J-S37021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ERNEST ALLEN ROSEMOND

                            Appellant                        No. 1847 MDA 2016


             Appeal from the Judgment of Sentence October 24, 2016
                In the Court of Common Pleas of Schuylkill County
               Criminal Division at No(s): CP-54-CR-0001175-2016


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

MEMORANDUM BY MOULTON, J.:                           FILED NOVEMBER 09, 2017

       Ernest Allen Rosemond appeals from the October 24, 2016 judgment

of sentence entered in the Schuylkill County Court of Common Pleas

following his jury trial convictions for possession of contraband by an inmate

(controlled     substance)     and     possession   of   a    controlled   substance.1

Rosemond’s counsel has filed an Anders2 brief and an application to

withdraw as counsel.          We affirm the judgment of sentence and grant

counsel’s application to withdraw.

       The trial court set forth the following factual history:

            [Rosemond] was brought to [the] Schuylkill County Prison
            as an arrestee by Pottsville Police [at] about 6:30 p.m. on
____________________________________________


       1   18 Pa.C.S. § 5123(a.2) and 35 P.S. § 780-113(a)(16), respectively.

       2   Anders v. California, 386 U.S. 738 (1967).
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       May 13, 2016. Upon arrival at the prison, [Rosemond]
       was asked a number of questions by Schuylkill County
       Prison Second Shift Lieutenant Juan Escalante during initial
       processing, including whether he had any drugs on or in
       his person. Escalante warned [Rosemond] that if he had
       drugs and did not reveal the possession at that time, he
       would be subject to a state prison sentence if he was later
       found to possess such substances after having been
       processed and becoming an inmate.

           After [Rosemond] told Escalante that he had no drugs
       and finished being processed, he was taken into custody
       by the prison. [Rosemond] was assigned a cell and taken
       to a clean room by Corrections Officers Ryan Fritzinger and
       Cody Symons to be searched and to change into prison
       garb. The small room where he was taken was about the
       size of a closet, well-lit[,] and completely empty with the
       exception of a height chart on the wall.             There,
       [Rosemond] was directed to and did remove one article of
       clothing at a time and handed each to an officer to be
       searched. While [Rosemond] was bent over in the process
       of removing his socks, a small package fell from what
       Fritzinger believed was either [Rosemond]’s sock or waist[-
       ]band. Fritzinger had no doubt that the package had come
       from [Rosemond].

          Symons was present with Fritzinger at the doorway of
       the small room while [Rosemond] was removing his
       clothing. Symons saw a small bag containing a powdery
       substance fall from [Rosemond]’s waist[-]band or socks as
       [Rosemond] was removing his socks. After the bag fell to
       the floor, [Rosemond] was ordered to step back, the item
       was secured[,] and Escalante was notified by radio.
       [Rosemond] told the officers that he did not know what the
       package was, where it came from[,] and that it was not
       his. The package was recovered by Escalante who later
       transferred it to Officer Samson Wega of the Pottsville
       Bureau of Police.

          The package was subsequently taken by Pottsville Police
       Detective Kirk Becker to the Pennsylvania State Police
       crime laboratory where it was analyzed by forensic
       scientist Kristy Bruno. Bruno found the contents of the
       package consisted of approximately .19 grams of
       methamphetamine.

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Opinion and Order of Court Pursuant to Pa.R.A.P. 1925, 12/9/16, at 2-3.

     On     October   17,   2016,   a    jury   convicted   Rosemond    of   the

aforementioned offenses.    On October 24, 2016, the trial court sentenced

Rosemond to 2 to 5 years’ incarceration, followed by 2 years’ probation on

the conviction for possession of contraband by an inmate (controlled

substance); the conviction for possession of a controlled substance merged

with the other conviction. On November 10, 2016, Rosemond timely filed a

notice of appeal.     On February 16, 2017, Rosemond’s counsel filed an

application to withdraw as counsel and an Anders brief.

     Because counsel has filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), we must address counsel’s petition before reviewing the

merits of Rosemond’s underlying claim. Commonwealth v. Goodwin, 928

A.2d 287, 290 (Pa.Super. 2007). We first address whether counsel’s petition

to withdraw satisfies the procedural requirements of Anders.             To be

permitted to withdraw, 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.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc).



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       Here, counsel stated she has reviewed the record and “determined

there are no grounds for appeal.”              Counsel’s Ltr. to Rosemond, 2/16/17

(“February Letter”).       Counsel furnished a copy of the Anders brief to

Rosemond. See id.

       Counsel’s February 16, 2017 letter3 to Rosemond, however, advised

him that “[s]hould [this] Court grant [her] [p]etition to [w]ithdraw as

[c]ounsel,” Rosemond had the right to proceed pro se or with private

counsel.    Counsel’s statement of the law is incorrect, as appellants faced

with a petition to withdraw have an “absolute right to proceed pro se or with

privately retained counsel” that is not dependent on the trial court’s ruling

on the petition to withdraw.         Commonwealth v. Bynum-Hamilton, 135

A.3d 179, 184 (Pa.Super. 2016). However, on March 13, 2017, this Court

issued an order permitting Rosemond “to file a response to counsel’s petition

to withdraw and Anders brief, either pro se or via privately retained

counsel, within thirty (30) days of the date of [the] Order[.]”        See Order,

____________________________________________


       3Initially, counsel did not aver in her application to withdraw that she
had sent a letter to Rosemond advising him of his right to proceed pro se or
with privately-retained counsel, nor did she attach a copy of any such letter
to her application to withdraw filed with this Court. On February 23, 2017,
this Court issued an order directing counsel to “notify [Rosemond] with a
proper statement advising [him] as required by [Commonwealth v.]
Millisock,” 873 A.2d 748 (Pa.Super. 2005), of his right to proceed pro se or
with a private attorney. See Order, 2/23/16. On March 3, 2017, counsel
advised this Court that on February 16, 2017, she had sent such a letter to
Rosemond along with copies of the application to withdraw and Anders
brief, and sent this Court a copy of that letter.



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3/13/17. Because this Court ensured that Rosemond understood his rights

and was given an opportunity to raise any other issues before this Court, we

conclude that the third procedural requirement has been met and,

accordingly,   counsel   has    substantially   complied   with   the   procedural

requirements of Anders.

     We     next   address     whether    counsel’s   Anders   brief    meets   the

requirements established by the Pennsylvania Supreme Court in Santiago.

The brief 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.

     Counsel’s brief provided a summary of the procedural history and the

facts with appropriate citations to the record.            Anders Br. at 8-10.

Counsel’s brief states that she reviewed the record and determined that any

appeal would be frivolous, and set forth her reasons for that conclusion. Id.

at 11-12.      Accordingly, counsel has substantially complied with the

requirements of Anders and Santiago.

     Rosemond has not filed a pro se brief or a counseled brief with new,

privately-retained counsel, but he did file a pro se response to counsel’s

petition to withdraw.    In that response, Rosemond raised the same claim

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raised in the Anders brief and argues that counsel should not be allowed to

withdraw from representation. Accordingly, we review the lone issue raised

in the Anders brief and in Rosemond’s pro se response:           “Whether the

testimony and reports of corrections officers and police are so conflicting and

different as to render [the] same insufficient to support the jury’s guilty

verdict?” Anders Br. at 7.

      Rosemond purports to raise a challenge to the sufficiency of the

evidence.   However, inconsistencies and conflicts in testimony go to the

weight, not the sufficiency, of the evidence.        See Commonwealth v.

Trinidad, 96 A.3d 1031, 1038 (Pa.Super. 2014).

      To the extent that Rosemond argues that the verdict was against the

weight of the evidence, we conclude that Rosemond has waived this claim.

Pennsylvania Rule of Criminal Procedure 607(A) sets forth the requirements

for preserving a weight of the evidence challenge:

         (A) A claim that the verdict was against the weight of the
         evidence shall be raised with the trial judge in a motion for
         a new trial:

            (1) orally, on the record, at any time before sentencing;

            (2) by written motion at any time before sentencing; or

            (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A). Here, the record shows that Rosemond did not file a

written motion, before or after sentencing, challenging the weight of the

evidence.




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      To the extent that Rosemond challenges the sufficiency of the

Commonwealth’s evidence, we conclude that this claim is meritless.          Our

standard of review for a sufficiency of the evidence claim is as follows:

             We must determine whether the evidence admitted at
         trial, and all reasonable inferences drawn therefrom, when
         viewed in a light most favorable to the Commonwealth as
         verdict winner, support the conviction beyond a reasonable
         doubt. Where there is sufficient evidence to enable the
         trier of fact to find every element of the crime has been
         established beyond a reasonable doubt, the sufficiency of
         the evidence claim must fail.

            The evidence established at trial need not preclude
         every possibility of innocence and the fact-finder is free to
         believe all, part, or none of the evidence presented. It is
         not within the province of this Court to re-weigh the
         evidence and substitute our judgment for that of the fact-
         finder.   The Commonwealth’s burden may be met by
         wholly circumstantial evidence and any doubt about the
         defendant’s guilt is to be resolved by the fact[-]finder
         unless the evidence is so weak and inconclusive that, as a
         matter of law, no probability of fact can be drawn from the
         combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      Section 780-113(a)(16) of the Controlled Substance, Drug, Device,

and Cosmetic Act (“Act”) prohibits

         [k]nowingly 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.

35 P.S. § 780-113(a)(16).


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      An inmate may be convicted of possessing contraband, specifically a

controlled substance, “if he unlawfully has in his possession or under his

control any controlled substance in violation of section 13(a)(16) of [the

Act].” 18 Pa.C.S. § 5123(a.2).

      Rosemond argues that conflicts and inconsistencies in the corrections

officers’ testimony render the evidence insufficient. We disagree. It is well

settled that “[a] mere conflict in the testimony does not render the evidence

insufficient because it is within the province of the fact[-]finder to determine

the weight to be given to the testimony and to believe all, part, or none of

the evidence.”   Commonwealth v. Halye, 719 A.2d 763, 764 (Pa.Super.

1998) (internal citation omitted).

      Further, viewing the evidence in the light most favorable to the

Commonwealth, it is clear that the evidence was sufficient to convict

Rosemond.     Rosemond was booked into jail on an offense in a different

criminal case. During processing, the corrections officers took Rosemond to

a room and asked him to remove his clothing. When Rosemond removed his

clothing, a small bag containing a powdery substance dropped onto the

floor. The corrections officers testified that there was nothing on the floor of

the room in which they placed Rosemond before entering.            Subsequent

testing of the powdery substance confirmed that it was methamphetamine, a

controlled substance under the Act that Rosemond was not permitted to

possess. Accordingly, Rosemond’s claim is without merit.




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     Judgment of sentence affirmed.   Application to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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