J-S39042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    ADDAN PAYNE                                :
                                               :
                       Appellant               :     No. 2675 EDA 2018

         Appeal from the Judgment of Sentence Entered August 16, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006665-2015


BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED AUGUST 19, 2019

       Appellant, Addan Payne, appealed from a March 9, 2016, judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction at a bench trial on the charges of possession with the

intent to deliver a controlled substance (“PWID”), conspiracy (to commit

PWID), and possession of a controlled substance (“possession”).1 On May 8,

2018, a three-judge panel of this Court affirmed Appellant’s convictions, but

vacated    the    judgment     of   sentence   and    remanded   for   resentencing.

Specifically, this Court concluded the trial court failed to properly merge

Appellant’s convictions for PWID and possession for sentencing purposes.




____________________________________________


1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, and 35 P.S. § 780-
113(a)(16), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      On August 16, 2018, the trial court imposed a new judgment of

sentence, and Appellant filed the instant appeal.     Additionally, Appellant’s

counsel has filed a petition seeking to withdraw her representation, as well as

a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),

and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009)

(hereinafter “Anders brief”).     After a careful review, we grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.

      The relevant facts and procedural history have been set forth previously

by this Court, in part, as follows:

            On December 16, 2015, the Honorable Vincent Melchiorre
      presided over Appellant’s bench trial. During the trial, the
      Commonwealth called Officer Keya Mason to testify. Officer
      Mason testified that she has nineteen years of experience in drug
      cases and the last two of those years she has been with the
      Narcotics Enforcement Team (NET Team). N.T., 12/16/15, at 10.
      She testified that on the evening of April 3, 2015, she was part of
      the NET Team conducting surveillance in the area of the 4200
      block of Odgen Street. Id. at 9-10. Officer Mason stated that she
      observed Appellant wearing a gray-hooded jacket, red pants, and
      red sneakers. Id. at 11. Officer Mason continued that Appellant
      was accompanied by a female, later identified as Shirley Stevens,
      who was wearing a blue jean jacket, green cargo pants, and a
      white scarf. Id.
            Officer Mason testified that she was located approximately
      one city block away, had a clear and unobstructed view, and was
      using binoculars. Id. at 12, 21. She further testified that
      streetlights illuminated the area where Appellant was located. Id.
      at 44-45. During her surveillance, Officer Mason observed a black
      male, later identified as Albert Tomlin, riding a motorized scooter.
      Id. at 14. Tomlin rode up to the middle of the street where
      Stevens approached him, they had a brief conversation, and
      Tomlin gave Stevens an unknown amount of U.S. currency. Id.
      Stevens then walked over to Appellant and gave him the money.
      Id. at 15. Appellant proceeded to walk into an alleyway for
      approximately thirty seconds and when he returned, he handed

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       small items to Stevens. Id. Stevens then went back to Tomlin
       and gave him the small items. Id. at 16. Tomlin then left. Id.
       Officer Mason relayed this information to backup officers who
       stopped Tomlin and recovered two green-tinted heat-sealed Ziploc
       packets of crack cocaine. Id. at 16-17.
              Officer Mason continued her surveillance and observed a
       white pick-up truck arrive at the location where Appellant and
       Stevens were. Id. at 17. Officer Mason testified that, this time,
       Appellant approached the passenger in the pick-up truck, later
       identified as Patrick Kim. Id. Kim extended his hand out the
       window and gave Appellant U.S. currency. Id. Appellant walked
       into the same alleyway and upon returning, handed small items
       to Kim. Id. at 19. Officer Mason relayed this information to her
       backup officers, who stopped the vehicle and recovered from the
       driver, Kelly Wilson, three clear heat-sealed Ziploc packets
       containing crack cocaine. Id.
              Officer Mason testified that after these two transactions, she
       notified her backup officers to arrest Appellant. Id. at 20. Officer
       Nicholas Martella arrested Appellant and recovered $348 from
       different pockets. Id. The backup officers also searched the
       alleyway where Appellant had twice entered but could not find
       anything. Id. No narcotics were recovered from Appellant. Id.
       at 43.
              The Commonwealth also called Officer Daniel Mammola and
       Officer Patrick DiDomenico to testify. Officer Mammola testified
       that he was that officer that stopped Tomlin and retrieved from
       him two green-tined heat-sealed Ziploc packets of crack cocaine.
       Id. at 50. Officer DiDomenico testified that he arrested Wilson
       and Kim. Id. at 54. He testified that, from Wilson’s hand, he
       recovered three clear heat-sealed Ziploc packets containing crack
       cocaine. Id. The officer did not testify that he recovered drugs
       from Kim. Officer Martella, who was also called to testify, stated
       that he conducted field testing, a NIK-G test, on the drugs. Id.
       at 61.
             Judge Melchiorre convicted Appellant as charged. On March
       9, 2016, the trial court[2] sentenced Appellant to two to four years’
       incarceration for PWID and a concurrent two to four years’
       incarceration for conspiracy to commit PWID. The trial court
____________________________________________


2 Since Judge Melchiorre was absent from the bench at the time of sentencing,
the Honorable Mia Perez presided over Appellant’s March 9, 2016, sentencing
hearing.

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     further imposed a consecutive two years’ probation for Appellant’s
     conviction for possession of a controlled substance.
           On March 16, 2016, Appellant filed his post-sentence motion
     for reconsideration, claiming that his sentence was excessive.
     See Motion for Reconsideration, 3/16/16. The docket indicates
     that Appellant filed a motion to withdraw his post-sentence motion
     for reconsideration, which the trial court granted on April 18,
     2016. See Docket at 8.
           On April 27, 2016, Appellant filed a timely notice of appeal.

Commonwealth v. Payne, No. 1347 EDA 2016, *2-4 (filed 5/8/18)

(unpublished memorandum) (footnote omitted) (footnote added).

     On appeal, a panel of this Court rejected Appellant’s challenges to his

convictions; however, the panel sua sponte determined the trial court failed

to merge the convictions for PWID and possession for sentencing purposes.

Thus, this Court vacated the March 9, 2016, judgment of sentence and

remanded for resentencing.

     On August 16, 2018, Appellant proceeded to a new sentencing hearing

at which Judge Perez acknowledged this Court had vacated the previous

sentence and remanded for resentencing. N.T., 8/16/18, at 4. The trial court

indicated it had the original presentence investigation report.     Id. at 5.

Appellant’s counsel indicated she wished to elaborate on the presentence

investigation report as it related to Appellant’s experience when he was a

minor in the foster care system. Id. She noted Appellant was sexually abused

by one of his foster mothers. Id.

     Appellant’s counsel also noted that, at some point during Appellant’s

incarceration, Appellant was diagnosed with major depressive disorder and

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post-traumatic stress with dissociative symptoms, and accordingly, prison

physicians placed Appellant on various treatment medications. Id. at 5-6.

Appellant’s counsel noted that, aside from medications, Appellant was not

receiving necessary mental health treatment from prison officials. Id. at 6.

Appellant’s counsel requested an aggregate sentence of 11.5 months to 23

months in prison, plus three years of reporting probation. Id. at 10.

     The trial court provided Appellant with his right to allocution, and

Appellant stated the following (verbatim):

           Your Honor, one thing, one thing I want to say, you know,
     since I’ve been here, it’s like I’ve had to fight for survival, you
     know? I been seen people die here since I’ve been here. I been
     heard people at nighttime screaming because they’ve been
     getting raped at nighttime.
            And every day is like a struggle for me. Every day is another
     fight for survival. And it’s like, it’s hard for me because I’m—it’s
     hard for me because the Dr. Cena (sp) requested me to be on a
     mental health unit and they got me in regular general population
     without being in the mental health unit. Where as they have
     officers that are trained to work for me and help me out to regular
     as—officers that don’t know what they’re doing with me.
           And it’s like it’s hard. Sometimes I get—I think about being
     suicidal. I’m not suicidal now but at the time when I was at
     Camphill I was suicidal because I got so many things that are
     doing it and so many things that remind me of what is actually
     going on. So I go through the most, you know? And it really is
     hard. It would have been better to have some type of relief, you
     know what I mean?
            I understand that I did something wrong and I understand
     that I’m—I did something wrong, that I needed to serve the
     punishment to know what is right. I understand that but it’s hard
     for me, it really is. Like I cry every night because I’m away from
     my family. I pray all the time that it’ll be soon. And like, I’m a
     changed person, I’ve been—with getting my GED, I’ve got my
     social security card, you know what I mean? I’ve been to all my


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      programs. It’s like I’m doing everything to prepare myself to get
      out of here, you know?
            While I’m doing that, it’s still a struggle for me. And I want
      you to know I’m fighting through this, not only fighting through
      this because I want to do right but I’m fighting through this
      because I have two kids, two daughters that needs me home, that
      need me to be there for them. Because I am their protector, I’m
      the one that is supposed to help them and guide them when they
      need to be taught, you know? I’m not that type of person that
      don’t make kids and don’t care about their kids and their children.
      I love my family. I love my family to death and I wouldn’t trade
      them for no one else.
             And I want to let people know that if they’re sitting in the
      courtroom, that at that time if they, when that time comes, don’t
      choose the wrong choice. Try to fight through it, you know. And
      that’s what I’m still learning to do and I’m going to keep on
      fighting. And that’s what I wanted to say here today. I just
      wanted ya’ll to hear me out.

Id. at 12-14.

      The trial court then imposed a sentence of two years to four years in

prison for PWID and a concurrent sentence of two years to four years in prison

for conspiracy. The trial court imposed no further sentence for possession.

Despite being provided with his post-sentence rights, Appellant did not file a

post-sentence motion; however, he filed a timely notice of appeal. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and in

response, counsel filed notice of her intent to file an Anders/McClendon brief

pursuant to Pa.R.A.P. 1925(c)(4). The trial court then filed a brief Pa.R.A.P.

1925(a) statement. On January 22, 2019, counsel filed in this Court a petition

seeking to withdraw her representation, as well as an Anders brief. Appellant




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filed no further submissions either pro se or through privately-retained

counsel.

      Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal

pursuant to which 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 [appellant]; and 3) advise the [appellant] that
      he or she has the right to retain private counsel or raise additional
      arguments that the [appellant] deems worthy of the court’s
      attention.

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

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders 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, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

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appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290

(Pa.Super. 2007).

      Herein, counsel contemporaneously filed her petition to withdraw as

counsel and Anders brief.     In her petition, counsel indicates that after a

thorough and conscientious examination of the record she has determined

that an appeal herein is wholly frivolous.    Additionally, in accordance with

Nischan, counsel has mailed Appellant a copy of the Anders brief and a letter

informing him that: (1) he has the right to retain new counsel; (2) he may

proceed further with his case pro se; and (3) he may raise any points that he

deems worthy of the this Court’s attention. Counsel has provided this Court

with a copy of the conforming letter.

      In the Anders brief, counsel provides a summary of the facts and

procedural history of the case, refers to evidence of record that might arguably

support the issues raised on appeal, provides citations to relevant case law,

and states her reasoning and conclusion that the appeal is wholly frivolous.

Accordingly, counsel has substantially complied with all of the technical

requirements of Anders and Santiago. Therefore, we proceed to examine

the issues counsel identified in the Anders brief and then conduct “a full

examination of all the proceedings, to decide whether the case is wholly


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frivolous.”   Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.

2018) (en banc) (quotation omitted).

      In the Anders brief, counsel raises the following issues (verbatim):

      1. Was the sentence imposed a legal sentence?
      2. Was the sentence imposed an excessive sentence?

Anders Brief at 3.

      In his first issue, Appellant contends his new sentence is illegal.

Specifically, Appellant suggests his sentence for PWID (crack cocaine) is

beyond the statutory limits.

      Initially, we agree with Appellant that he has raised a challenge to the

legality of his sentence. See Commonwealth v. Dixon, 161 A.3d 949, 951

(Pa.Super. 2017) (“If no statutory authorization exists for a particular

sentence, that sentence is illegal and subject to correction.”) (citation

omitted)). “Issues relating to the legality of a sentence are questions of law.

Our standard of review over such questions is de novo and our scope of review

is plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super.

2014).

      With regard to Appellant’s conviction for PWID (crack cocaine), 35 P.S.

§ 780-113(a)(30), the relevant statutory authority provides the following:

      § 780-113. Prohibited acts; penalties
                                  ***
           (f) Any person who violates clause (12), (14) or (30) of
      subsection (a) with respect to:
                                  ***


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                   (1.1) Phencyclidine; methamphetamine, including its
      salts, isomers and salts of isomers; coca leaves and any salt,
      compound, derivative or preparation of coca leaves; any salt,
      compound, derivative or preparation of the preceding which is
      chemically equivalent or identical with any of these substances,
      except decocanized coca leaves or extracts of coca leaves, which
      extracts do not contain cocaine or ecgonine; and marihuana in a
      quantity in excess of one thousand (1,000) pounds, is guilty of
      a felony and upon conviction thereof shall be sentenced to
      imprisonment not exceeding ten years, or to pay a fine not
      exceeding one hundred thousand dollars ($100,000), or both, or
      such larger amount as is sufficient to exhaust the assets utilized
      in and the profits obtained from the illegal manufacture or
      distribution of these substances.

35 P.S. § 780-113(f)(1.1) (bold added).

      By its express terms, the relevant statute permits a maximum sentence

of ten years in prison for PWID (crack cocaine).       See Commonwealth v.

Young, 922 A.2d 913 (Pa.Super. 2007) (holding it is well settled that criminal

statutes are to be strictly construed). Upon remand, the trial court imposed

a sentence of two years to four years in prison for PWID, and therefore, the

sentence was well within the statutory limits.        Consequently, we reject

Appellant’s challenge to the legality of his sentence as to PWID.

      In his final issue, Appellant contends the trial court abused its discretion

in imposing Appellant’s new sentence.      Specifically, Appellant suggests his

sentence upon remand was “unduly excessive,” as well as the result of judicial

vindictiveness. These claims present a challenge to the discretionary aspects

of Appellant’s sentence.    See Commonwealth v. Barnes, 167 A.3d 110

(Pa.Super. 2017) (en banc); Commonwealth v. Clarke, 70 A.3d 1281, 1287

(Pa.Super. 2013).

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      We have long held that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Id. at 122 (citation omitted). Instead, such

challenges are considered petitions for allowance of appeal. Id. Generally,

an appellant who wishes to challenge the discretionary aspects of his sentence

must satisfy a four-part test to invoke this Court’s jurisdiction:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect pursuant to Pa.R.A.P. 2119(f);
      and (4) whether there is a substantial question that the sentence
      appeal from is not appropriate under the Sentencing Code.

Id. (citation omitted). Finally, “[w]hether a particular issue constitutes a

substantial question about the appropriateness of sentence is a question to be

evaluated on a case-by-case basis.” Id. (citation omitted).

      Here, Appellant filed a timely notice of appeal, but he did not present

his discretionary aspects of sentencing issues during the sentencing hearing

or in a post-sentence motion. Accordingly, the issues are waived. See id.

      In any event, and assuming, arguendo, Appellant’s claims present a

substantial question, we note:

             Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.




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Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (quotation

omitted).

      With regard to Appellant’s claim that his sentence is “unduly excessive,”

we note “the sentence imposed should call for confinement that is consistent

with the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[W]here the sentencing

judge had the benefit of a presentence investigation report, it will be presumed

that he or she was aware of the relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Clarke, 70 A.3d at 1287.

      Here, the record reveals the trial court judge, who was the same judge

that sat for Appellant’s original sentencing hearing, was well aware of

Appellant’s crimes and had the benefit of a presentence investigation report.

The trial court permitted Appellant’s counsel to expand upon the information

contained in the presentence investigation report, including providing the trial

court with information pertaining to Appellant’s experiences as a minor in the

foster care system. Moreover, Appellant’s counsel provided the trial court with

information pertaining to Appellant’s time spent in prison, including the status

of Appellant’s mental health. Finally, the trial court considered Appellant’s

statement to the court in which Appellant sought leniency.           Based on the

aforementioned,    the   trial   court    imposed   individual   sentences,   which


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Appellant’s counsel admits were “standard-range minimum” sentences under

the Sentencing Guidelines, in a concurrent manner.       Anders Brief at 9.

Accordingly, we find no merit to Appellant’s claim that his sentence was

“unduly excessive.”

     With regard to Appellant’s suggestion of vindictiveness, generally, a

presumption of vindictiveness arises if the court imposes a harsher sentence

upon resentencing. Commonwealth v. Robinson, 931 A.2d 15, 22

(Pa.Super. 2007) (en banc). “Absent evidence [that] a sentencing increase is

justified due to objective information concerning a defendant’s case, the

presumption of vindictiveness cannot be rebutted.” Barnes, 167 A.3d at 124.

Without a presumption of vindictiveness, the defendant must affirmatively

prove actual vindictiveness. Id.

     Here, Appellant did not receive a greater sentence upon remand than

that which was originally ordered.     Specifically, Appellant was originally

sentenced to two years to four years in prison for PWID, a concurrent two

years to four years in prison for conspiracy, and a consecutive two years’

probation for possession. However, upon remand, Appellant was sentenced

to two years to four years in prison for PWID, a concurrent two years to four

years in prison for conspiracy, and no further penalty for possession.

Accordingly, there is no presumption of vindictiveness. See Robinson,

supra. Moreover, there is no evidence of actual vindictiveness on the part of




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the sentencing judge. Accordingly, Appellant is not entitled to relief on this

claim.

      After examining the issues contained in the Anders brief, we concur

with counsel’s assessment that the appeal is wholly frivolous. “Furthermore,

after conducting a full examination of all the proceedings as required pursuant

to Anders, we discern no non-frivolous issues to be raised on appeal.”

Yorgey, 188 A.3d at 1195. Thus, we grant counsel’s petition to withdraw and

affirm Appellant’s judgment of sentence.

      Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




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