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[U] Commonwealth v. Tiedemann

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY J. TIEDEMANN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered on February 13, 2013 in the Court of Common Pleas of Franklin County, Criminal Division, No. CP-28-CR-0000981-2012

BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Timothy J. Tiedemann ("Tiedemann") appeals from the judgment of sentence imposed after a jury convicted him of possession of drug paraphernalia.[1] Additionally, Tiedemann's court-appointed counsel, Michael J. Toms, Esquire ("Attorney Toms"), has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and a Petition requesting permission to withdraw as counsel. We grant counsel's Petition and affirm Tiedemann's judgment of sentence.

On June 24, 2011, Tiedemann called 911 and requested that an ambulance be sent to his residence. N.T., 1/31/13, at 14, 48. The dispatcher contacted Pennsylvania State Troopers Keith Sobecki and Nathan Swink, who responded to Tiedemann's residence. Id. at 14. Trooper Sobecki testified that he knocked on the front door and Tiedemann allowed the Troopers to enter his residence.[2] Id. According to Trooper Sobecki, Tiedemann stated that "he was intoxicated, [and] he needed an ambulance and wanted to go to the hospital." Id. at 15. While inside of Tiedemann's residence, Trooper Sobecki saw "five to six syringes[, and a] spoon with a burnt bottom lying on the floor in plain view …." Id. After noticing these items, Trooper Sobecki asked Tiedemann what he used the items for and whether he had any medical condition for which he was prescribed intravenous medication. Id. at 16. According to Trooper Sobecki, Tiedemann replied that "he was a genius and he used heroin approximately two weeks ago …." Id. Shortly thereafter, an ambulance and emergency responders arrived and transported Tiedemann to a local hospital for treatment. Id. at 16, 51. The police subsequently arrested Tiedemann and charged him with possession of drug paraphernalia. Id. at 16.

At Tiedemann's jury trial, the Commonwealth introduced into evidence the syringes and spoon that the Troopers found in Tiedemann's residence. Id. at 17-21. Tiedemann testified and maintained that he did not use the evidence in question for consuming heroin or any other controlled substance. Id. at 50, 54. Additionally, Tiedemann pointed out that the police did not find any controlled substances in his residence. Id. at 51.

Over the objection of Tiedemann's defense counsel, the trial court permitted the Commonwealth to call Pennsylvania State Trooper Rodney Fink ("Trooper Fink") to testify as an expert on the issue of the investigation of drug offenses. Id. at 36-39. Regarding the spoon and syringes found in Tiedemann's residence, Trooper Fink testified as follows concerning this evidence: "This is common in what we find with someone that's using heroin. They would place the heroin on top of the spoon and hold a flame source … underneath to cook it" in order "[t]o draw it into a syringe …." Id. at 43-44.

At the close of trial, the jury found Tiedemann guilty of possession of drug paraphernalia. The trial court subsequently sentenced him to serve thirty days to one year in jail. Tiedemann filed post-sentence Motions, challenging the sufficiency and weight of the evidence supporting his conviction, which the trial court denied. Attorney Toms then timely filed a Notice of Appeal on behalf of Tiedemann, after which the trial court ordered Tiedemann to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Attorney Toms timely filed a Rule 1925(b) Concise Statement, raising three separate allegations of trial court error. In response, the trial court issued an Opinion.

In July 2013, Attorney Toms filed an Anders Brief and an accompanying Petition to Withdraw as Counsel with this Court, asserting that Tiedemann's appeal was frivolous.

We must first address whether Attorney Toms has complied with the dictates of Anders and its progeny in petitioning to withdraw. See Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006). Pursuant to Anders, when counsel believes that an appeal is frivolous and wishes to withdraw from representation, he/she 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 arguably 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.

Edwards, 906 A.2d at 1227 (citation omitted). Additionally, the Pennsylvania Supreme Court has explained that a proper Anders brief 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. "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 and brackets omitted).

Our review of Attorney Toms's Anders Brief and Petition to Withdraw reveals that he has complied with the requirements of Anders and its progeny. The Anders Brief complies with each of the requirements set forth in Santiago, supra. The record further reflects that Attorney Toms has (1) provided Tiedemann with a copy of both the Anders Brief and Petition to Withdraw; (2) sent a letter to Tiedemann advising him of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of this Court's attention;[3] and (3) attached a copy of this letter to the Petition to Withdraw, as required under Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa.Super. 2005). Accordingly, we must next examine the record and make an independent determination of whether Tiedemann's appeal is, in fact, wholly frivolous.

Since Attorney Toms has filed an Anders Brief, he does not raise any issues on Tiedemann's behalf in the Statement of Questions Presented section of the brief. However, in the Argument section, Attorney Toms explains that Tiedemann wishes to challenge whether (1) there was sufficient evidence presented at trial to sustain Tiedemann's conviction of possession of drug paraphernalia, see Anders Brief at 13; (2) the conviction was against the weight of the evidence, id. at 12; and (3) the trial court erred in permitting Trooper Fink to testify as an expert at trial, id. at 14; se ...


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