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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
MARK WILLIAM MEENEY,                     :          No. 3182 EDA 2018
                                         :
                         Appellant       :


        Appeal from the Judgment of Sentence Entered October 3, 2018,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0000197-2018


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 11, 2019

        Mark William Meeney appeals from the October 3, 2018 judgment of

sentence entered by the Court of Common Pleas of Delaware County following

his conviction of possession of a controlled substance and possession of a

controlled substance with intent to deliver (“PWID”).1 Patrick J. Connors, Esq.,

filed an application to withdraw his appearance on February 22, 2019, alleging

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

review, we grant Attorney Connors’ application to withdraw and affirm

appellant’s judgment of sentence.




1   35 P.S. § 780-113(a)(16) and (30), respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 329 (Pa. 2009).
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      The record reflects the following factual and procedural history:        On

December 17, 2017, Angela Giovotto called the Pennsylvania State Police to

report that she had found her son, appellant, to be in possession of narcotics.

The police responded. Upon their arrival at Ms. Giovotto’s residence, where

appellant also resided, Ms. Giovotto turned over several packets of heroin to

the police. The police spoke with appellant and, with his consent, searched

his bedroom and recovered two additional packets of heroin. In total, the

police recovered 37 packets of heroin, 10 of which were marked “Maria,” and

27 of which were marked “Firecracker.” The police arrested appellant and

conducted a search of his person, which yielded $120 in cash.

      On January 19, 2018, the Commonwealth charged appellant with

possession of a controlled substance and PWID. Following a waiver trial, the

trial court convicted appellant of both charges on October 3, 2018 and

imposed a sentence of 1-2 years’ incarceration. Appellant did not file any

post-sentence motions. On November 1, 2018, appellant filed a timely notice

of appeal. On November 2, 2018, the trial court ordered appellant to file a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b).    In response, Attorney Connors filed a timely notice of

intention to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4) on

November 19, 2018.          The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on December 6, 2018. As noted above, Attorney Connors




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filed an application to withdraw his appearance, accompanied by an Anders

brief on February 22, 2019.

           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
                       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.


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                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.

          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).



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      Our review of Attorney Connors’ application to withdraw, supporting

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

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

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

proceed pro se, or bring any issues he deems pertinent to this court’s

attention; and filed with this court 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 Connors’

Anders brief. As Attorney Connors has complied with all of the requirements

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

requirements of Anders.

      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). Therefore, we now turn to the

merits of appellant’s appeal.

      Attorney Connors raises the following issue on appellant’s behalf:



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            [Whether] the trial court erred in sustaining the
            numerous objections made by the Commonwealth
            during the testimony of Angela Giovotto, a witness on
            behalf of [appellant], since those objections greatly
            limited her testimony of relevant information which
            strongly suggested [appellant] never sold or intended
            to sell heroin[?]

Anders brief at 3 (full capitalization and emphasis omitted).

      “Our standard of review on appeals challenging an evidentiary ruling of

the trial court is limited to a determination of whether the trial court abused

its discretion.” Commonwealth v. Hernandez, 39 A.3d 406, 410 (Pa.Super.

2012), appeal denied, 63 A.3d 1244 (Pa. 2013), quoting Commonwealth

v. Young, 904 A.2d 947, 956 (Pa.Super. 2006), appeal denied, 916 A.2d

633 (Pa. 2006) (citations omitted). We have defined “abuse of discretion” as,

“not merely an error of judgment, but [] rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by

the evidence of record.”    Commonwealth v. Santos, 176 A.3d 877, 882

(Pa.Super. 2017), appeal denied, 189 A.3d 986 (Pa. 2018), quoting

Commonwealth v. Antidormi, 84 A.3d 736, 749-750 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).

      Here, the Commonwealth raised four objections during Ms. Giovotto’s

testimony, which was directed to the fact that appellant was an addict and not

a dealer. The Commonwealth’s objections were sustained based on hearsay,

speculation, and relevancy.



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        The first objection related to Ms. Giovotto’s providing hearsay testimony

as to why her tenant chose to move out of her house. (Notes of testimony,

9/28/18 at 64.)       The trial court sustained the Commonwealth’s objection.

(Id.)

        The Pennsylvania Rules of Evidence define hearsay as an out-of-court

statement offered to prove the truth of the matter asserted. Pa.R.E. 801(c).

The Rules of Evidence generally prohibit a court from admitting hearsay

evidence, unless an exception to the Rule Against Hearsay applies.

Pa.R.E. 802; see also Pa.R.E. 803; 803.1; 804.                Here, the reason

Ms. Giovotto’s tenant gave for moving out is hearsay evidence because the

statement at issue was made out of court and was being introduced to prove

the truth of the matter asserted—namely, appellant’s drug use. (See notes

of testimony, 9/28/18 at 64.) Accordingly, the trial court did not abuse its

discretion when it sustained the Commonwealth’s hearsay objection.

        The Commonwealth’s next two objections were on the grounds that

Ms. Giovotto    was    providing   speculative   testimony.    Specifically,   the

Commonwealth objected to Ms. Giovotto’s testimony regarding why appellant

may have fabricated a story about someone shooting him in the head if he

failed to return drugs and testimony pertaining to activity related to dealing

drugs. (Id. at 67-69.) The trial court sustained both objections. (Id. at 67;

69.)




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      The Rules of Evidence permit a witness to testify to a matter “only if

evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter.” Pa.R.E. 602. Here, appellant failed to

produce any evidence of record that Ms. Giovotto had any personal knowledge

as to appellant’s reasons why he would have fabricated a story about being

shot for failing to return drugs or about activity related to dealing drugs. We,

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

the Commonwealth’s objections.

      Finally,   the   Commonwealth     raised   a   relevance   objection   when

Ms. Giovotto began testifying about appellant’s absence from his uncle’s

funeral. (Notes of testimony, 9/28/18 at 72-73.) The trial court sustained

the objection. (Id. at 73.)

            “Evidence is relevant if it logically tends to establish a
            material fact in the case, tends to make a fact at issue
            more or less probable, or supports a reasonable
            inference or presumption regarding the existence of a
            material fact.” Commonwealth v. Spiewak, [], 617
            A.2d 696, 699 ([Pa.] 1992). Evidence that merely
            advances an inference of a material fact may be
            admissible, even where the inference to be drawn
            stems only from human experience.

Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998) (citation omitted).

Here, there is no evidence on the record that indicates that appellant’s

absence from his uncle’s funeral was relevant to the charges against him.

Accordingly, we find that the trial court did not abuse its discretion.




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      We, therefore, find that the record supports Attorney Connors’

assessment that the appeal is frivolous because the record demonstrates that

the trial court did not abuse its discretion when it sustained the

Commonwealth’s objections during Ms. Giovotto’s testimony.

      Moreover, our independent review of the entire record reveals no

additional non-frivolous claims.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/11/19




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