J-S25015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT
                                               :       OF PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ADAM LENARD SWAN                           :
                                               :
                       Appellant               :   No. 1649 MDA 2018

        Appeal from the Judgment of Sentence Entered April 27, 2018
                In the Court of Common Pleas of York County
             Criminal Division at No: CP-67-CR-0004687-2017


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                          FILED DECEMBER 09, 2019

       Appellant, Adam Lenard Swan, appeals from the judgment of sentence

entered on April 27, 2018 in the Court of Common Pleas of York County. His

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1969), as refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).1 In the brief, Appellant contends that the guilty verdicts on aggravated

assault and possession charges were against the weight of the evidence and
____________________________________________


1 Upon review of counsel’s original Anders brief, we determined the brief did
not comply with the substantive mandates of Santiago. Consequently, we
remanded for filing of a compliant brief. Counsel filed a revised brief in
accordance with our remand order and represented that he provided a copy
the brief and petition to withdraw to Appellant along with a letter dated
October 7, 2019 advising Appellant of his current filings. We offered the
Commonwealth the opportunity to respond to the amended Anders brief. By
letter of October 16, 2019, the Commonwealth indicated there were no issues
raised in the amended Anders brief warranting a response.
J-S25015-19



that the trial court erred by denying his motion to suppress.2 His counsel

concurrently filed a petition for leave to withdraw. Following review, we grant

counsel’s petition for leave to withdraw and affirm Appellant’s judgment of

sentence.

       We begin by discussing counsel’s request to withdraw, a task we must

undertake regardless of the facts and prior to any discussion of the merits of

any issues on appeal.        Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005). As this Court recognized in Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013), our Supreme Court’s decision in Santiago did

not change the procedural requirements for requesting withdrawal from

representation. As outlined in Cartrette:

       Counsel must: 1) petition the court for leave to withdraw stating
       that, after making a conscientious examination of the record,
       counsel has determined that the appeal would be frivolous;
       2) furnish a copy of the brief to the defendant; and 3) advise the
       defendant that he or she has the right to retain private counsel or
       raise additional arguments that the defendant deems worthy of
       the court’s attention.

Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009)).

____________________________________________


2 In Appellant’s post-sentence motion, appointed trial counsel Jennifer M.
Smith raised the weight of the evidence issue as well as an issue regarding
calculation of Appellant’s sentence. The trial court denied the motion by order
entered September 4, 2018, one week after the trial court entered an order
withdrawing the appointment of Attorney Smith and simultaneously
appointing current counsel William H. Graff, Jr. On October 22, 2018, Attorney
Graff filed a Rule 1925(b) statement raising the weight and suppression issues
presented in his Anders brief.

                                           -2-
J-S25015-19


       We conclude counsel has satisfied the procedural requirements set forth

in Anders. In his petition to withdraw, counsel explains his conclusion, based

on a “conscientious examination of the entire record, including all notes of

testimony, that an appeal of the lower court’s Order would be frivolous.”

Petition to Withdraw, 10/7/19, at ¶ 9.         In addition, counsel represented that

he furnished a copy of the appellate brief to Appellant and advised Appellant

of his right to retain new counsel or act on his own behalf to raise additional

arguments or points for this Court’s consideration. Id. at ¶ 11.3

       Having concluded counsel satisfied the procedural requirements of

Anders, we next ascertain whether the brief satisfied the substantive

mandates prescribed in Santiago.               In Santiago, our Supreme Court

announced:

       [I]n the Anders brief that accompanies court-appointed 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
____________________________________________


3 Appellant filed a pro se brief with this Court after counsel filed his original
brief and petition to withdraw. In that brief, Appellant asserted trial court
error regarding the motion to suppress and a miscarriage of justice with
respect to allegedly false testimony of two police officers. Appellant’s Pro Se
Brief at 28-30. In our remand order, we authorized Appellant to supplement
his pro se brief within 30 days of counsel’s revised filing. By letter received
on November 8 and docketed on November 12, 2019, Appellant represented
to this Court that he did not receive certain documents, including our
September 19, 2019 memorandum and counsel’s revised Anders brief. He
suggested counsel did not have his best interests in mind and requested that
the appeal be decided on the argument presented in his pro se brief. As
reflected below, we have considered the argument presented in that filing.



                                           -3-
J-S25015-19


      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.

      In the Anders brief, counsel included a summary of the procedural

history. Anders Brief at 7-8. While counsel did not set forth the relevant

facts in the “factual history” segment of the brief, we acknowledge he did

incorporate facts, with citations to the record, in the argument section of the

brief. Id. at 10-13. Counsel has generally satisfied the first requirement.

      The second required element of an Anders brief is to reference anything

in the record that counsel believes arguably supports the appeal. In his brief,

counsel raises two issues in two questions presented, i.e., 1) whether the

verdicts of aggravated assault and possession with intent to deliver (“PWID”)

were against the weight of the evidence, and 2) whether the trial court erred

in denying Appellant’s pre-trial motion to suppress.       Anders Brief at 6.

Counsel provides citations to the record, highlighting the testimony that could

support Appellant’s challenge to the verdicts and his challenges to the court’s

denial of his motion to suppress. Id. at 10-17. We conclude counsel has

satisfied the second Anders requirement.

      The third element of Anders requires counsel to set forth the conclusion

that the appeal is frivolous. Counsel offers that conclusion with respect to

each of the two issues presented.     The fourth element requires counsel to



                                     -4-
J-S25015-19


state his reasons for concluding that the appeal is frivolous. In his argument,

counsel has done so, with citations to case law, with respect to each of the

two issues presented.     Therefore, counsel has satisfied the substantive

requirements of Anders.

      Having determined the procedural and substantive requirements of

Anders are satisfied, we must conduct our own independent review of the

record to determine if the issues identified in this appeal are, as counsel

asserts, frivolous, or if there are any other meritorious issues present in this

case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744) (“[T]he

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.”).

      As noted above, in the Anders brief, Appellant first argues the verdicts

of guilty of aggravated assault and PWID were against the weight of the

evidence.   As the trial court recognized, “A challenge to the weight of the

evidence is directed to the discretion of the trial judge, who heard the same

evidence and who possesses only narrow authority to upset a jury verdict.”

Rule 1925(a) Opinion, 11/27/18, at 2 (quoting Commonwealth v. Sanchez,

36 A.3d 24, 27 (Pa. 2011)). Further, “[r]elief on a weight of the evidence

claim is reserved for ‘extraordinary circumstances, when the jury’s verdict is

so contrary to the evidence as to shock one’s sense of justice and the award




                                     -5-
J-S25015-19


of a new trial is imperative so that right may be given another opportunity to

prevail.” Id.

      As our Supreme Court has instructed:

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

         Appellate review of a weight claim is a review of the exercise
         of discretion, not of the underlying question of whether the
         verdict is against the weight of the evidence. Because the
         trial judge has had the opportunity to hear and see the
         evidence presented, an appellate court will give the gravest
         consideration to the findings and reasons advanced by the
         trial judge when reviewing a trial court’s determination that
         the verdict is against the weight of the evidence. One of the
         least assailable reasons for granting or denying a new trial
         is the lower court’s conviction that the verdict was or was
         not against the weight of the evidence and that a new trial
         should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted)

(quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)

(emphasis in original)).

      The trial court concluded that the evidence supported the jury’s guilty

verdict for aggravated assault.    The court noted testimony revealing that

Appellant attempted to cause bodily injury to an officer who was attempting

to place Appellant in custody for possession of marijuana. According to the

officer, Appellant grabbed the officer’s taser and attempted to deploy it in the

direction of the officer’s head.   The evidence also reflected that Appellant

possessed drugs, bags, cash and a cell phone when he was arrested.           In

addition, an expert testified that the amount of cocaine in Appellant’s

                                     -6-
J-S25015-19


possession supports a finding that Appellant possessed it with the intent to

deliver.   Moreover, Appellant admitted selling drugs.          The trial court

concluded, in light of the direct and circumstantial evidence presented by the

Commonwealth, the jury’s verdicts did not shock the court’s sense of justice.

Rule 1925(a) Opinion, 11/27/18 at 2-3. Based on our review of the record,

we find no abuse of discretion on the part of the trial court in concluding

verdicts are not against the weight of the evidence.

      Appellant also contends the trial court erred in denying his motion to

suppress. As our Supreme Court has instructed:

      [O]ur standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is limited to determining whether
      the factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. We are
      bound by the suppression court’s factual findings so long as they
      are supported by the record; our standard of review on questions
      of law is de novo. Where, as here, the defendant is appealing the
      ruling of the suppression court, we may consider only the evidence
      of the Commonwealth and so much of the evidence for the defense
      as remains uncontradicted. Our scope of review of suppression
      rulings includes only the suppression hearing record and excludes
      evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted). In its Rule 1925(a) opinion, the trial court summarized evidence,

with citations to the record, describing Appellant’s arrest.     In light of the

evidence, the court determined the initial interaction was a mere encounter

“up until the point Officer Aderhold spotted the bag of marijuana and gave the

code to Officer Pelton to take [Appellant] into custody.” Rule 1925(a) Opinion,

11/27/28, at 5. At that point, “the encounter became an arrest or ‘custodial

                                      -7-
J-S25015-19


detention’ which must be supported by probable cause.” Id. The officers had

probable cause to arrest Appellant, the court concluded, “because of the bag

of marijuana [Officer Aderhold observed] in [Appellant’s] pocket.” Id. at 6.

      Based on our review, we find the trial court’s factual findings are

supported by the record and the legal conclusions drawn from those facts are

correct. Therefore, we discern no error in the trial court’s denial of Appellant’s

motion to suppress.

      We next consider whether the record supports any non-frivolous

arguments. We note Appellant raised two issues in his pro se brief. The first,

a claim of error relating to the motion to suppress, we have addressed above.

The second is a claim that “a miscarriage of justice occurred when the

Commonwealth used false testimony of Police Officer Pelton and Police Officer

Aderhold to obtain [a] conviction.” Appellant’s Pro Se Brief, at 3. In essence,

Appellant contends the officers lied during Appellant’s suppression hearing

about the descriptions provided to them by the 9-1-1 dispatcher and that the

suppression court judge relied on that false testimony when he found the

officers had reasonable suspicion to arrest Appellant. Appellant’s Brief at 28-

30. The testimony of the officers indicates they were responding to a report

of shots fired near a school. They received descriptions of individuals in the

vicinity that included not only an individual wearing a camo sweatshirt but

also a black male wearing a black hoodie.            Appellant fit that second

description. Although that description was not included in the 9-1-1 dispatch


                                      -8-
J-S25015-19


presented at the hearing, the officers explained that there was chatter in

addition to the 9-1-1 dispatch that included the description fitting Appellant.

Appellant is not entitled to relief on this issue.

      In addition to considering the issues Appellant raised in his pro se brief,

we have reviewed the record to ascertain whether there are any non-frivolous

issues that could be raised on Appellant’s behalf. Our review has not revealed

any non-frivolous issues.

       In summary, we agree with counsel that any challenge based on

weight of the evidence or denial of Appellant’s motion to suppress is frivolous.

Our independent review of the record does not reveal any non-frivolous

arguments available to Appellant.        We therefore affirm the judgment of

sentence and grant counsel’s petition to withdraw.

      Counsel’s petition to withdraw is granted.        Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2019




                                       -9-
