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[U] Commonwealth v. Haep

Superior Court of Pennsylvania

August 14, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CINDY L. HARP, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CINDY L. HARP, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered on January 4, 2013 in the Court of Common Pleas of Montgomery County, Criminal Division, Nos. CP-46-CR-0001343-2012, CP-46-CR-0001344-2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Cindy L. Harp ("Harp") appeals from the judgment of sentence imposed following her convictions of delivering a controlled substance, possession of drug paraphernalia, and criminal use of a communication facility. See 35 Pa.C.S.A. §§ 780-113(a)(30), 780-113(a)(32); 18 Pa.C.S.A. § 7512(c). Harp's counsel has filed a Petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We affirm and grant counsel's Petition to withdraw.

On June 6, 2011, Officer Timothy Roeder ("Roeder") met with a confidential informant for the purpose of conducting a controlled buy of the prescription pain-killer Percocet. At the police station, Roeder watched the informant make a telephone call to a number later determined to belong to Harp and listened as the informant arranged to make the purchase. After searching the informant to ensure that he did not possess money or contraband, Roeder provided the informant with forty dollars and drove him to a location near Harp's residence. Roeder and another officer, Robert Stout, watched the informant approach Harp and her adult son. The officers then observed a hand-to-hand exchange between Harp and the informant. The informant returned to the vehicle and provided the officers with eight Percocet pills. Once they returned to the station, the informant was again searched and found to be free of currency or contraband.

Roeder met with the informant again on June 7, 2011, and watched as the informant called Harp to arrange another purchase of Percocet. After the informant was searched and provided with forty dollars, he was driven to a location near Harp's residence. Roeder and Officer Andrew Peifer then observed the informant entering an orange Ford Mustang. After the informant exited the Ford Mustang, the officers kept him under surveillance as he returned to their vehicle, where he provided them with eight Percocet pills wrapped in cellophane. The officers also observed Harp exit the Ford Mustang and return to her residence. Upon their return to the police station, the informant was again searched and found to be free of any currency or contraband.

On December 7, 2011, the police arrested Harp and her son. After the police provided Harp with her Miranda warnings, Harp signed and initialed a Constitutional Rights Form, acknowledging that she was given her rights and understood those rights.[1] Harp then gave a formal statement to police admitting that she had sold the informant prescription Percocet on two occasions, once while inside of her Ford Mustang, and that she had received either twenty or forty dollars each for the pills.

After a preliminary hearing, Harp, through counsel, filed an omnibus pre-trial Motion seeking to suppress Harp's statement to the police based upon the fact that her purported signature on the Constitutional Rights Form was forged. On January 4, 2013, the Honorable Joseph A. Smyth conducted a hearing on the Motion to suppress. At the suppression hearing, Detective Sergeant Steven James Ziegler ("Ziegler") testified that prior to speaking with Harp, he advised her of her Miranda rights, both orally and in writing, and that she acknowledged her rights by initialing next to each paragraph and signing the Constitutional Rights Form. Harp introduced various court documents that she had signed to demonstrate that her signature was not on the Constitutional Rights Form. After reviewing the evidence, the trial court denied Harp's Motion to suppress, finding that Harp had signed the Constitutional Rights Form and had been advised of her Miranda rights.

The case proceeded to a bench trial, after which the trial court found Harp guilty of the above-mentioned crimes. Subsequently, Harp was sentenced to two concurrent prison terms of two to four years, followed by one year of probation, and a $5, 000 fine. Harp filed a timely Notice of appeal. Pursuant to a court Order, Harp's counsel filed a Statement of intent to file an Anders brief in lieu of a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

On appeal, Harp's counsel has filed a brief pursuant to Anders that raises the following questions for our review:

[1.] Did the trial court err in denying [Harp's] Motion to suppress her statement to police?
[2.] Did the Commonwealth present sufficient evidence to support [Harp's] convictions for delivery of a controlled substance, criminal use of a communications facility, and possession of drug paraphernalia?
[3.] Is the sentence of two to four years of incarceration imposed upon [Harp] for her conviction of delivery of a ...

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