J-S51018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM JONES

                            Appellant                No. 1977 MDA 2013


          Appeal from the Judgment of Sentence September 13, 2013
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002609-2012


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 24, 2015

        William Jones appeals from the judgment of sentence entered

September 13, 2013, in the Luzerne County Court of Common Pleas. The

trial court imposed an aggregate sentence of 36 to 72 months’ imprisonment

following Jones’s conviction of possession with intent to deliver (PWID)

heroin, possession of heroin, and possession of a small amount of

marijuana.1 Contemporaneous with this appeal, Jones’s counsel has filed a

petition to withdraw from representation and an Anders brief.2      Counsel’s

Anders brief challenges the trial court’s denial of Jones’s pretrial motion to

____________________________________________


1
    35 P.S. §§ 780-113(a)(30), (16), and (31), respectively.
2
 Anders v. California, 386 U.S. 738 (1967). See also Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago,
978 A.2d 349, 361 (Pa. 2009)
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suppress physical evidence and a written statement, as well as the

sufficiency and weight of the evidence supporting the convictions. For the

reasons set forth below, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

       The facts underlying Jones’s arrest and conviction are as follows. On

July 15, 2012, at approximately 1:00 p.m., Officer Robert Collins, of the

Wilkes-Barre Police Department, was on routine patrol in the Boulevard

Town Homes area.3         Officer Collins noticed a car parked too close to the

corner on South Welles and East Northampton Street. When he approached,

he observed Jones in the driver’s seat and Keith Iris, a known heroin user,

leaning inside the driver’s side window. N.T., 7/8-9/2013, at 36, 47. Officer

Collins pulled his police cruiser parallel to Jones’s vehicle. When Jones saw

him, Jones quickly dropped something out of his left hand. Officer Collins

exited his cruiser, and asked Jones to step out of his vehicle. When he did,

the officer immediately noticed a “bundle of heroin in between the doorjamb

and the seating area of the driver’s side.”4     Id. at 37. Thereafter, Officer

Collins placed Jones under arrest, and during a search incident to arrest
____________________________________________


3
  At the suppression hearing, Officer Collins testified he had been a patrol
officer for six and one-half years, and had made approximately 500 arrests
of “people engaged in drug activity.” N.T., 5/16/2013, at 7. He reiterated
that testimony at trial. N.T., 7/8-9/2013, at 33-34.
4
  Officer Collins stated he had seen heroin “[m]aybe 500 times, a lot” during
the course of his job, and it was “immediately apparent” to him that the
bundle on the floor of the car was heroin. Id. at 38.



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uncovered 16 bags of heroin, “along with a couple bags of marijuana[,]”and

a total of $1,597.00 in cash, secreted in his pockets. 5      Id. at 39-40. The

officer did not find any needles or other evidence of drug use paraphernalia.

Officer Collins transported Jones to the police station, where Jones waived

his Miranda6 rights and provided the following written statement to police:

“I had 26 bags of dope on me at the time of my arrest. Because I did have

them on me, I was planning on selling them.”7 Id. at 45.

        Jones was charged with PWID, possession of heroin, and possession of

a small amount of marijuana.             He filed a motion to suppress both the

evidence recovered during the “stop” and the statement he provided to

police.   The trial court conducted a suppression hearing, and, on May 30,

2013, denied Jones’s motion. On July 9, 2013, a jury returned a verdict of

guilty on all charges. Jones was sentenced on September 13, 2013, to an

____________________________________________


5
  The parties stipulated at trial that the total aggregate weight of the heroin
recovered was .74 grams, and the total aggregate weight of the marijuana
recovered was 1.99 grams. Id. at 86-87.
6
    Miranda v. Arizona, 384 U.S. 436 (1966).
7
  At trial, Jones testified he was a passenger in the parked car and that Iris
was leaning in the window, offering to sell him heroin. N.T., 7/8-9/2013, at
92-95. Although he admitted he had heroin on his person, Jones testified
the drugs were for his personal use, and the bundle of heroin in the car was
not his. Id. at 95-97. Furthermore, Jones testified that, earlier that day, he
took “a couple of Vicodins and … snorted a bag of heroin.” Id. at 97. Jones
claimed to have no memory of signing a written statement at the police
station. Id. at 101-102.




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aggregate term of 36 to 72 months’ imprisonment. He filed a timely post-

sentence motion to modify his sentence, which the trial court denied on

September 23, 2013. This timely appeal followed.

      When    direct   appeal     counsel   files   a   petition   to   withdraw    and

accompanying Anders brief, we must first examine the request to withdraw

before   addressing    any   of   the   substantive     issues     raised   on   appeal.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Here, our review of the record reveals that counsel has substantially

complied with the requirements for withdrawal outlined in Anders, supra,

and its progeny. Specifically, counsel filed a petition for leave to withdraw,

in which he states his belief that the appeal is frivolous, filed an Anders

brief pursuant to the dictates of Santiago, supra, furnished a copy of the

Anders brief to Jones, and advised Jones of his right to retain new counsel

or proceed pro se. Commonwealth v. Ferguson, 761 A.2d 613, 616 (Pa.

Super. 2000). Moreover, the record contains no additional correspondence

from Jones. Accordingly, we will proceed to examine the record and make

an independent determination of whether the appeal is wholly frivolous.

      Preliminarily, however, we must determine whether Jones’s claims are

waived based on his failure to file a timely concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). While his notice of




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appeal was pending, Jones filed a PCRA8 petition challenging the stewardship

of trial counsel. The trial court dismissed the petition, without prejudice, as

premature. See Order, 10/31/2013. However, trial counsel then moved for

the appointment of conflict counsel. In an order dated November 26, 2013,

the court appointed new counsel, and directed him to file a Rule 1925(b)

statement on or before December 16, 2013. See Order, 11/26/2013. After

receiving an extension of time prolonging the deadline until December 27,

2013, counsel still failed to file a concise statement.              Accordingly, on

February 26, 2014, the trial court filed an opinion deeming all of Jones’s

claims waived on appeal for his failure to file a concise statement.             See

Pa.R.A.P. 1925(b)(4)(vii).          See also Trial Court Opinion, 2/26/2014.

Thereafter, counsel filed, in this Court, an Anders brief and accompanying

petition to withdraw.

        Pursuant to Rule 1925, counsel who determines an appeal is frivolous

and desires to withdraw from representation may file “a statement of intent

to file an Anders/McClendon brief in lieu of filing a [Rule 1925(b)]

Statement.”     Pa.R.A.P. 1925(c)(4).          However, counsel’s failure to file any

Rule 1925 statement, when ordered to do so by the trial court, may be

considered ineffectiveness per se, in which case “the appellate court shall

remand for the filing of a Statement nunc pro tunc.” Pa.R.A.P. 1925(c)(3).

____________________________________________


8
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.




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       Here, counsel neglected to file any concise statement although ordered

to do so by the trial court.        For that reason, we could consider counsel’s

actions ineffectiveness per se and remand for the filing of either a Rule

1925(b) statement or a Rule 1925(c)(4) statement of intent to file an

Anders brief. See Commonwealth v. McBride, 957 A.2d 752, 758 (Pa.

Super. 2008) (remanding for Rule 1925 statement, even though counsel

filed an Anders brief, because the absence of a trial court opinion prevented

meaningful appellate review). However, in the interests of judicial economy,

we decline to do so.        Because counsel has determined Jones’s appeal is

frivolous and filed an Anders brief, we presume, upon remand, he would file

a Rule 1925(c)(4) statement of intent to file an Anders brief, which would

provide no further elucidation to the trial court of the issues raised on

appeal.    Moreover, our review of the issues identified in counsel’s Anders

brief is not hampered by the lack of a trial court opinion. Accordingly, we

will proceed to address the substantive claims on appeal.9

       The first issue identified in the Anders brief challenges the trial court’s

denial of Jones’s pretrial motion to suppress the drugs recovered from his

vehicle and person.10        Jones asserts Officer Collins subjected him to an
____________________________________________


9
 We note that “this Court may affirm a trial court’s decision if it is correct on
any basis.” Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super.
2013), appeal denied, 91 A.3d 162 (Pa. 2014).
10
  We have reordered the issues as they appear in the Anders brief for
purposes of disposition.



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investigatory stop, without sufficient reasonable suspicion that he was

violating a provision of the Motor Vehicle Code.

      Our review of an order denying a motion to suppress is well-

established:

      We are limited to determining whether the lower court’s factual
      findings are supported by the record and whether the legal
      conclusions drawn therefrom are correct. We may consider the
      evidence of the witnesses offered by the Commonwealth, as
      verdict winner, and only so much of the evidence presented by
      [the] defense that is not contradicted when examined in the
      context of the record as a whole. We are bound by facts
      supported by the record and may reverse only if the legal
      conclusions reached by the court were erroneous.

Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010) (citation

omitted), appeal denied, 25 A.3d 327 (Pa. 2011).

      Here, both the trial court and Jones refer to the encounter at issue as

a “vehicle stop.” See Anders Brief at 10; Findings of Fact and Conclusions

of Law, 5/30/2013, at 3. Pursuant to 75 Pa.C.S. § 6308(b), a police officer

may stop a vehicle if he “has reasonable suspicion that a violation of [the

Motor Vehicle Code] is occurring or has occurred.” However, Jones’s vehicle

was already parked when Officer Collins arrived on the scene. Therefore, we

will consider the officer’s actions under the traditional standards of police

interactions.

      Fourth Amendment jurisprudence has led to the development of
      three categories of interactions between citizens and the police.
      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to
      respond. The second, an “investigative detention” must be


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      supported by a reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.

Commonwealth v. Ellis, 662 A.2d 1043, 1047-1048 (Pa. 1995) (internal

citations omitted).

      We find that when Officer Collins ordered Jones out of his vehicle, the

encounter rose to an investigatory detention, for which the officer was

required to have “reasonable suspicion.”

      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by police and its degree of
      reliability in the totality of the circumstances. In order to justify
      the seizure, a police officer must be able to point to “specific and
      articulable facts” leading him to suspect criminal activity is afoot.
      In assessing the totality of the circumstances, courts must also
      afford due weight to the specific, reasonable inferences drawn
      from the facts in light of the officer’s experience and
      acknowledge that innocent facts, when considered collectively,
      may permit the investigative detention.

Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011) (internal citations

omitted).

      Our review of the record reveals that Officer Collins possessed the

requisite reasonable suspicion to detain Jones. The officer observed Jones in

the driver’s seat of a car that was parked illegally in a “high-crime, high-

drug area.” N.T., 5/16/2013, at 8. Officer Collins testified that he had “had

contact with Mr. Jones several times” and “[e]very time Mr. Jones’s license

has been run, it’s been suspended.” Id. at 9. The most recent encounter

was “no more than six weeks prior” when the officer investigated a motor


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vehicle accident involving Jones.    Id. at 9-10.    See Commonwealth v.

Farnan, 55 A.3d 113 (Pa. Super. 2012) (holding officer’s knowledge that

driver’s license had been suspended 30 days earlier was sufficient to justify

vehicle stop).   Furthermore, the officer also recognized Keith Iris, “a known

heroin user,” leaning in Jones’s car window.        Id. at 10.     Officer Collins

explained that when he pulled his police car parallel to Jones’s door, Jones

looked at him and “quickly” dropped something he had in his hand. Id. at

12.   At that point, the officer exited his car, ordered Iris away from the

window, and asked Jones to exit his vehicle. Id.

      Based upon the totality of the circumstances, including Officer Collins’s

knowledge that Jones had been driving with a suspended license only a few

weeks earlier, the officer’s observation of Jones’s illegally parked car, and

Jones’s suspicious movements after he noticed the officer, we find Officer

Collins had reasonable suspicion to detain Jones while he investigated

further. See Holmes, supra. Immediately upon Jones’s egress from the

vehicle, Officer Collins saw the bundle of heroin in plain view.     Accordingly,

we conclude the trial court did not abuse its discretion in denying Jones’s

pretrial motion to suppress the evidence recovered during the officer’s

investigation, and no relief is warranted on this claim.

      The Anders brief next challenges the trial court’s denial of Jones’s

pretrial motion to suppress the statement he gave to police.       Jones testified

at trial that, on the day of his arrest, he had taken “a couple of Vicodins and




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… snorted a bag” of heroin, and that he did not remember giving a written

statement to police. N.T., 7/8-9/2013, at 97, 102.

     The Commonwealth bears the burden of demonstrating that a

defendant   “knowingly   and   voluntarily   waived   his   Miranda     rights.”

Commonwealth v. Eichinger, 915 A.2d 1122, 1135 (Pa. 2007), cert.

denied, 552 U.S. 894 (2007). “In order to do so, the Commonwealth must

demonstrate that the proper warnings were given, and that the accused

manifested an understanding of these warnings.” Id. at 1136. Moreover,

we are guided by the following:

        The fact that an accused has been drinking does not
        automatically invalidate his subsequent incriminating
        statements. The test is whether he had sufficient mental
        capacity at the time of giving his statement to know what
        he was saying and to have voluntarily intended to say it.
        Recent imbibing or the existence of a hangover does not
        make his confession inadmissible, but goes only to the
        weight to be accorded to it.

     “[W]hen evidence of impairment is present, it is for the
     suppression court to decide whether the Commonwealth has
     established by a preponderance of the evidence that the suspect
     nonetheless had sufficient cognitive awareness to understand
     the Miranda warnings and to choose to waive his rights.

Commonwealth v. Ventura, 975 A.2d 1128, 1137-1138 (Pa. Super. 2009)

(internal citations omitted), appeal denied, 987 A.2d 161 (Pa. 2009).

     At the suppression hearing, Officer Collins testified he orally advised

Jones of his Miranda warnings, and Jones initialed a warning form prior to

providing his written statement.   N.T., 5/16/2013, at 15-16.     The officer

further testified that Jones did not appear to be intoxicated, lethargic or


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sleepy, was not slurring his speech, and was speaking “clearly and

normally.” Id. at 19. Although Jones testified he “didn’t even remember”

initialing the Miranda warnings form or providing a written statement,11 the

trial court resolved the issue of credibility in favor of the officer.         See

Findings of Fact and Conclusion of Law, 5/20/2013, at ¶ 15. Accordingly, we

conclude Jones is entitled to no relief on this claim. See Feczko, supra.

        The third issue identified in the Anders brief challenges the sufficiency

of the evidence supporting Jones’s conviction of PWID.            At trial, Jones

admitted he had heroin and marijuana on his person, but claimed the drugs

were for his personal use.         N.T., 7/8-9/2013, at 95, 99.   He also denied

knowing anything about the bundle of heroin found in the vehicle. Id. at 96.

        Our review of a challenge to the sufficiency of the evidence is well-

established:

        [W]e evaluate the record in the light most favorable to the
        Commonwealth as the verdict winner, giving the prosecution the
        benefit of all reasonable inferences to be drawn from the
        evidence. “Evidence will be deemed sufficient to support the
        verdict when it establishes each material element of the crime
        charged and the commission thereof by the accused, beyond a
        reasonable doubt.”        However, the Commonwealth need not
        establish guilt to a mathematical certainty, and it may sustain its
        burden by means of wholly circumstantial evidence. Moreover,
        this Court may not substitute its judgment for that of the
        factfinder, and where the record contains support for the
        convictions, they may not be disturbed. Lastly, we note that the
        finder of fact is free to believe some, all, or none of the evidence
        presented.
____________________________________________


11
     N.T., 5/16/2013, at 35.



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Commonwealth v. Taylor, 33 A.3d 1283, 1287-1288 (Pa. Super. 2011)

(internal citations omitted), appeal denied, 47 A.3d 847 (Pa. 2012).

      “To convict a person of PWID, the Commonwealth must prove beyond

a reasonable doubt that the defendant possessed a controlled substance and

did so with the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d

1008, 1015 (Pa. Super. 2005) (citation omitted). The Commonwealth may

prove the defendant’s intent to deliver “wholly by circumstantial evidence.”

Id. (citation omitted).   When the intent to deliver is not evident from the

facts, the Commonwealth may present expert testimony on the issue.

      Such testimony is admissible to aid in determining whether the
      facts surrounding the possession of controlled substances are
      consistent with intent to deliver. The amount of the controlled
      substance is not “crucial to establish an inference of possession
      with intent to deliver, if ... other facts are present.”

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007) (citation

omitted).

      Here, the Commonwealth presented the testimony of Officer Thomas

Kaluzny, an expert in street level drugs and drug parphrenalia, who opined

that Jones possessed the bags of heroin with the intent to deliver them.

N.T., 7/8-9/2013, at 65, 71. In particular, Officer Kaluzny noted: (1) Jones

possessed no drug paraphernalia typical of a heroin user; (2) the drugs

recovered were packaged for resale; (3) Jones had more than $1,500 in

cash on his person at the time of his arrest; and (3) Jones provided a written

statement to police indicating his intention to sell the heroin. Id. at 67-70.

Although Jones presented his own expert who contradicted Officer Kaluzny’s

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conclusions, the jury was free to conclude that the Commonwealth’s expert

was more credible.     Taylor, supra.       This is especially true since Jones

admitted his intent to deliver the drugs in his statement to police.

Accordingly, no relief is warranted.

      The final issue identified in the Anders brief is a challenge to the

weight of the evidence.

      It is well-settled that when reviewing a weight of the evidence claim,

      an appellate court does not substitute its judgment for the finder
      of fact and consider the underlying question of whether the
      verdict is against the weight of the evidence, but, rather,
      determines only whether the trial court abused its discretion in
      making its determination.

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

134 S. Ct. 1792 (U.S. 2014). For that reason, “[a] weight of the evidence

claim must be preserved either in a post-sentence motion, by a written

motion before sentencing, or orally prior to sentencing. Commonwealth v.

Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601

(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.

      Here, Jones neglected to challenge the weight of the evidence in his

post-sentence motion. Nor did he raise a challenge either prior to or during

the sentencing hearing.    See generally N.T. 9/13/2013.        Therefore, this

claim is waived for our review.

      Therefore, because we agree with counsel’s assessment that Jones’s

appeal is wholly frivolous, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

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     Judgment of sentence affirmed.     Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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