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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DONALD STRATTON

                        Appellant                  No. 112 EDA 2015


         Appeal from the Judgment of Sentence December 5, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002918-2010


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                        FILED MARCH 02, 2016

     Donald Stratton appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County. After our review, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

     On November 3, 2009, at approximately 2:15 p.m., Philadelphia Police

Officer Charles Kapusniak, a twelve-year member of the Narcotics Strike

Force, and Officer Joseph McCauley began surveillance in the area of the

intersection of 17th Street and Jefferson Street in Philadelphia.    Officer

Kapusniak testified that from his angle he observed a male, Eric Daniels,

approach another male, later identified as Stratton, and hand him U.S.

Currency. Officer Kapusniak then observed Stratton walk to the passenger

side of a white SUV, open the door and lean inside.       Officer Kapusniak

testified that he could see Stratton pouring small items from a white pill
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bottle into his hand, walk back to Daniels and hand the items to Daniels.

The two officers then drove up to Stratton and Daniels. They searched them

and seized $400.00 from Stratton and two Percocet pills from Daniels. After

searching the white SUV, officers retrieved a white pill bottle from the front

passenger area that contained four Percocet pills similar to those in Daniels’

possession.

        On September 10, 2014, a jury convicted Stratton of possession of a

controlled substance with intent to deliver.1 The Honorable Donna Woelpper

sentenced Stratton to two to four years’ imprisonment. Stratton’s counsel

filed a notice of appeal.       On January 8, 2015, the court issued an order

pursuant to Pa.R.A.P. 1925(b) directing Stratton to file a Concise Statement

of Errors Complained of on Appeal. Defense counsel, Shawn Page, Esquire,

failed to comply.      On March 10, 2015, Judge Woelpper filed an opinion,

concluding that Stratton had waived any claims on appeal for failing to file a

Rule 1925(b) Statement.

        On March 23, 2015, Attorney Page filed a petition to withdraw his

representation.     This Court, on March 27, 2015, issued an order granting

Attorney Page’s motion to withdraw and ordering the trial court to determine

Stratton’s eligibility for appointment of counsel.      Thereafter, the court

appointed John Belli, Esquire, to represent Stratton.    Attorney Belli filed a


____________________________________________


1
    35 P.S. § 780-113(a)(30).



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motion on May 4, 2015 seeking remand of the case and permission to file a

Rule 1925(b) Statement nunc pro tunc. See Pa.R.A.P. 1925(c)(1), (c)(3).

       On June 3, 2015, this Court granted the petition for remand.

       On June 15, 2015, Attorney Belli filed a nunc pro tunc Rule 1925(b)

Statement, indicating, pursuant to Pa.R.A.P. 1925(c)(4), his intent to file a

motion to withdraw pursuant to Anders,2 and stating that Stratton wished

to raise a weight of the evidence claim. On June 21, 2015, Judge Woelpper

filed her opinion, concluding that the weight issue was waived because it

was not raised post-trial before the court or in a post-sentence motion.

See Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003);

Pa.R.Crim.P. 607(A).        This appeal followed. On August 24, 2015, counsel

filed an Anders brief as well as a motion to withdraw.

       In order to withdraw pursuant to Anders and McClendon, counsel

must: 1) petition the Court for leave to withdraw, certifying that after a

thorough review of the record, counsel has concluded the issues to be raised

are wholly frivolous; 2) file a brief referring to anything in the record that

might arguably support an appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of


____________________________________________


2
 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981) and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).



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review.      Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court held that, in order to withdraw under Anders,

counsel must also state his reasons for concluding his client’s appeal is

frivolous.

      Here, counsel’s petition states that he has examined the record and

concluded the appeal is wholly frivolous. Counsel states that he has provided

Stratton with a copy of the brief and a letter explaining Stratton’s right to

proceed pro se, or with newly retained counsel, and to raise any other issues

he believes might have merit. See Petition to Withdraw, 8/24/15, at 2.

Counsel has also filed a brief in which he repeats his assertion that there are

no non-frivolous issues to be raised.   See Anders brief, 8/24/15, at 7-13.

Accordingly, we find that counsel has substantially complied with the

procedural requirements for withdrawal.     We now review the issue raised in

the Anders brief:

          Whether the verdict was against the weight of the
          evidence because the testimony given by two police
          officers was contradictory with regard to whether money
          and drugs were exchanged between [Stratton] and the
          alleged buyer and regarding which officer was driving the
          day of the incident?

       A weight of the evidence claim concedes that the evidence is sufficient

to sustain the verdict, but seeks a new trial on the ground that the evidence

was so one-sided or so weighted in favor of acquittal that a guilty verdict

shocks one’s sense of justice. Commonwealth v. Widmer, 744 A.2d 745,

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751–52 (Pa. 2000). When reviewing a weight of the evidence claim, we do

not substitute our judgment for the finder of fact and consider the

underlying question of whether the verdict is against the weight of the

evidence, but, rather, we determine only whether the trial court abused its

discretion in making its determination. Id., 744 A.2d at 753; see also

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013).

      As noted above, the trial court found this issue waived.         Moreover,

based on our independent review of the record, we find no merit to

Stratton’s challenge to the weight of the evidence.          Stratton claims the

verdict shocks the conscience because only Officer Kapusniak saw the

transaction and the officers’ testimony differs with respect to which officer

was driving when the exchange occurred. N.T. 9/9/14, at 66; N.T. 9/10/14,

at 26).    We cannot agree that these minor inconsistencies render the

testimony of these witnesses so unreliable as to make the verdict one based

upon surmise or conjecture.       In fact, the arrest occurred five years prior to

trial, and Officer Kapusniak acknowledged that he did not recall who was

driving at the time. N.T. 9/9/14, at 66. See Commonwealth v. Hamilton,

546 A.2d 90 (Pa. Super. 1988). See also Commonwealth v. Stokes, 78

A.3d 644, 651 (Pa. Super. 2013) (minor inconsistencies in testimony are for

jury to resolve).

      Based upon the foregoing, we find Stratton’s weight of the evidence

claim meritless. We, therefore, affirm the judgment of sentence and grant

counsel’s petition to withdraw.

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     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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