J-S58005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DEXTER V. SMITH,

                            Appellant                  No. 247 MDA 2016


            Appeal from the Judgment of Sentence January 8, 2016
              in the Court of Common Pleas of Lancaster County
              Criminal Division at No.: CP-36-CR-0003611-2015


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED SEPTEMBER 22, 2016

        Appellant, Dexter V. Smith, appeals from the judgment of sentence

imposed January 8, 2016. Appellant’s counsel has filed a brief and a petition

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the

appeal is wholly frivolous.       We affirm the judgment of sentence and grant

counsel’s request to withdraw.

        We take the factual and procedural history in this matter from the trial

court’s March 7, 2016 opinion.

        On Saturday, June 27, 2015, just after midnight, Manheim
        Township Police Officer Charles S. Wickers was patrolling the
        Lancaster Community Park in Lancaster Township in a marked
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*
    Retired Senior Judge assigned to the Superior Court.
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     police vehicle. The park is closed from sunset to sunrise by
     [o]rdinance of Lancaster Township. During his patrol, Officer
     Wickers observed Appellant walking, with a backpack, in the
     park after hours and stopped him for the ordinance violation.

            Appellant provided his Pennsylvania driver’s license for
     identification purposes. A search of his name on the National
     Crime Information Center (NCIC) database revealed an
     outstanding warrant for Appellant through the Pennsylvania
     Capital Police for harassment by communication. Appellant was
     arrested on that active warrant and, on a search incident to
     arrest, was found to be in possession of a small plastic baggie
     filled with a vegetable matter. This substance was not found on
     his person, but rather in his backpack. Based upon his training
     and experience, Officer Wickers recognized the substance as
     marijuana. The marijuana was field tested and confirmed to
     contain THC, a Schedule I controlled substance. The marijuana
     was later weighed at approximately 2.4 grams.

           Based on this recovered contraband and his presence in
     the park after hours, Appellant was charged with knowing and
     intentional possession of a small amount of marijuana, 35 P.S. §
     780-113(a)(31), and a summary violation of Lancaster Township
     Ordinance 192-3.

            On January 8, 2016, following a non-jury trial, Appellant
     was found guilty of both charges. Appellant waived his right to a
     pre-sentence investigation report and immediately stood for
     sentencing. On Count I (possession), Appellant was sentenced
     to a fine of $500.00 plus costs, to include all lab expenses, and
     on Count II (park hours), Appellant was sentenced only to costs.

            Appellant filed a timely [n]otice of [a]ppeal on February 5,
     2016. [The trial court] ordered Appellant, on February 9, 2016,
     to file a concise statement of [errors] complained of on appeal
     pursuant to Pa.[]R.A.P. 192[5](b). In response, Appellant’s
     counsel filed a [s]tatement of [i]ntent to file an Anders brief in
     lieu of a Rule 1925(b) concise statement pursuant to Pa[]R.A.P.
     1925(c)(4), asserting that there are no non-frivolous matters
     that can be raised on appeal. . . .




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(Trial Court Opinion, 3/07/16, at 1-3) (record citations and footnotes

omitted).   The trial court entered its opinion on March 7, 2016.            See

Pa.R.A.P. 1925(a).

      When counsel submits an Anders brief, we must first rule on the

petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010).

Court-appointed counsel who seeks to withdraw from representing an

appellant on direct appeal on the basis that the appeal is frivolous 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 or statutes on point that have led to the conclusion that
      the appeal is frivolous.

Santiago, supra at 361.

      Here, counsel has substantially complied with all the requirements of

Anders and Santiago.       Specifically, after reviewing the record, including

the bench trial and sentencing transcripts, and concluding that an appeal to

this Court would be wholly frivolous, she has petitioned this Court to

withdraw from representation.    (See Application for Leave to Withdraw as

Counsel, 5/03/16, at unnumbered page 2).

      In addition, counsel filed a brief with this Court that provides a

summary of the procedural history and facts, refers to any facts or legal

theories that arguably support the appeal, and explains why she believes the


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appeal is wholly frivolous. (See Anders Brief, at 6-17).     Finally, she has

attached, as an exhibit to her petition to withdraw, a copy of the letter she

sent to Appellant giving him notice of his rights, and including a copy of the

Anders brief and the petition. (See Application, at unnumbered page 3);

see also Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.

2005) (holding that counsel must attach copy of letter sent to client advising

client of rights).

       Because counsel has substantially complied with the requirements of

Anders, Santiago, and Millisock, we will examine the issues set forth in

the Anders brief that counsel believes could have arguable merit.          See

Garang, supra at 240–41.

       The Anders brief raises six issues for our review:1

       [1. Whether the evidence was sufficient] to sustain [Appellant’s]
       convictions[?]

       [2. Whether the court properly admitted evidence from] the
       search of [Appellant’s] backpack incident to arrest[?]

       [3. Whether Appellant is entitled to relief because] Officer
       Wickers perjured himself at the preliminary hearing because it
       was unclear whether the marijuana was field tested[?]

       [4. Whether Appellant is entitled to relief because] the cannabis
       was tampered with because the initial report by Officer Wickers

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1
  The statement of question presented frames the issue as whether counsel
should be permitted to withdraw because any appellate issues are frivolous;
however, in the Anders brief’s argument section, counsel identifies the
issues Appellant wishes to raise. (See Anders Brief, at 5, 8-16).




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        stated that the cannabis weighed 2.4 grams while the lab report
        indicated the cannabis weighed 1.15 [grams?]

        [5. Whether] the court erred because [Appellant’s] trial was
        scheduled to start at 1:30 p.m., but the Judge did not take the
        bench until 2:30 p.m.[?]

        [6. Whether Appellant is entitled to relief because he] was not
        afforded a Marsden[2] hearing to speak to the Judge privately in
        order to obtain a different court-appointed attorney[?]

(See Anders Brief, at 8, 11, 13-15).3

        Appellant’s first issue claims that the evidence was insufficient to

support his convictions for possession of a controlled substance and the

violation of a Lancaster Township Parks Ordinance. (See Anders Brief, at

8-11). We disagree.

        “The standard we apply in reviewing the sufficiency of the evidence is

whether viewing all the evidence admitted at trial in the light most favorable

to the verdict winner, there is sufficient evidence to enable the fact-finder to

find    every    element     of   the    crime   beyond   a   reasonable   doubt.”

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citations

omitted).

        An individual commits the offense of possession of a controlled

substance where he “[K]nowingly or intentionally possess[es] a controlled or


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2
    People v. Marsden, 465 P.2d 44 (Cal. 1970).
3
  The Commonwealth filed a letter stating it would not file a brief. (See
Letter of Assistant District Attorney to Deputy Prothonotary of Pennsylvania
Superior Court, 5/06/16).



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counterfeit substance . . . unless it was obtained directly from, or pursuant

to, a valid prescription order or order of a practitioner[.]” 35 P.S. § 780-

113(a)(16).   Lancaster Township Parks Ordinance § 192-3 provides:         “All

parks shall be open from sunrise to sunset.”        Lancaster Township Park

Ordinance § 192-3.

      Here, the Commonwealth presented evidence at trial sufficient to

prove beyond a reasonable doubt that Appellant possessed marijuana, a

controlled substance, and was present in the park after sunset. (See N.T.

Trial, 1/08/16, at 6-8, 13-16, 19, 26-27). Upon review, we conclude that,

viewing the evidence in the light most favorable to the Commonwealth as

verdict winner, it established beyond a reasonable doubt that Appellant

possessed marijuana, and that he was present in the Lancaster Township

Community Park after sunset. See Smith, supra at 790. Appellant’s first

issue does not merit relief.

      In his second issue, Appellant argues that the court erred in admitting

evidence of the marijuana because, he claims, it should have been

suppressed as the product of an illegal search. (See Anders Brief, at 11-

14). However, Appellant did not raise this issue before the trial court. “It is

axiomatic that an issue cannot be raised for the first time on appeal.”

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

(citations omitted); see Pa.R.A.P. 302(a).     Therefore, Appellant’s second

issue does not merit relief.




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      In his third issue, Appellant claims that Officer Wickers perjured

himself because he did not have the marijuana tested by the outside lab

before the preliminary hearing, he had only field tested it.     (See Anders

Brief, at 13).    Appellant’s challenge to the credibility of the evidence

presented by the Commonwealth, is properly characterized as a weight of

the evidence challenge.    See Commonwealth v. Wilson, 825 A.2d 710,

713–14 (Pa. Super. 2003).      However, Appellant has not raised this issue

with the trial court orally or in writing, or in a post-sentence motion. See

Pa.R.Crim.P. 607. Thus, he has waived this claim. See Commonwealth v.

Griffin, 65 A.3d 932, 938 (Pa. Super. 2013), appeal denied, 76 A.3d 538

(Pa. 2013) (“[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. Failure to properly preserve the claim will result in waiver[.]”

(citations omitted)).     “Nevertheless, in light of [c]ounsel’s petition to

withdraw, we address Appellant’s contention.”      Commonwealth v. Lilley,

978 A.2d 995, 998 (Pa. Super. 2009) (citation omitted).

      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. 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. 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. 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



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      imperative so that right may be given another opportunity to
      prevail.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations and

quotation marks omitted).

      Here, Appellant’s challenge to the weight of the evidence, based on

the credibility of Officer Wickers, even if properly preserved, would not merit

relief. At trial, Officer Wickers testified to the following:

      Q.    Officer Wickers, I believe you testified at [Appellant’s]
      preliminary hearing?

      A. Yes.

      Q. And that was in July of 2015?

      A. I believe so.

      Q. At that time, had you yet sent the marijuana to the outside
      lab?

      A. Yes.

      Q. Okay.

      A. Since then or before then?

      Q. Sorry. Before then had you sent it to the lab?

      A. No.

      Q. But you had field tested it by that point in time?

      A. Yes.

(N.T. Trial, at 17-18).

      Upon review, Officer Wickers’s credibility was not so undermined by

his misstatement, which he quickly corrected, such that the verdict of guilt

against Appellant shocked one’s sense of justice. See Clay, supra at 1054-

55; Wilson, supra at 713-14. Appellant’s third issue would not merit relief.


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       In his fourth issue, Appellant claims that Officer Wickers tampered

with the evidence because he testified that the weight of the marijuana was

2.4 grams whereas Ms. Bruno, the Pennsylvania State Police lab forensic

scientist, testified that the weight was 1.15 grams. (See Anders Brief, at

14). Appellant did not object to Officer Wickers’s testimony at trial, thus he

cannot raise this issue for the first time on appeal. See Hankerson, supra

at 420.     Moreover, we note that Officer Wickers clearly testified that he

weighed the suspected marijuana in the packaging, whereas, Ms. Bruno

testified that she weighed the marijuana with the packaging removed. (See

N.T. Trial, at 17, 27-28). Appellant’s fourth issue is meritless.

       In his fifth issue, Appellant claims that the trial court erred because

“his trial was scheduled to start at 1:30 p.m., but the Judge did not take the

bench until 2:30 p.m.” (Anders Brief, at 14). We agree with counsel that

Appellant’s issue is frivolous.

       In his sixth and final issue, Appellant claims that the court erred

because it did not conduct a Marsden hearing4 after he requested that the

court appoint a different attorney to represent him. (See id. at 15). We

disagree.



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4
  The Supreme Court of California in Marsden, supra, held that the trial
court erred by not holding a hearing to determine whether the defendant
was entitled to a change of appointed counsel after he alleged that counsel’s
representation was inadequate. See Marsden, supra at 47-48.



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       Our Supreme Court has explained, “the right to appointed counsel

does   not   include   the   right   to    counsel   of   the   defendant’s   choice.”

Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998). “A motion for

change of counsel by a defendant for whom counsel has been appointed

shall not be granted except for substantial reasons.” Pa.R.Crim.P. 122(C).

“Whether a motion for change of counsel should be granted is within the

sound discretion of the trial court and will not be disturbed on appeal absent

abuse of discretion.”     Commonwealth v. Cook, 952 A.2d 594, 617 (Pa.

2008) (citations omitted).

       Here, at the beginning of trial, Appellant alleged that he was having

conflict issues with his appointed attorney and requested that the trial court

appoint a new public defender. (See N.T. Trial, at 3-4). The court explained

to Appellant that he had the right to hire his own attorney, proceed with the

attorney who had been court appointed, or proceed without an attorney.

(See id. at 4). Appellant chose to proceed with his appointed counsel.

       Upon review, we conclude that the trial court did not abuse its

discretion in denying Appellant’s request for new appointed counsel.             See

Cook, supra at 617; Albrecht, supra at 709; Pa.R.Crim.P. 122(C).

Appellant’s sixth issue does not merit relief.

       Appellant’s issues do not merit relief.        Furthermore, this Court has

conducted an independent review of the record and finds that no non-

frivolous issues exist.




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     Judgment of sentence affirmed.     Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




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