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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NON-PRECEDENTIAL DECISION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 controlled substance a legal sentence?

Anders Brief at 5 (capitalization omitted). Harp's counsel also filed a separate Petition to withdraw as counsel with this Court on May 16, 2013. Harp filed neither a pro se brief, nor retained alternate counsel for this appeal.

"[W]e note that when faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) (citation, brackets, and quotation marks omitted). Pursuant to Anders, when counsel believes an appeal is frivolous and wishes to withdraw representation, he must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguable support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court's attention.

Commonwealth v. Curry, 931 A.2d 700, 701 (Pa. Super. 2007) (citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second requirement of Anders, i.e., the contents of an Anders brief, requiring that an Anders brief

(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. "Once counsel has satisfied the [Anders] requirements, it is then this Court's duty to conduct its own review of the trial court's proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous." Edwards, 906 A.2d at 1228 (citation omitted).

In the instant case, we conclude that Harp's counsel has substantially complied with each of the requirements of Anders. See Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel needs to substantially comply with the requirements of Anders). Harp's counsel attests to conscientiously examining the record and determining that an appeal would be frivolous. Further, counsel's Anders brief comports with the requirements set forth by our Supreme Court in Santiago. Finally, the record contains a copy of the letter that counsel sent to Harp, stating counsel's intention to withdraw and advising Harp of her right to retain new counsel and file additional claims, or to proceed pro se. Because Harp's counsel has substantially complied with the procedural requirements for withdrawing from representation, we will review Harp's claims on appeal.

In her first claim, Harp contends that the trial court erred in denying her Motion to suppress her statement to police. Anders Brief at 12, 15. Harp asserts that the police subjected her to a custodial interrogation, but did not advise her of her Miranda rights. Id. at 13, 15. Harp further challenges the validity of the initials and signature on the Constitutional Rights Form, which is designed to ensure compliance with the mandates of Miranda. Id. at 12, 15.

Our standard of review of a denial of a motion to suppress is as follows:

Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
In addition, [i]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony. The suppression court is also entitled to believe all, part or none of the evidence presented. Finally, at a suppression hearing, the Commonwealth has the burden of establish[ing] by a preponderance of the evidence that the evidence was properly obtained.

Commonwealth v. Galendez, 27 A.3d 1042, 1045-46 (Pa. Super. 2011) (en banc) (citations and quotation marks omitted). "[I]n reviewing [a] suppression claim, we are bound by the record as created at the suppression hearing." Commonwealth v. Ventura, 975 A.2d 1128, 1136 (Pa. Super. 2009) (citation omitted).

Additionally, "[a] confession obtained during a custodial interrogation is admissible where the accused's right to remain silent and right to counsel have been explained and the accused has knowingly and voluntarily waived those rights." Commonwealth v. Parker, 847 A.2d 745, 748 (Pa. Super. 2004) (citation omitted). "The test for determining voluntariness of a confession and whether an accused knowingly waived his or her rights looks to the totality of the circumstances surrounding the giving of the confession." Id. (citation omitted). "The Commonwealth bears the burden of establishing whether a defendant knowingly and voluntarily waived [her] Miranda rights." Id.

In the instant case, Ziegler testified at the suppression hearing that he spoke to Harp while Harp was handcuffed and sitting in the vestibule of the West Pottsgrove Police Department. N.T., 1/4/13, at 15. After informing Harp that she was under arrest and in custody, Ziegler read Harp her constitutional rights and Miranda warnings. Id. at 13. Ziegler testified that Harp then initialed each sentence and signed the bottom of a Constitutional Rights Form, acknowledging that she was informed of and understood her rights. Id. Both Ziegler and another officer also signed the form as witnesses. Id. According to Ziegler, Harp then spoke to Ziegler and gave a statement admitting the crime, which, after being typed and printed, was initialed and signed by Harp. Id. at 26-28.

At the suppression hearing, Harp testified that she never saw nor signed the Constitutional Rights Form. Id. at 34. Pointing to various characteristics of the writing on the form which did not conform to her own writing, she averred that the signature and initials were forged by the arresting officers. Id. at 41-47. Harp also testified that she was not under the influence of alcohol or drugs, other than her prescribed dosage of medication, at the time she gave her statement to the police. Id. at 37.

After hearing Ziegler and Harp's testimony and conducting a comparison of Harp's initials and signatures, the suppression court found that Harp had been advised of her Miranda rights in the manner testified to by Ziegler. Id. at 57-58. We will not disturb the credibility determination of the suppression court. See Galendez, 27 A.3d at 1046. Thus, based on our standard of review, we conclude that the trial court did not err in denying Harp's Motion to suppress her statement.

In her second claim, Harp contends that the evidence was insufficient to support her convictions for delivery of a controlled substance, criminal use of a communications facility, and possession of drug paraphernalia. Anders Brief at 17.

Our standard of review is as follows:

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. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part, or none of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en banc) (citation omitted).

A person commits the offense of delivery a controlled substance if he or she knowingly makes an actual, constructive, or attempted transfer of a controlled substance to another person without the legal authority to do so. See 35 Pa.C.S.A. § 780-113(a)(30); see also Commonwealth v. Murphy, 844 A.2d 1228, 1233-34 (Pa. 2004).

Here, Roeder testified that prior to each controlled buy, he searched the confidential informant, found him to be free of currency or contraband, and provided him with "buy money." N.T., 1/4/13, at 66, 75. Roeder further testified that during the first controlled buy, he observed a hand-to-hand exchange between the informant and Harp, and that during the second controlled buy, he observed the informant enter Harp's vehicle. Id. at 71, 76-77. Roeder also testified that following both controlled buys, the informant returned with Percocet pills and, after being searched, was found to be free of currency or contraband. Id. at 72, 78, 80. Moreover, in her statement to police, which was incorporated from the suppression hearing at trial, Harp admitted to selling the informant Percocet pills on two occasions. Id. at 82-83. Therefore, we conclude that the evidence, deemed credible by the fact-finder and viewed in a light most favorable to the Commonwealth, was sufficient to sustain Harp's conviction for delivering a controlled substance conviction. See Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. Super. 1994) (concluding that evidence was sufficient to support a finding that defendant engaged in prohibited delivery of controlled substance where the defendant transferred a bag of marijuana to informant upon receipt of sixty dollars).

Further, to find a defendant guilty of criminal use of a communication facility, the defendant must have: (1) knowingly and intentionally used a communication facility; (2) to knowingly, intentionally, or recklessly facilitate a felony; and (3) the underlying felony occurred. See 18 Pa.C.S.A. § 7512; see also Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004). The statute defines communication facility to include, inter alia, a telephone. 18 Pa.C.S.A. § 7512(c).

Here, Roeder testified that he had observed the confidential informant telephone Harp and arrange the purchase of her Percocet pills on two separate occasions. N.T., 1/4/13, at 65, 75. Further, as we have concluded above, there was sufficient evidence to establish that the felony of delivering a controlled substance occurred immediately following each telephone call. Accordingly, the evidence, deemed credible by the fact-finder and viewed in a light most favorable to the Commonwealth, was sufficient to sustain Harp's conviction for criminal use of a communication facility. See Moss, 852 A.2d at 384 (concluding that evidence was sufficient to support conviction for criminal use of a communication facility where defendant engaged in telephone conversations with a confidential informant, and the conversations led to a controlled buy transaction between defendant and informant).

Finally, "[t]o sustain a conviction for possession of drug paraphernalia, the Commonwealth must establish that the items possessed by defendant were used or intended to be used with a controlled substance so as to constitute drug paraphernalia and this burden may be met by the Commonwealth through circumstantial evidence." Commonwealth v. Coleman, 984 A.2d 998, 1001 (Pa. Super. 2009) (citation omitted). Items used to package or store narcotics constitute paraphernalia under the statute. Id.

Here, Roeder testified that following the second controlled buy, the confidential informant returned with eight Percocet pills wrapped in cellophane. N.T., 1/4/13, at 78. Roeder's credible testimony established that the cellophane wrapper was used to store the Percocet. See Coleman, 984 A.2d at 1002 (concluding that officer's testimony that appellant used glass vials, a glassine baggie, and a sock to store crack cocaine was sufficient for conviction of possession of drug paraphernalia). Thus, we conclude that the evidence was sufficient to sustain Harp's conviction for possession of drug paraphernalia.

In her final claim, Harp argues that the imposition of two to four years in prison for her conviction of delivery of a controlled substance was illegal. Anders Brief at 24.

Here, Harp was found guilty of delivering sixteen Percocet pills totaling 8.44 grams in weight. See N.T., 1/4/13, at 108; see also Criminalistics Report, 6/22/11, at 1, 3 (unnumbered). Percocet contains oxycodone, an opioid, which is a Schedule II controlled substance. See 35 P.S. § 780-104(2); Commonwealth v. James, 46 A.3d 776, 779 n.6 (Pa. Super. 2012); see also N.T., 1/4/13, at 74, 79; Criminalistics Report, 6/22/11, at 1, 3 (unnumbered). Pursuant to section 7508(a)(2)(i) of the Crimes Code, any person convicted of the delivery of a Schedule II controlled substance where the aggregate weight of the compound is between two and ten grams is subject to a mandatory minimum prison term of two years. 18 Pa.C.S.A. § 7508(a)(2)(i). Given that the Commonwealth sought to impose the mandatory minimum sentence upon Harp, the trial court was without discretion to sentence Harp to any term less than two years in prison. See id. § 7508(c). Further, pursuant to 35 P.S. § 780-113(f)(1), Harp faced a maximum penalty of fifteen years in prison for her conviction of delivering a Schedule II narcotic drug. Accordingly, we conclude that the imposition of two to four years in prison for the conviction of delivery of a controlled substance was not an illegal sentence.

Based upon the foregoing, we grant counsel's Petition to withdraw.

Petition to withdraw granted; Judgment of sentence affirmed.


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