J. A15045/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
LANEILL C. SIMMONS,                       :          No. 491 MDA 2017
                                          :
                        Appellant         :


           Appeal from the Judgment of Sentence, March 9, 2017,
              in the Court of Common Pleas of Luzerne County
             Criminal Division at No. CP-40-CR-0002378-2014


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 13, 2018

      Appellant, Laneill C. Simmons, appeals from the March 9, 2017

judgment of sentence following his conviction of manufacture, delivery, or

possession with intent to manufacture or deliver cocaine; tampering with

evidence; and possession of marijuana.1 The trial court appointed the Luzerne

County Public Defender’s Office as appellant’s counsel for his appeal.

Richard M. Buttner, Esq., filed a petition to withdraw on April 9, 2018, alleging




1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 4910(1), and 35 P.S. § 780-
113(a)(31), respectively. Appellant was also charged with manufacture,
delivery, or possession with intent to manufacture or deliver marijuana and
resisting arrest. 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 5104,
respectively. The Commonwealth withdrew the possession with intent to
deliver charge, and the jury acquitted appellant of resisting arrest.
J. A15045/18

that the appeal is frivolous, accompanied by an Anders brief.2 After careful

review, we grant Attorney Buttner’s withdrawal petition and affirm the

judgment of sentence.

     The trial court provided the following factual and procedural history:

           On August 20, 2014, the Luzerne County District
           Attorney filed a Criminal Information charging
           [appellant] with manufacture, delivery, or possession
           with intent to manufacture or deliver cocaine,
           manufacture, delivery, or possession with intent to
           manufacture or deliver marijuana, resisting arrest,
           tampering with evidence, and possession of
           marijuana. [Appellant] pleaded not guilty and a jury
           trial commenced on January 17, 2017.                On
           January 19, 2017, the jury returned guilty verdicts on
           Counts 1, 4, and 5. A Pre-Sentence Investigation
           (PSI) was ordered to be completed by the Luzerne
           County Adult Probation and Parole Department, and a
           sentencing hearing was scheduled for March 9, 2017.

           At the sentencing hearing, counsel for the
           Commonwealth and [appellant] were heard, and
           [appellant] made a statement on his own behalf.
           After review and consideration of the submissions of
           counsel, the statement of [appellant], and a review of
           the PSI, [the trial c]ourt sentenced [appellant] to an
           aggregate sentence of thirty-nine (39) to one hundred
           twenty (120) months[’] imprisonment in a state
           correctional facility.   Following the imposition of
           sentence,     [appellant]    was    advised   of    his
           post-sentence rights.     Defense counsel requested
           permission to withdraw, and indicated to [the trial
           c]ourt that [appellant] intended to secure a public
           defender to pursue an appeal of his sentence. The
           [trial c]ourt the[n] granted defense counsel
           permission to withdraw, and on March 20, 2017, the
           Luzerne County Public Defender’s Office approved
           [appellant’s] application for representation.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).


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          A counseled defense motion was then filed on
          March 21, 2017, seeking permission to file
          post-sentence motions nunc pro tunc. [The trial
          c]ourt lacked jurisdiction to hear the motion, however,
          because on March 16, 2017, unbeknownst to defense
          counsel, [appellant] had filed a pro se Notice of
          Appeal of his judgment of sentence. This procedural
          posture was altered on May 31, 2017, when the
          Superior Court granted a defense application for
          remand and directed [the trial c]ourt to dispose of
          [appellant’s]   motion      for   permission    to  file
          post-sentence motions nunc pro tunc. [(Per curiam
          order, 5/31/17.)] Thereafter, on June 5, 2017, we
          allowed [appellant] to file post-sentence motions
          nunc pro tunc.

          [Appellant] then filed a counseled post-sentence
          motion, which, for purposes of this appeal, raised an
          allegation that the verdict with regard to [appellant’s]
          conviction for possession with intent to deliver cocaine
          was against the weight of the evidence. [Appellant’s]
          post-sentence motion was denied by [the trial c]ourt
          on June 29, 2017.

          Subsequently, an issue arose regarding whether
          [appellant] desired continued representation by the
          Luzerne County Public Defender’s Office. At the
          direction of the Superior Court, this [c]ourt held a
          hearing on August 8, 2017, to determine whether
          [appellant] wanted to proceed pro se, or whether he
          wanted to proceed represented by Public Defender
          Attorney Amanda Young. Following that hearing,
          during which [appellant] did not waive his right to
          counsel but instead indicated that he wished to be
          represented by counsel, [the trial c]ourt ordered that
          Attorney Young and the Luzerne County Public
          Defender’s Office remain as counsel for [appellant].
          [Appellant] was then directed to file a Concise
          Statement of Errors Complained of on Appeal
          pursuant     to   Pa.R.A.P.    1925(b)      and    the
          Commonwealth was requested to respond thereto.
          [Appellant] filed a timely, counseled Rule 1925(b)
          Statement on August 31, 2017, and the


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           Commonwealth filed its response on September 25,
           2017.

Trial court opinion, 11/20/17 at 1-3 (footnotes and citations to the record

omitted). The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

November 20, 2017.

     On April 9, 2018, Attorney Buttner filed in this court a petition to

withdraw as counsel and an Anders brief, wherein Attorney Buttner states

there are no non-frivolous issues preserved for our review.

           A request by appointed counsel to withdraw pursuant
           to Anders and Santiago gives rise to certain
           requirements and obligations, for both appointed
           counsel and this Court. Commonwealth v. Flowers,
           113 A.3d 1246, 1247-48 (Pa.Super. 2015).

                 These requirements and the significant
                 protection they provide to an Anders
                 appellant arise because a criminal
                 defendant has a constitutional right to a
                 direct appeal and to counsel on that
                 appeal. Commonwealth v. Woods, 939
                 A.2d 896, 898 (Pa.Super. 2007). This
                 Court     has     summarized        these
                 requirements as follows:

                       Direct appeal counsel seeking
                       to withdraw under Anders
                       must file a petition averring
                       that, after a conscientious
                       examination of the record,
                       counsel finds the appeal to be
                       wholly frivolous.      Counsel
                       must also file an Anders brief
                       setting forth issues that might
                       arguably support the appeal
                       along with any other issues
                       necessary for the effective



                                    -4-
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                    appellate           presentation
                    thereof.

                    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.

               Woods, 939       A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise content of an Anders brief:

                    [T]he Anders brief that
                    accompanies court-appointed
                    counsel’s petition to withdraw
                    . . . 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.




                                  -5-
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           Id. at 1248. If this Court determines that appointed
           counsel has met these obligations, it is then our
           responsibility “to make a full examination of the
           proceedings and make an independent judgment to
           decide whether the appeal is in fact wholly frivolous.”
           Id. at 1248. In so doing, we review not only the
           issues identified by appointed counsel in the Anders
           brief, but examine all of the proceedings to “make
           certain that appointed counsel has not overlooked the
           existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Buttner’s petition to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of the

foregoing requirements. We note that counsel also furnished a copy of the

brief to appellant; advised him of his right to retain new counsel, proceed

pro se, or raise any additional points that he deems worthy of this court’s

attention; and attached to the Anders petition a copy of the letter sent to

appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 752

(Pa.Super. 2005) (citation omitted). See Commonwealth v. Daniels, 999

A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set

forth the new requirements for an Anders brief, which are quoted above, the

holding did not abrogate the notice requirements set forth in Millisock that

remain   binding   legal   precedent.”).   Appellant   did   not   respond   to

Attorney Buttner’s Anders brief. As Attorney Buttner has complied with all of

the requirements set forth above, we conclude that counsel has satisfied the

procedural requirements of Anders.




                                     -6-
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      Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.”   Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v.

McClendon, 434 A.2d 1185, 1187 (Pa. 1981). Thus, we now turn to the

merits of appellant’s appeal.

      Appellant raises the following issues for our review:

              1.   Whether the verdict was against the weight of
                   the evidence, specifically the charge of PWID-
                   cocaine, and whether [a]ppellant possessed the
                   contraband for personal use as opposed to
                   distribution?

              2.   Whether [a]ppellant was not tried before a jury
                   of his peers in violation of his Six [sic]
                   Amendment right?

              3.   Whether the transcript from the suppression
                   hearing of July 30, 2016 was tampered with and
                   altered in any way?

              4.   Whether     [a]ppellant   was      subject    to
                   prosecutorial misconduct?

              5.   Whether the trial court erred in failing to grant
                   [a]ppellant’s suppression motion?

              6.   Whether [a]ppellant’s sentence was harsh and
                   excessive?

Anders brief at 4.

                                       I.

      In his first issue on appeal, appellant avers that the jury’s verdict was

contrary to the weight of the evidence. Specifically, appellant contends that


                                      -7-
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his evidence was more credible and that the jury should have believed his

contention that his possession of cocaine and marijuana was for personal use

and not for distribution.     (See id. at 16.)      Our standard of review for

determining whether a verdict is compatible with the weight of the evidence

is well settled:

             A motion for a new trial based on a claim that the
             verdict is against the weight of the evidence is
             addressed to the discretion of the trial court.
             Commonwealth v. Widmer, [] 744 A.2d 745,
             751-52 (Pa. 2000); Commonwealth v. Brown, []
             648 A.2d 1177, 1189 (Pa. 1994). A new trial should
             not be granted because of a mere conflict in the
             testimony or because the judge on the same facts
             would have arrived at a different conclusion.
             Widmer, [] 744 A.2d at 752. Rather, “the role of the
             trial judge is to determine that ‘notwithstanding all the
             facts, certain facts are so clearly of greater weight that
             to ignore them or to give them equal weight with all
             the facts is to deny justice.’” Id. at 752 (citation
             omitted). It has often been stated that “a new trial
             should be awarded when the jury’s verdict is so
             contrary to the evidence as to shock one’s sense of
             justice and the award of a new trial is imperative so
             that right may be given another opportunity to
             prevail.” Brown, [] 648 A.2d at 1189.

             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. Brown, 648 A.2d at 1189.
                   Because the trial judge has had the
                   opportunity to hear and see the evidence
                   presented, an appellate court will give the


                                       -8-
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               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.       Commonwealth v.
               Farquharson, [] 354 A.2d 545 (Pa.
               1976). 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.

          Widmer, [] 744 A.2d at 753 (emphasis added).

          This does not mean that the exercise of discretion by
          the trial court in granting or denying a motion for a
          new trial based on a challenge to the weight of the
          evidence is unfettered. In describing the limits of a
          trial court’s discretion, we have explained:

               The term “discretion” imports the exercise
               of judgment, wisdom and skill so as to
               reach a dispassionate conclusion within
               the framework of the law, and is not
               exercised for the purpose of giving effect
               to the will of the judge. Discretion must
               be exercised on the foundation of reason,
               as opposed to prejudice, personal
               motivations, caprice or arbitrary actions.
               Discretion is abused where the course
               pursued represents not merely an error of
               judgment, but where the judgment is
               manifestly unreasonable or where the law
               is not applied or where the record shows
               that the action is a result of partiality,
               prejudice, bias or ill-will.

          Widmer, [] 744 A.2d at 753 (quoting Coker v. S.M.
          Flickinger Co., [] 625 A.2d 1181, 1184-85 (Pa.
          1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).



                                  -9-
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         A fact-finder is free to believe all, part, or none of the evidence

presented.      Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.

2015). This court cannot assume the task of assessing the credibility of the

witnesses or the evidence presented at trial, as that task is within the

exclusive purview of the fact-finder. Hankerson, 118 A.3d at 420.

         Appellant’s weight of the evidence argument is grounded in the theory

that the jury should have found both appellant’s own testimony and the

testimony of his expert, Ned Delaney, to be more credible. (Anders brief at

16-17.) In declining to find that the conviction was against the weight of the

evidence, the trial court found the verdict reached was not so contrary to the

evidence as to shock one’s “sense of justice.” (Trial court opinion, 11/20/17

at 5.)     We find no abuse of discretion in such a conclusion.      Accordingly,

appellant’s weight of the evidence claim is without merit.

                                         II.

         In his second issue on appeal, appellant contends that his Sixth

Amendment rights were violated because he was not tried before a jury of his

peers.      Specifically, appellant avers that he was not tried by a “fair

cross-section of his peers and the community,” and as a result, he was

deprived of his equal protection rights under the Sixth Amendment. (Anders

brief at 19.)

         Issues pertaining to the racial composition of a jury are governed by the

Supreme Court of the United States’ holding in Batson v. Kentucky, 476 U.S.



                                       - 10 -
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79 (1986.) “In Batson, the [High Court] held that a prosecutor’s challenge

to potential jurors solely on the basis of race violates the Equal Protection

Clause of the United States Constitution.” Commonwealth v. Reid, 99 A.3d

470, 484 (Pa. 2014) (citation omitted), citing Batson, 476 U.S. at 89.

      Before we can determine the merits of appellant’s Batson claim, we

must first determine whether it was properly preserved. The Pennsylvania

Rules of Appellate Procedure mandate that any issue not raised before the

lower court cannot be raised for the first time on appeal and is, therefore,

waived on appeal. Pa.R.A.P. 302(a); see also Commonwealth v. Edwards,

177 A.3d 963, 971 (Pa.Super. 2018).

      In the instant appeal, there is no record of any Batson claim being

raised before the trial court; rather, appellant is raising this issue for the first

time before this court. Accordingly, we find that appellant’s second issue is

waived on appeal.

                                       III.

      Appellant next argues that the transcript from the July 30, 2016

suppression hearing was tampered with and altered. Specifically, appellant

“maintains that the transcript from that evidentiary [] hearing was tampered

with by the [Commonwealth] and, therefore, he was deprived of a fair

suppression hearing and, therefore, a fair trial.” (Anders brief at 19.)

      Based on our review of the record, we agree with Attorney Buttner’s

following analysis of this issue:



                                      - 11 -
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           The record reflects that the trial court rendered its
           decision on the record at the suppression hearing,
           even before a transcript from the suppression hearing
           had been prepared and filed.              Therefore, it is
           impossible to see how this assertion could have
           affected the outcome of the trial court’s decision on
           whether to suppress evidence. Appellant’s private
           trial counsel reviewed this challenge with the trial
           court at the start of trial. There, trial counsel indicated
           to the trial court that he discussed it with [a]ppellant’s
           original counsel who handled the suppression hearing
           and had her review the transcript. She, in turn,
           indicated that the transcript was accurate.

           Finally regarding any prejudice that can be discerned
           from inaccuracies in the suppression transcript, the
           trial transcript reveals that the suppression transcript
           was not utilized for impeachment. Therefore, even if
           there were inaccuracies in the suppression transcript,
           that it was not utilized presents a situation absent of
           prejudice to [a]ppellant.

Anders brief at 29.

     Accordingly, we find that appellant’s third issue is without merit.

                                      IV.

     Appellant next avers that the Commonwealth engaged in prosecutorial

misconduct. Appellant specifically alleges that the Commonwealth altered the

suppression hearing transcript; that the Commonwealth “lied at a bail hearing

about his knowledge of a DUI arrest and, also, called [a]ppellant’s bondman

asking that his bail be revoked[;]” and that during closing argument, the

Commonwealth argued that appellant, “deserved to be beaten up by the police

because he was disrespectful.” (Anders brief at 19-20.)




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     When addressing claims of prosecutorial misconduct, we are governed

by the following standard of review:

           Our standard of review for a claim of prosecutorial
           misconduct is limited to whether the trial court abused
           its discretion. In considering this claim, our attention
           is focused on whether the defendant was deprived of
           a fair trial, not a perfect one. Not every inappropriate
           remark by a prosecutor constitutes reversible error. A
           prosecutor’s statements to a jury do not occur in a
           vacuum, and we must view them in context. Even if
           the prosecutor’s arguments are improper, they
           generally will not form the basis for a new trial unless
           the comments unavoidably prejudiced the jury and
           prevented a true verdict.

Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa.Super. 2013), appeal

denied, 80 A.3d 777 (Pa. 2013), quoting Commonwealth v. Lewis, 39 A.3d

341, 352 (Pa.Super. 2012), appeal denied, 51 A.3d 838 (Pa. 2012). See

also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005)

(prosecutorial misconduct does not occur unless the jurors form a fixed bias

and hostility toward the defendant based on the prosecutor’s comments).

     We shall address each of appellant’s allegations separately. Appellant’s

first allegation that the Commonwealth altered the suppression hearing

transcript was discussed in detail above.     Appellant next avers that the

Commonwealth “lied at a bail hearing about his knowledge of a DUI arrest

and, also, called [appellant’s] bondman asking that his bail be revoked.”

(Anders brief at 19-20).

     As noted by Attorney Buttner in his Anders brief, there is no indication

that the Commonwealth’s conduct relating to appellant’s bail affected the


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outcome of the trial. (See id. at 30.) Accordingly, pursuant to our supreme

court’s holding in Robinson and our court’s holding in Toritto, we find that

the trial court did not abuse its discretion, as there is no evidence of record

that the Commonwealth’s conduct produced a fixed bias or hostility against

appellant among the jurors.

      Finally,   appellant   avers   that   during   its   closing   argument,   the

Commonwealth stated that appellant “deserved to get beaten up by the police

because he was disrespectful.”       (Id. at 20.)    Putting aside that this is an

incorrect statement regarding the Commonwealth’s closing arguments, as

noted above, the Pennsylvania Rules of Appellate Procedure require that an

issue first be raised before the trial court. See Pa.R.A.P. 302(a). An objection

to prosecutorial misconduct must be raised before the trial court in order to

preserve the issue for appellate review. Commonwealth v. Tedford, 960

A.2d 1, 29 (Pa. 2008) (“Where, as here, no objection was raised, there is no

claim of ‘prosecutorial misconduct’ as such available.”).

      Upon our review of the record, appellant failed to object to the

Commonwealth’s remarks cited during closing argument.3 Accordingly, this

sub-issue is waived on appeal. Appellant’s fourth issue is without merit.




3 Appellant did make an objection to one of the Commonwealth’s remarks
during closing arguments, but that objection is not before us. (See notes of
testimony, 1/17/17 at 309.)


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                                       V.

      In his fifth issue on appeal, appellant contends that the trial court erred

when it failed to grant his motion to suppress evidence. Appellant argues that

the Commonwealth failed to establish that the police had either reasonable

suspicion or probable cause to detain him and conduct a pat-down search.

(Anders brief at 21.)

      When reviewing the denial of a motion to suppress evidence, we are

held to the following standard of review:

            [An appellate court’s] standard of review in
            addressing a challenge to the denial of a suppression
            motion is limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.             Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.            Where the
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous. Where . . . the appeal of
            the determination of the suppression court turns on
            allegations of legal error, the suppression court’s legal
            conclusions are not binding on an appellate court,
            whose duty it is to determine if the suppression court
            properly applied the law to the facts. Thus, the
            conclusions of law of the courts below are subject to
            . . . plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015), appeal

denied, 135 A.3d 584 (Pa. 2016), quoting Commonwealth v. Jones, 988




                                     - 15 -
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A.2d 649, 654 (Pa. 2010), cert. denied, 562 U.S. 832 (2010) (internal

citations and quotation marks omitted).

           “[I]t is hornbook law that the [F]ourth [A]mendment
           to the United States Constitution as well as Article I,
           § 8 of the Pennsylvania Constitution protect citizens
           from     ‘unreasonable     searches    and    seizures.’”
           Commonwealth v. Baer, [] 654 A.2d 1058, 1059
           (Pa.Super. 1994). Warrantless searches and seizures
           (such as occurred in this case) are unreasonable
           per se, unless conducted pursuant to specifically
           established and well-delineated exceptions to the
           warrant requirement. Katz v. United States, 389
           U.S. 347 [] (1967). One such exception, the Terry
           “stop and frisk,” permits a police officer to briefly
           detain a citizen for investigatory purposes if the officer
           “observes unusual conduct which leads him to
           reasonably conclude, in light of his experience, that
           criminal activity may be afoot.” Commonwealth v.
           Fitzpatrick, [] 666 A.2d 323, 325 (Pa.Super. 1995);
           Terry v. Ohio, 392 U.S. 1, 30 [] (1968).

           Terry further held that “[w]hen an officer is justified
           in believing that the individual whose suspicious
           behavior he is investigating at close range is armed
           and presently dangerous to the officer or to others”
           the officer may conduct a pat down search “to
           determine whether the person is in fact carrying a
           weapon.” Terry, 392 U.S. at 24 []. “The purpose of
           this limited search is not to discover evidence of
           crime, but to allow the officer to pursue his
           investigation without fear of violence.” Adams v.
           Williams, 407 U.S. 143, 146 [] (1972).

           In order to conduct an investigatory stop, the police
           must have reasonable suspicion that criminal activity
           is afoot. Terry, 392 U.S. at 30 []. In order to
           determine whether the police had reasonable
           suspicion, the totality of the circumstances—the whole
           picture—must be considered.          United States v.
           Cortez, 449 U.S. 411, 417 [] (1981). “Based upon
           that whole picture the detaining officers must have a
           particularized and objective basis for suspecting the


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            particular person stopped of criminal activity.” Id. at
            417-418 []. To conduct a pat down for weapons, a
            limited search or “frisk” of the suspect, the officer
            must reasonably believe that his safety or the safety
            of others is threatened. Commonwealth v. Arch, []
            654 A.2d 1141, 1144 (Pa.Super. 1995). If either the
            seizure (the initial stop) or the search (the frisk) is
            found to be unreasonable, the remedy is to exclude
            all evidence derived from the illegal government
            activity. Commonwealth v. Gibson, [] 638 A.2d
            203, 206-207 (Pa. 1994).

            The Terry totality of the circumstances test applies to
            traffic stops or roadside encounters in the same way
            that it applies to typical police encounters. See
            Commonwealth v. Mesa, [] 683 A.2d 643, 646
            (Pa.Super. 1996). Moreover, the principles of Terry
            apply to all occupants of the stopped vehicle, not just
            the driver. See id. (applying the principles of Terry
            to determine whether the police were permitted to
            conduct a pat down search of the passenger in a
            vehicle that was stopped pursuant to a motor vehicle
            violation). Indeed, as we have observed, “roadside
            encounters, between police and suspects are
            especially hazardous, and that danger may arise from
            the possible presence of weapons in the area
            surrounding a suspect.” In re O.J., 958 A.2d 561,
            564 (Pa.Super. 2008) (en banc), citing Michigan v.
            Long, 463 U.S. 1032, 1049 [] (1983).

Commonwealth v. Simmons, 17 A.3d 399, 402-403 (Pa.Super. 2011),

appeal denied, 25 A.3d 328 (Pa. 2011).

      At the conclusion of the suppression hearing, the trial court determined

that the police conducted a lawful traffic stop of the vehicle in which appellant

was a passenger, the police had reasonable suspicion to believe that criminal

activity was afoot, and that the police were justified in conducting a pat-down




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of appellant for the purposes of officer safety. (Notes of testimony, 7/30/16

at 52.)

      The   record    supports   the   trial   court’s   conclusions   through

Officer James Conmy’s testimony. Officer Conmy testified that he observed

the vehicle make a right turn without using a turn signal.         (Id. at 5.)

Officer Conmy initiated a traffic stop and, upon his approach to the vehicle,

smelled marijuana emanating from inside the vehicle. (Id. at 5-6.) As he

was speaking to the occupants of the vehicle, Officer Conmy observed

appellant making movements “consistent with someone who was either hiding

or concealing some type of contraband on his person.”             (Id. at 7.)

Officer Conmy articulated that he was concerned that appellant was

attempting to conceal a weapon. (Id.) Specifically, Officer Conmy observed

that appellant “was not keeping his hands visible. . . . [H]e was kind of

squirming or ducking down in the seat. He wasn’t displaying what I would

describe as normal behavior for a passenger.” (Id. at 8.)

      Officer Conmy’s testimony provides ample support within the record that

articulable facts existed that justified a pat-down search of appellant.   We

therefore find that the trial court did not abuse its discretion when it denied

appellant’s motion to suppress evidence. Accordingly, appellant’s fifth issue

is without merit.




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                                       VI.

      In his sixth and final issue, appellant contends that his aggregate

sentence of 39-120 months’ imprisonment was harsh and excessive.

Specifically, appellant’s challenge to the discretionary aspects of sentence is

on the grounds that the trial court failed to consider his mitigating

circumstances including battling a lengthy drug addiction and that his

possession of a controlled substance was for personal use relating to his

addiction. (See Anders brief at 27-28.)

                  [T]he proper standard of review when
                  considering whether to affirm the
                  sentencing court’s determination is an
                  abuse of discretion. . . . [A]n abuse of
                  discretion is more than a mere error of
                  judgment; thus, a sentencing court will
                  not have abused its discretion unless the
                  record discloses that the judgment
                  exercised was manifestly unreasonable,
                  or the result of partiality, prejudice, bias
                  or ill-will. In more expansive terms, our
                  Court recently offered: An abuse of
                  discretion may not be found merely
                  because an appellate court might have
                  reached a different conclusion, but
                  requires      a   result      of    manifest
                  unreasonableness,          or      partiality,
                  prejudice, bias, or ill-will, or such lack of
                  support so as to be clearly erroneous.

                  The    rationale   behind     such   broad
                  discretion    and     the    concomitantly
                  deferential standard of appellate review is
                  that the sentencing court is in the best
                  position to determine the proper penalty
                  for a particular offense based upon an
                  evaluation of the individual circumstances
                  before it.


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J. A15045/18



          [Commonwealth v.] Walls, [926 A.2d 957,] 961
          [(Pa. 2007)] (internal citations omitted).

          Challenges to the discretionary aspects of sentencing
          do not entitle an appellant to review as of right.
          Commonwealth v. Sierra, 752 A.2d 910, 912
          (Pa.Super. 2000).       An appellant challenging the
          discretionary aspects of his sentence must invoke this
          Court’s jurisdiction by satisfying a four-part test:

                [W]e conduct a four-part analysis to
                determine: (1) whether appellant has
                filed a timely notice of appeal, see
                Pa.R.A.P. 902 and 903; (2) whether the
                issue   was    properly   preserved     at
                sentencing or in a motion to reconsider
                and modify sentence, see Pa.R.Crim.P.
                [720]; (3) whether appellant’s brief has a
                fatal defect, Pa.R.A.P. 2119(f); and
                (4) whether there is a substantial
                question that the sentence appealed from
                is not appropriate under the Sentencing
                Code, 42 Pa.C.S.A. § 9781(b).

          Commonwealth v. Evans, 901 A.2d 528, 533
          (Pa.Super. 2006), appeal denied, [] 909 A.2d 303
          (Pa. 2006) (internal citations omitted). Objections to
          the discretionary aspects of a sentence are generally
          waived if they are not raised at the sentencing hearing
          or in a motion to modify the sentence imposed.
          Commonwealth v. Mann, 820 A.2d 788, 794
          (Pa.Super. 2003), appeal denied, [] 831 A.2d 599
          (Pa. 2003).

          The determination of what constitutes a substantial
          question must be evaluated on a case-by-case basis.
          Commonwealth v. Paul, 925 A.2d 825, 828
          (Pa.Super. 2007). A substantial question exists “only
          when the appellant advances a colorable argument
          that the sentencing judge’s actions were either:
          (1) inconsistent with a specific provision of the
          Sentencing Code; or (2) contrary to the fundamental



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J. A15045/18


            norms which underlie the          sentencing   process.”
            Sierra, supra at 912-13.

            As to what constitutes a substantial question, this
            Court does not accept bald assertions of sentencing
            errors. Commonwealth v. Malovich, 903 A.2d
            1247, 1252 (Pa.Super. 2006). An appellant must
            articulate the reasons the sentencing court’s actions
            violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence. First,

appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902 and 903.

Second, appellant filed a motion for reconsideration of sentence nunc pro

tunc on June 15, 2017, in which he averred that the trial court failed to

adequately consider mitigating circumstances surrounding his addiction to

controlled substances.

      The third procedural prong set forth in Evans requires us to determine

whether appellant’s brief has a fatal defect—or put another way, fails to

include a statement containing the reasons relied on for an allowance of an

appeal “with respect to the discretionary aspects of sentence.”             See

Pa.R.A.P. 2119(f). Appellant includes such a statement in his Anders brief,

in which he alleges that his sentence is excessive because the trial court failed

to adequately consider the mitigating circumstances surrounding his addiction

to controlled substances. (Anders brief at 27.)




                                     - 21 -
J. A15045/18

      Finally, we must now determine whether appellant has raised a

substantial question. We have specifically held that an averment that the trial

court failed to adequately consider mitigating circumstances does not raise a

substantial question.     Commonwealth v. Downing, 990 A.2d 788, 794

(Pa.Super. 2010), citing Commonwealth v. Matroni, 923 A.2d 444, 455

(Pa.Super. 2007), appeal denied, 952 A.2d 675 (Pa. 2008). Additionally,

the trial court had the benefit of a pre-sentence report. We therefore find that

appellant failed to raise a substantial question. Accordingly, we do not have

jurisdiction to decide appellant’s final issue on the merits.

      In sum, the record supports Attorney Buttner’s conclusion that the

appeal is frivolous. Moreover, our independent review of the entire record

reveals no additional non-frivolous issues.           Consequently, we grant

Attorney Buttner’s petition to withdraw, and we affirm the judgment of

sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/13/18




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