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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NON-PRECEDENTIAL DECISION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; see also Tiedemann's Rule 1925(b) Concise Statement, 5/14/13, at 1-2 (unnumbered) (wherein Tiedemann preserved each of these three issues for appeal).

In its Opinion, the trial court thoroughly addressed each of Tiedemann's three issues, ably set forth the applicable standards of review and relevant law, and correctly determined that each issue lacked merit. See Trial Court Opinion, 6/11/13, at 2-9. Because the trial court's sound rationale is supported by the law and competent evidence of record, we adopt it herein by reference in rejecting Tiedemann's issues. Id.

Because we are convinced that Tiedemann's appeal is wholly frivolous and that there are no non-frivolous issues to be considered, we affirm the judgment of sentence and grant Attorney Toms permission to withdraw as counsel under the precepts of Anders.

Judgment of sentence affirmed; Petition to Withdraw as Counsel granted.

Judgment Entered.

IN THE COURT OF COMMON PLEAS OF THE 39th JUDICIAL DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania,

v.

Timothy Tiedemann, Defendant

Criminal Action No. 981-2012

Honorable Carol L. Van Horn

STATEMENT OF THE CASE

Defendant was charged with Possession of Drug Paraphernalia, in violation of 35 P.S. 780-1113(a)(32). On January 31, 2013, Defendant was found guilty after a jury trial. On February 13, 2013, Defendant was sentenced to 30 days to 12 months in the Franklin County Prison. Defendant filed an Optional Post-Sentence Motion, which consisted of a Motion for Judgment of Acquittal and a Motion for New Trial, on February 19, 2013 and this Court set a hearing on the Defendant's Motion. On April 16, 2013, this Court convened for a hearing on the Defendant's Motion. Defense counsel was unprepared to make argument on the Defendant's Motion at the April 16, 2013 hearing, but agreed to permit this Court to rule based on its memory of the jury trial. This Court denied both the Motion for Judgment of Acquittal and Motion for New Trial.

Defendant filed a Notice of Appeal on April 29, 2013. Pursuant to a Court Order dated May 1, 2013, Defendant filed a Concise Statement of Matters Complained of on Appeal ("Statement") on May 14, 2013. Defendant raises three issues on appeal in his Statement. First, "[w]hether the trial court committed error when it permitted, over defense objection, PSP Trooper Rodney Rink to testify as an expert witness in the investigation of drug offenses and, in particular, heroin drug offenses?" Second, "[w]hether the trial court committed error when it denied Defendant's Post-Sentence Motion for Judgment of Acquittal based upon insufficient evidence?" Third, "[w]hether the trial court committed error when it denied Defendant's Post-Sentence Motion for a New Trial on the basis that the weight of the evidence did not support a verdict of guilty?" The Court now responds to Defendant's Statement though this Opinion pursuant to Pa.R.A.P. 1925(a).

DISCUSSION

Issue #1: Expert Witness Testimony

The Defendant first argues that this Court erred when it allowed Pennsylvania State Police Trooper Rodney Fink to testify as an expert witness in the investigation of drug offenses and, in particular, heroin drug offenses.

The testimony of an expert witness is admissible to assist the trier of fact in understanding the evidence or determining a fact in issue. See Pa. R.E. 702. Our Supreme Court has set forth the following test for courts to apply regarding expert witnesses:

The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.

Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995). The admission of expert testimony is within the discretion of the trial court. See Commonwealth v. Davies, 811 A.2d 600, 603 (Pa.Super. Ct. 2002). The decision is to be based solely on whether the expert's opinion will aid the jury in finding the truth of the issues involved. Commonwealth v. Young, 524 Pa. 373, 389, 572 A.2d 1217, 1225 (1990). If the judge determines that a witness is qualified to testify as an expert, it is then the role of the jury to determine how much weight to assign to that witness's testimony; the jury is free to believe all, part or none of the evidence. See Potochnick v. Perry, 861 A.2d 277, 286 (Pa.Super. 2004).

In the instant case, Pennsylvania State Police Trooper Rodney Fink was qualified to testify as an expert on the issue of the investigation of drug offenses and, in particular, heroin drug offenses. Trooper Fink has been with the Pennsylvania State Police since May 2005 and, while at the police academy, he received training in investigation of narcotics violations, identification of both paraphernalia and the substances themselves. See Transcript of Jury Trial, Jan. 31, 2013 ("Tr."), at 40-42. He also attended training at the Northeast Counterdrug Training Center, which was a week-long, very intensive training regarding narcotics investigations, which covered working with informants, the identification of substances, to the prosecution of the cases. See id. In addition to his formal training, Trooper Fink has been assigned to the vice narcotics unit for the last year and a half. See id. He is also assigned to the Franklin County Drug Task Force, whose main function is to investigate violations of the drag and narcotics trade. See id. Trooper Fink testified that the most valuable "training" he has received is his time on the street, dealing with the investigations themselves. See id. He has been involved in over 300 drag investigations, with at least 75 of those being investigations involving heroin. See id.

Given Trooper Fink's formal training and involvement with vice narcotics unit and the Drag Task Force, this Court determined that he has "specialized knowledge on the subject under investigation, " and would assist the jury in understanding the evidence. Therefore, Trooper Fink was qualified to testify on the matter of drag investigations and specifically heroin investigations. The Defendant, in his cross-examination of the witness, solicited testimony from Trooper Fink regarding the fact he was not involved with this specific case, nor did he know if the details of the case prior to the day of trial. It is the responsibility of the jury to determine how much weight to assign Trooper Fink's testimony, given those facts. However, on the limited issue of whether he was qualified to testify, that is left to the discretion of this Court. Based on Trooper Fink's training and experience, this Court did not err in permitting him to testify as an expert.

Issue #2: Sufficiency of the Evidence

The Defendant alleges that this Court erred when it denied his Post-Sentence Motion for Judgment of Acquittal based upon insufficient evidence. This Court disagrees. The standard of review for challenges to the sufficiency of evidence is well established:

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. Reynolds, 835 A.2d 720, 725-26 (Pa.Super. Ct. 2003). A challenge to the sufficiency of the evidence is a question of law. See id. at 726. The appellate court may not substitute its judgment for that of the fact-finder. See Commonwealth v. Mack, 850 A.2d 690, 693 (Pa.Super. Ct. 2004). Rather, doubts regarding guilt must be resolved by the jury 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." Id.

The facts and circumstances established by the Commonwealth need not preclude all possibility of innocence. See id. Further, the elements of an offense may be found by means of wholly circumstantial evidence. See id. The court must review the entire record, and "all evidence actually received must be considered." Id. The trier of fact, in passing upon the credibility of witnesses, is free to believe all, part or none of the evidence. See id. As a result, the uncorroborated testimony of a victim, if believed, is sufficient to convict a defendant. See id. Finally, our appellate courts have established, that "it is the function of the jury to evaluate evidence adduced at trial" so that if "the verdict is based on substantial, if conflicting evidence, it is conclusive on appeal." Reynolds, 835 A.2d at 726 (citations omitted).

Defendant was convicted of possession of drug paraphernalia in violation of 35 P.S. § 780-113 (a)(32). The paraphernalia in question is syringes and a spoon. The Superior Court has clearly stated that "[t]o sustain a conviction for possession of drug paraphernalia the Commonwealth must establish that 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 Commonwealth through circumstantial evidence." Commonwealth v. Little, 879 A.2d 293, 300 (Pa.Super. 2005). Drug paraphernalia is defined as

"all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act."

35 P.S. 780-102. Additionally,

"[i]n determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, statements by an owner or by anyone in control of the object concerning its use, prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance, the proximity of the object in time and space, to a direct violation of this act, the proximity of the object to controlled substances, the existence of any residue of controlled substances on the object, ... the existence and scope of legitimate uses for the object in the community, and expert testimony concerning its use."

Commonwealth v. Torres, 421 Pa.Super. 233, 617 A.2d 812, 815 n. 5 (1992), appeal denied, 535 Pa. 618, 629 A.2d 1379 (1993) (quoting 35 Pa.Stat. § 780-102(b)).

Taking the evidence presented at trial in the light most favorable to the verdict winner, the Commonwealth, this Court determined that there was sufficient evidence to support the Defendant's conviction.

Defendant first argues that the Commonwealth did not prove beyond a reasonable doubt that Defendant possessed the items to use for illegal purposes because "there was no testimony saying exclusively the public could not purchase the items legally outside a doctors [sic] order" and further that "the only circumstantial evidence then, was that in past experiences items like those could be used for drug use; although they could be used for legal purposes as well." Defendant's Amended Optional Post-Sentence Motions to Pa.R.Crim.P. 720(B) at 3. The Defendant does not cite, nor can this Court find, case law to support Defendant's assertion that drug paraphernalia can only be items that cannot legally be obtained but for a doctor's order. In fact, Pennsylvania courts have repeatedly found every day, household items to be drug paraphernalia in the right context. See Commonwealth v. Torres, 617 A.2d 812 (Pa.Super. 1992)(holding that three unopened boxes of sandwich bags were drug paraphernalia when they were found within the same automobile where seventeen packets of cocaine wrapped in the end of sandwich bags was also found), see also Commonwealth v. Coleman, 984 A.2d 998 (Pa.Super. 2009)(holding that glass vials, glassine baggie, and a sock were drug paraphernalia because they were used to store, contain, and conceal crack cocaine).

Further, there was evidence offered at trial that, if viewed in the light most favorable to the Commonwealth, would allow the jury to find that the Commonwealth had proved that the Defendant possessed these items for illegal purposes. Trooper Keith Sobecki testified that spoons do not typically have burn marks on the bottom unless it has been used to heat something up and that the spoon's presence alongside needles suggests illegal activity was taking place. See Tr. at 16. Trooper Sobecki also testified that the Defendant, in response to his question whether the Defendant knew what those items were for, said that "he was a genius and he used heroin approximately two weeks ago." Id. Trooper Fink testified that the spoon had residue on the top and black burn marks on the bottom, which is consistent with what you would find with someone that's using heroin. See Tr. at 43. Trooper Fink also testified that the needles that were offered as evidence appeared to have been used because one had a bit of blood or red coagulation on its tip and the safety caps were discarded. See id. at 44. The Defendant testified and tried to explain that the items were used for working on electronics or models and that he was "being sarcastic about stuff when he told the Troopers that he had done heroin two weeks prior. See id. at 50. Despite such explanation, there was sufficient evidence presented in the Commonwealth's case-in-chief that would allow the jury to find that the items possessed by defendant were used or intended to be used with a controlled substance and that those items are drug paraphernalia, as defined above. Therefore, this Court did not err in denying the Defendant's Post-Sentence Motion for Judgment of Acquittal.

Issue #3: Weight of the Evidence

Defendant next argues that this Court erred when it denied Defendant's Post-Sentence Motion for a New Trial because the weight of the evidence presented at trial did not prove his guilt beyond a reasonable doubt.

A verdict is against the weight of the evidence where it is "so contrary to the evidence as to shock one's sense of justice and make the award of a new trial imperative." Commonwealth v. Hudson, 955 A.2d 1031, 1035 (Pa.Super. Ct. 2008). Our Supreme Court has set forth the standard of review on this issue:

A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice.

Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). It is axiomatic that the jury is entitled to believe "all, part, or none of the evidence, and credibility determinations rest solely within the purview of the fact-finder." Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005). A jury is not obligated to believe any testimony and the weight to be ascribed to testimonial or documentary evidence presented is a determination resting solely with the finder of fact. See Commonwealth v. Flor, 998 A.2d 606, 626 (Pa. 2010). A new trial is not properly granted based upon "a mere conflict in the testimony" and must be based on more than a reassessment of the C?G5 credibility of witnesses. Commonwealth v. Brace, 916 A.2d 657, 665 (Pa.Super. Ct. 2007). The Court is not sitting as a thirteenth juror. See id. Rather, the Court must 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." Id. (citing Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)).

This Court does not find that the Defendant's conviction is "so contrary to the evidence as to shock one's sense of justice and make the award of a new trial imperative." As described above, Trooper Sobecki testified as to the syringes and spoon with a burnt bottom being found in the Defendant's home. When questioned by Trooper Sobecki about the items, the Defendant admitted to having used heroin two weeks prior. Trooper Fink testified that the burnt bottom of the spoon is consistent with someone having used the spoon to heat up heroin for injecting it into his body. This Court will not second-guess the findings of the jury as to the weight it gave to the testimony and evidence offered during the trial and its determination that the Defendant is guilty of this crime. The jury's findings were reasonable given the evidence presented to it at trial and were not "so contrary to the evidence to shock one's sense of justice." Therefore, this Court did not err in denying the Defendant's Post-Sentence Motion for New Trial.

CONCLUSION

Trial courts have the discretion to permit individuals who have specialized knowledge in a subject under investigation to testify as an expert witness. Trooper Fink, based on his formal training and his experience's specialized knowledge on the topic of drug investigations and specifically those regarding heroin, and therefore this Court had the discretion to allow him to testify at the Defendant's jury trial. Further, the evidence offered at trial was sufficient for the jury to find that the Commonwealth had proved each element of the crime beyond a reasonable doubt and the Defendant's conviction was not so contrary to the evidence to shock one's sense of justice. Therefore, this Court did not err in permitting Trooper Fink to testify nor in denying Defendant's Motion for Judgment of Acquittal and Motion for New Trial and this Court respectfully requests that the Superior Court dismiss the appeal of the Defendant.


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