his jury conviction in his second

trial of three counts of delivery of a controlled substance and two counts of

possession with intent to deliver a controlled substance (PWID). 1     Counsel

for Appellant has petitioned to withdraw on the ground that his issue on

appeal is wholly frivolous.2        We grant counsel’s petition to withdraw and

affirm the judgment of sentence.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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     We    take   the   following   facts   and   procedural   history   from   our

independent review of the record, including notes of testimony from

Appellant’s August 12-15, 2014 jury trial.        In May of 2008, Pennsylvania

State Police Trooper Christopher Keppel led an undercover drug distribution

investigation focused on Appellant, and he executed a series of controlled

buys of cocaine and marijuana through a confidential informant (CI).            On

May 9, 2008, the CI arranged to purchase 3.5 grams of cocaine and a

quarter pound of marijuana from Appellant for $700.00. Trooper Keppel and

the CI drove to a Blockbuster parking lot as Appellant instructed, and

Appellant parked his white Acura one parking space away from them. The

CI entered the passenger side of Appellant’s vehicle, and Trooper Keppel

observed Appellant give the CI a package in exchange for money. The CI

immediately re-entered Trooper Keppel’s vehicle and the trooper took

custody of the package of drugs.

     On May 14, 2008, the CI arranged to purchase fourteen grams of

cocaine from Appellant for $720.00. Trooper Keppel and the CI again went

to an agreed-upon parking lot, and Appellant parked his white Acura directly

behind the trooper’s vehicle.       The CI entered Appellant’s vehicle, and

exchanged money for cocaine.         The CI immediately returned to Trooper

Keppel’s vehicle and the trooper took custody of the drugs.

     On May 20, 2008, the CI arranged to purchase a quarter pound of

marijuana from Appellant for $350.00. Trooper Keppel and the CI drove to

the agreed-upon parking lot and pulled into the parking space next to

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Appellant’s Acura. After the CI and Appellant completed the transaction in

the Acura, the CI returned to Trooper Keppel’s vehicle and gave him the

drugs.

       On May 21, 2008, based on the controlled buys, police obtained a

search warrant for the house where they believed Appellant resided—927-

1/2 Carlisle Street, which is located approximately two blocks from where

the controlled buys occurred.3 Trooper Keppel instructed the CI to arrange a

final drug purchase from Appellant of three ounces of cocaine, and he

planned to arrest Appellant before the transaction was executed.    Trooper

Keppel and the CI arrived at the pre-arranged parking lot and Appellant

parked his Acura one space away from them. Pursuant to Trooper Keppel’s

instructions, the CI approached Appellant’s vehicle, and nodded his head to

indicate that the drugs were inside. Trooper Keppel then signaled his team

to arrest Appellant. Appellant exited his vehicle, shoved the CI, and threw

an item from his person before the officers took him into custody. Trooper

Keppel recovered the item thrown by Appellant, a bag of cocaine, in the

immediate vicinity. Police then proceeded with Appellant to 927-1/2 Carlisle

Street to execute the search warrant.




____________________________________________


3
  Police checked township records to confirm that this was Appellant’s
address. (See N.T. Trial, 8/13/14, at 172-73).



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        After police secured the residence, they brought Appellant into the

kitchen, and advised him of his Miranda4 rights. Appellant admitted that he

lived at the residence with his wife and three children. Police found various

items bearing Appellant’s name, including photocopies of his driver’s license,

bills, checks, and an insurance policy cover sheet throughout the residence. 5

Police also recovered the following items from the residence: a digital scale;

three boxes of sandwich bags; a bag of small Ziploc bags; a bag of corner

bags; a bottle of inositol;6 110 grams of cocaine; a small bag of marijuana;

six packaged sums of cash, in the amounts of $1,004.00, $2,000.00,

$2,000.00, $2,000.00, $1,000.00, and $1,000.00.           Some of the serial

numbers on the currency recovered from the residence matched the serial

numbers on the official funds used during the May 20, 2008 controlled buy.

        On May 4, 2009, Appellant proceeded to a jury trial, and the jury

found him guilty of various drug-related offenses.     On July 27, 2009, the

trial court sentenced him to an aggregate term of not less than seven nor

more than fourteen years’ incarceration.         On direct appeal, this Court
____________________________________________


4
    Miranda v. Arizona, 384 U.S. 436 (1966).
5
  The residence is a double house and the address of the adjoining residence
is 972 Carlisle Street. (See N.T. Trial, 8/13/14, at 165). Some of the items
recovered from 972-1/2 Carlisle Street bearing Appellant’s name listed the
address of the adjoining residence, 972 Carlisle Street, instead of 972-1/2
Carlisle Street. (See id. at 171-72).
6
 Inositol is a vitamin supplement used as a cutting agent for cocaine. (See
N.T. Trial, 8/14/14, at 256).



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vacated the judgment of sentence and remanded for a new trial.          (See

Commonwealth v. Solorzano-Rojas, No. 35 MDA 2010, unpublished

memorandum at *1, *10 (Pa. Super. filed Sept. 14, 2010)).7               The

Pennsylvania Supreme Court denied the Commonwealth’s petition for

allowance of appeal on March 27, 2013.           (See Commonwealth v.

Solorzano-Rojas, 63 A.3d 1247 (Pa. 2013)).

       On August 12, 2014, Appellant proceeded to a second jury trial, and

the jury convicted him of the above-stated offenses. On October 27, 2014,

the trial court sentenced Appellant to an aggregate term of not less than

seven nor more than fourteen years’ incarceration, in accordance with the

mandatory minimum sentence requirements for drug trafficking. On March

16, 2015, following Appellant’s timely filing of a post-sentence motion and a

hearing, the court entered an order re-sentencing him without application of

the mandatory minimum provisions,8 to an aggregate term of not less four

and one half nor more than nine years’ incarceration.    On April 16, 2015,

one day after the appeal period expired, Appellant simultaneously filed a
____________________________________________


7
  This Court’s disposition was based on its conclusion that the trial court
failed to take sufficient protective measures to ensure the integrity of the
jury’s function after an alternate juror was impaneled during jury
deliberations. (See id. at *7, *9-10).
8
  See Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014),
appeal denied, 121 A.3d 494 (Pa. 2015) (holding mandatory minimum
sentencing statute relating to drug trafficking unconstitutional in light of
Alleyne v. United States, 133 S.Ct. 2151 (2013)).




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petition to file a notice of appeal nunc pro tunc and a notice of appeal. On

April 17, 2015, the trial court entered an order granting the petition and

accepting the notice of appeal as timely.9

       On August 10, 2015, counsel filed an Anders brief and a petition to

withdraw as counsel stating his belief that there are no non-frivolous issues

to raise on appeal.        (See Petition to Withdraw as Counsel, 8/10/15, at

unnumbered page 1 ¶ 3).           Counsel submitted to this Court a copy of his

letter to Appellant, enclosing a copy of the Anders brief. (See Letter from

Anthony J. Tambourino, Esq. to Appellant, 8/10/15, at unnumbered page 1).

Appellant has not responded.

       [I]n 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, supra at 361.

           Anders counsel must also provide a copy of the Anders
       petition and brief to the appellant, advising the appellant of the
       right to retain new counsel, proceed pro se or raise any
       additional points worthy of this Court’s attention.

____________________________________________


9
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on June 8, 2015. The trial
court filed an opinion on June 24, 2015. See Pa.R.A.P. 1925.



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           If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel to either comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).

      In the instant case, counsel has complied with the Anders and

Santiago requirements.      He has submitted a brief that summarizes the

case, (see Anders Brief, at 5-9); referred to anything that might arguably

support the appeal, (see id. at 10-13); and set forth his reasoning and

conclusion that the appeal is frivolous, (see id. at 13-14). See Santiago,

supra at 361. Counsel has sent Appellant a letter enclosing a copy of the

Anders brief and petition to withdraw, and notifying him of his right to

retain new counsel or proceed pro se. Because counsel’s petition and brief

satisfy the requirements of Anders and Santiago, we will undertake our

own review of the appeal to determine if it is wholly frivolous.               See

O’Malley, supra at 1266.

      The Anders brief raises one issue for our review: “Whether the

Commonwealth failed to present sufficient evidence in order to convict

Appellant beyond a reasonable doubt of possession with intent to deliver,

because   the   Commonwealth      failed   to   prove   Appellant   actually    or


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constructively possessed the drugs found in 972-1/2 Carlisle Street?”

(Anders Brief, at 4) (some capitalization omitted).      This issue does not

merit relief.

             The standard we apply in reviewing the sufficiency of the
      evidence is 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. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015)

(citations omitted).

      The Controlled Substance, Drug, Device and Cosmetic Act defines the

crime of PWID as follows:

      (a)       The following acts and the causing thereof within the
                Commonwealth are hereby prohibited:

                                   *    *    *

            (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

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      State board, or knowingly creating, delivering or possessing with
      intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

      In the instant case, Appellant challenges the element of possession,

arguing that the Commonwealth failed to establish his actual or constructive

possession of the drugs recovered from 972-1/2 Carlisle Street.                 (See

Anders Brief, at 11).       Appellant denies that he resided at the 972-1/2

Carlisle Street address, and points out that the many of the items police

found bearing his name list his address as 972 Carlisle Street, not 972-1/2

Carlisle Street. (See id. at 13). This issue lacks merit.

      We begin by observing that because Appellant was not in physical

possession of the drugs recovered from 972-1/2 Carlisle Street, the

Commonwealth      was     required   to    establish   that   he   had   constructive

possession of them.       See Commonwealth v. Brown, 48 A.3d 426, 430

(Pa. Super. 2012), appeal denied, 63 A.3d 1243 (Pa. 2013).

      Constructive possession is a legal fiction, a pragmatic construct
      to deal with the realities of criminal law enforcement.
      Constructive possession is an inference arising from a set of
      facts that possession of the contraband was more likely than not.
      We have defined constructive possession as “conscious
      dominion.” We subsequently defined “conscious dominion” as
      “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.

Id. (citation omitted).

      Here, prior to executing the search warrant, police checked township

records to confirm that 972-1/2 Carlisle Street was Appellant’s address.

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(See N.T. Trial, 8/13/14, at 172-73). Trooper Keppel testified that, when he

brought Appellant to 972-1/2 Carlisle Street, Appellant admitted that he

lived at the residence with his wife and children.        (See id. at 141-42).

Trooper Keppel further testified that numerous documents and paperwork

bearing Appellant’s name were found throughout the residence. (See id. at

152, 171-72, 179-80).      The trooper indicated that, although some of the

items bearing Appellant’s name listed the address of the adjoining residence,

972 Carlisle Street, instead of 972-1/2 Carlisle Street, all of these items

were found in the 972-1/2 residence.            (See id. at 171, 179-80).     In

addition, after the search, police traced some of the cash recovered from

972-1/2 to the currency used during one of the controlled buys, thereby

further linking Appellant to that residence. (See id. at 153-54, 177).

        In contrast, Appellant testified that he resided at 972 Carlisle Street,

and not at the 972-1/2 Carlisle Street residence where the drugs and items

related to drug trafficking were found.        (See N.T. Trial, 8/14/14, at 293,

297-98). He stated that, although he sometimes visited friends at the 972-

1/2 residence, he did not keep any items or paperwork there. (See id. at

293).     When questioned by the Commonwealth about Trooper Keppel’s

testimony to the contrary, Appellant averred that the trooper was lying

about where the items bearing his name were found. (See id. at 295-98).

        Based on the totality of the circumstances, and viewing the evidence in

the light most favorable to the Commonwealth as we must under our

standard of review, we conclude that there was ample evidence to support

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the   jury’s   determination    that   Appellant    constructively   possessed   the

narcotics found at 972-1/2 Carlisle Street. See Giordano, supra at 1002;

Brown, supra at 430.           The evidence presented by the Commonwealth

established that Appellant was selling drugs and that he resided at 972-1/2

Carlisle Street, where a significant amount of cocaine and various items used

in drug trafficking were found. The jury did not find Appellant’s testimony

regarding his residence credible, and it, as finder of fact, was “free to believe

all, part or none of the evidence.” Giordano, supra at 1003. Accordingly,

Appellant’s issue on appeal does not merit relief.             Furthermore, after

independent review, we determine that there are no other non-frivolous

bases for appeal, and this appeal is “wholly frivolous.” O’Malley, supra at

1266.

        Judgment of sentence affirmed.           Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




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