Com. v. Harding, J.

J-S33043-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOSHUA MOSHA HARDING, :

:

Appellant : No. 1373 MDA 2016

Appeal from the Judgment of Sentence April 29, 2016

in the Court of Common Pleas of York County,

Criminal Division, at No(s): CP-67-CR-0007614-2013

BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 02, 2017

Joshua Mosha Harding (Appellant) appeals from his April 29, 2016

aggregate judgment of sentence of four to eight years of imprisonment after

he was found guilty of possession with the intent to deliver a controlled

substance, aggravated assault, escape, and simple assault. Counsel has

filed a petition to withdraw and a brief pursuant to Anders v. California,

386 U.S. 738 (1967). We deny counsel’s motion to withdraw and remand

for counsel to file an advocate’s brief.

The trial court summarized the evidence offered at trial as follows.

The Commonwealth presented five (5) witnesses at trial,

who are Trooper James O’Shea (“O’Shea”), Officer Matthew Kile

(“Kile”), Trooper Jeffrey Gotwals (“Gotwals”), Detective Craig

Fenstermacher (“Fenstermacher”) and Ms. Holly Urban

(“Urban”).

*Retired Senior Judge assigned to the Superior Court.

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On September 23, 2013, [] O’Shea and [] Kile went to the

upstairs apartment of 312 East Middle Street, Hanover,

Pennsylvania (“the residence”) with arrest warrants for Joseph

Weaver (“Weaver”) and Urban for delivery of controlled

substances, including heroin and [the prescription opioid] Opana.

Both O’Shea and Kile wore their tactical vests to the residence,

and O’Shea’s vest included the words “State Police” on the front.

Similarly, Kile’s vest had the words “police” on the front of the

vest. Prior to that date, O’Shea had worked undercover, where

[he] had made drug purchases outside the residence and in the

residence’s kitchen.

Earlier that day on September 23, Appellant went to the

residence, wearing a dark blue jacket, and Urban confirmed that

Exhibits 30 and 21 were pictures of the same jacket Appellant

wore (“the jacket”). Appellant went to the residence because

Urban owed him money, partially for drugs. After arriving,

Appellant took off the jacket and placed it on the back of a chair.

Urban testified that Weaver, who was her boyfriend at the time

the incident occurred, did not own that jacket or a similar one

and that the jacket would not fit Weaver since it would be too

big for Weaver.

Urban saw what she described as drugs in Appellant’s hand

in her kitchen. When asked which one it was, Urban identified a

bag in Exhibit 28, that Defense Counsel pointed out was “the one

with rice in it,” [t]hough, on September 23, Urban believed it

was heroin “because she tried to inject it” around 5:00 p.m. and

because [Appellant] had told her the baggy contained heroin,

though she did not feel high after injecting it. She was not high

before [Appellant] had gotten to their residence, and she stated

that she had drug paraphernalia but not any other drugs in the

house.

Once they arrived at the residence, O’Shea and Kile

knocked on the residence’s door, where Urban, who was inside

the residence, asked who they were. O’Shea stated “yo, it’s

Jimmy,” and she let them inside. Once Urban opened the door,

O’Shea saw Weaver sitting near the end of the table on the right

side, and [Appellant] sat on the table’s left side, “with his back

against the wall.” Then, O’Shea advised Urban and Weaver of

the arrest warrants and that they would take them into custody.

After he advised Urban and Weaver, O’Shea handcuffed Urban

near the front door, and Kile attempted to put Weaver in

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handcuffs; however, Kile was unable to put the handcuffs on

Weaver, due to Weaver’s arm being disabled.

After handcuffing Urban, O’Shea asked for Appellant’s

identification and name, but Appellant said nothing. Instead,

Appellant stood and walked around the table. Suspecting that

“something just wasn’t right,” O’Shea informed Appellant that he

was going to handcuff him for safety reasons. [] O’Shea

instructed Appellant to “put his hands behind his back.”

Meanwhile, Kile saw O’Shea interacting with Appellant and had

heard their voices become heightened. During the trial, O’Shea

testified that [Appellant] was not free to leave once O’Shea

instructed Appellant about the handcuffs.

On cross-examination, O’Shea testified that he

remembered the clicking of handcuffs, but he did not visually

remember if he had “put one handcuff on [Appellant].”

According to O’Shea on direct examination, “I remember hearing

the clicking of the handcuffs, at which point [Appellant] pulled

away with his right arm and swung back around and struck me

in the right side of my face.”

Urban and Kile also testified about this first strike. Urban

testified that she saw Appellant put his hands behind his back

and saw Appellant punch Trooper O’Shea’s right side of his head.

Urban says that O’Shea was hit several times, but this

contradicts O’Shea’s and Kile’s testimony that it was one time.

Detective Kile also witnessed this event and provided

additional testimony about this initial strike. Kile testified that

before Kile could place Weaver into custody, he saw Appellant

“swing -- lunge a closed fist at Trooper O’Shea.” Specifically,

Kile “observed [Appellant’s] arm going towards Trooper O'Shea’s

head.” When the Commonwealth asked Kile about if he had

“observe[d] any part of [Appellant’s] body or anything connected

to [Appellant’s] body make Contact with Trooper O’Shea,” Kile

responded that “it would have been his hand hitting Trooper

O’Shea's head. I saw Trooper O’Shea heading towards the

ground.”

After Appellant struck O’Shea, Kile attempted to take

Appellant’s “legs out from underneath him to put him onto the

ground so that he could successfully be placed into custody,” but

Appellant broke free of this attempt. Specifically, Kile and

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Appellant fell onto the kitchen table, and then onto the ground.

When both stood, Appellant was free. When the Commonwealth

asked about whether Appellant “kick[ed] or push[ed] or in any

way tr[ied] to push off [Kile] to get away,” Kile responded that

“it would have been pushing, like a wrestling match, kind of

pushing me down to get up kind of thing.” [] Kile’s neck had

minor scratches from the altercation. Then, Kile saw blood

running down O’Shea’s head.

Urban testified that Weaver and she stood “by the doorway

from the kitchen into the hallway” and at no point did they get

into the fight or move toward the kitchen. Urban also stated

that she and Weaver were always in the officer’s sight and in

handcuffs.

After the altercation, Kile placed Weaver into custody by

handcuffing him and having him sit against the wall next to

Urban, and then put handcuffs on Appellant, while he was lying

down. Appellant, Weaver, and Urban were removed from the

residence, and at no point were Appellant, Weaver or Urban left

without police supervision inside the house. It should be noted

though, for thoroughness that Kile did not do a pat down of

Urban or Weaver.

The evidence showed pictures of the inside of O’Shea[’s]

lip, which was split open on September 23 and required three

staples at the emergency room. As a result of the September

23rd events, O’Shea has suffered memory loss, including about

the incident with Appellant. In fact, O’Shea did not remember

being struck by [Appellant] after the initial strike. Further,

O’Shea’s finger was broken during the altercation with Appellant

and needed to be splinted, and O’Shea required an unspecified

number of staples for the laceration on his head.

Jeffrey Gotwals was the lead criminal investigator, who

performed an investigation on September 23, 2013 at that

address, starting at 2017 hours. Trooper Scott Denisch, Trooper

Deanna Sell (the forensic unit technician), and Corporal Wise

(who was Gotwal’s crime supervisor) assisted him. Deanna Sells

physically picked up the evidence, and Gotwals observed. One

of the items picked up was “a blue jacket that says New York on

the back.” Gotwals saw the jacket on a chair at the kitchen

table, and he states that the jacket “was off to the left by the

window where the table was when Trooper O’Shea entered the

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room.” A picture of the jacket was taken after going through the

jacket’s pockets and upon Corporal Wise discovering “a baggy

with rice and little packets of heroin” from the jacket pockets.

Some of the items found in the jacket were field tested

positive for heroin. Gotwals then sent them to a lab in

Harrisburg for further testing. The results of the items that

Gotwals sent came back were: “Substance of Item 2.1 weighing

2.7 grams contained heroin, Schedule I drug.” Gotwals noted

that the rice found inside one of the bag as well as packets can

be used for selling heroin, and some of the bags were stamped

with the words “funny money.”

Further, a wallet was found on the front porch downstairs.

Money, Appellant’s Social [S]ecurity card, a driver’s license for a

woman named Diana Negron and some Access cards were in the

wallet. Besides the heroin found in the jacket, no other drugs

were found in the kitchen or in plain view in the apartment.

Lastly, three cell phones were collected. Weaver and Urban

reported to investigators that one of the cellphones belonged to

Weaver and Urban and that the other two belong to Appellant.

During the trial, [] Fenstermacher was qualified as an

expert in the area of “how drugs are packaged and sold in York

County.” In York County, “[v]ery small amounts of heroin are

typically packaged in small wax or glassine bags.” If it’s more

than a very small amount of heroin, the heroin “can be put in a

plastic bag in baggy corners.” Fenstermacher looked at a copy

for the Pennsylvania State Police laboratory report for this case,

which provided two of the discovered bags of heroin’s weights as

2.74 grams and 1.1 grams for a total of 3.84 grams of heroin.

The street value of 3.84 grams would be approximately $1,600

street value. Exhibit 28 included 45 glassine bags with a stamp

on each, and these were used by Kathie Martin who prepared the

report.

Fenstermacher stated that the items were packaged in a

way that is consistent with packaging heroin in the county.

Fenstermacher further stated that “typically, [Access cards and

other forms of identity] ... may be traded for drugs” or used as

collateral. When the Commonwealth asked whether

Fenstermacher had an opinion about the intent to distribute the

heroin, Fenstermacher testified that “based on the manner, the

location, the quantity and the surrounding factors, I do ... My

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belief is that this heroin was possessed for the purposes of

distribution to another person.” His opinion was held to “a

reasonable degree of professional certainty as it relate[d] to

[Fenstermacher’s] experience.”

Trial Court Opinion, 10/18/2016, at 4-13 (footnotes omitted).

Prior to trial Appellant filed a motion to suppress the evidence,

averring he was unlawfully arrested. The trial court denied the motion as

untimely filed. Following a jury trial, Appellant was found guilty of the

aforementioned crimes and sentenced soon thereafter. Appellant timely

filed a post-sentence motion, and following the denial of his motion, timely

filed a notice of appeal. The trial court ordered the filing of a statement of

errors complained of on appeal, and Counsel complied.

However, in this Court, in lieu of a brief in support of Appellant’s

appeal, counsel filed both an Anders brief and a petition to withdraw as

counsel. Accordingly, the following principles guide our review.

Direct appeal counsel seeking to withdraw under Anders

must file a petition averring that, after a conscientious

examination of the record, counsel finds the appeal to be wholly

frivolous. Counsel must also file an Anders brief setting forth

issues that might arguably support the appeal along with any

other issues necessary for the effective appellate presentation

thereof….

Anders counsel must also provide a copy of the Anders

petition and brief to the appellant, advising the appellant of the

right to retain new counsel, proceed pro se or raise any

additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical

requirements of Anders, this Court will deny the petition to

withdraw and remand the case with appropriate instructions

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(e.g., directing counsel either to comply with Anders or file an

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s

petition and brief satisfy Anders, we will then undertake our

own review of the appeal to determine if it is wholly frivolous. If

the appeal is frivolous, we will grant the withdrawal petition and

affirm the judgment of sentence. However, if there are non-

frivolous issues, we will deny the petition and remand for the

filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Further, our Supreme Court has specified the following

requirements for the Anders brief:

[I]n the Anders brief that accompanies court-appointed

counsel’s petition to withdraw, counsel 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.

Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above.1 Because Appellant filed a response

1

Counsel’s letter to Appellant incorrectly advised him that Appellant’s ability

to retain private counsel or proceed pro se was contingent upon this Court

allowing counsel to withdraw. By order dated February 8, 2017, this Court

advised Appellant that he could respond to counsel’s petition, either pro se

or through privately retained counsel, within thirty days. Appellant has filed

a response.

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to counsel’s Anders brief, we need only address the issues raised within the

brief and Appellant’s pro se response.

By filing a pro se response, as in this case, or hiring private

counsel, the appellant has essentially filed an advocate’s brief. It

is well-settled that when an advocate’s brief has been filed on

behalf of the appellant, our Court is limited to examining only

those issues raised and developed in the brief. We do not act

as, and are forbidden from acting as, appellant’s counsel.

Accordingly, our independent review is logically limited in the

situation presented herein. If we conduct an independent review

of the entire record, and conclude that there are no non-frivolous

issues to be found anywhere therein, we have rendered the

appellant’s right to proceed pro se or to hire private counsel,

meaningless. There would be no point in allowing a pro se or

counseled filing if we had already determined any issue raised

therein was frivolous.

Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015).

In his Anders brief, counsel avers that Appellant wishes to challenge

the weight and sufficiency of the evidence to sustain his convictions.

Anders Brief at 9.

In reviewing Appellant’s sufficiency claims, we are mindful of the

following.

[O]ur standard of review of sufficiency claims requires that we

evaluate the record in the light most favorable to the verdict

winner giving the prosecution the benefit of all reasonable

inferences to be drawn from the evidence. Evidence will be

deemed sufficient to support the verdict when it establishes each

material element of the crime charged and the commission

thereof by the accused, beyond a reasonable doubt.

Nevertheless, the Commonwealth need not establish guilt to a

mathematical certainty. Any doubt about the defendant’s guilt is

to be resolved by the fact finder unless the evidence is so weak

and inconclusive that, as a matter of law, no probability of fact

can be drawn from the combined circumstances.

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Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotations omitted). The Commonwealth may sustain

its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

To sustain a conviction for the crime of possession with intent to

deliver a controlled substance, the “Commonwealth must prove both the

possession of the controlled substance and the intent to deliver the

controlled substance. It is well settled that all the facts and circumstances

surrounding possession are relevant in making a determination of whether

contraband was possessed with intent to deliver.” Commonwealth v. Lee,

956 A.2d 1024, 1028 (Pa. Super. 2008).

Because Appellant was not found with heroin on his person, the

Commonwealth was required to establish that Appellant had constructive

possession of the controlled substance. Commonwealth v. Kirkland, 831

A.2d 607, 610 (Pa. Super. 2003).

Constructive possession is a legal fiction, a pragmatic construct

to deal with the realities of criminal law enforcement.

Constructive possession is an inference arising from a set of

facts that possession of the contraband was more likely than not.

We have defined constructive possession as “conscious

dominion.” We subsequently defined “conscious dominion” as

“the power to control the contraband and the intent to exercise

that control.” To aid application, we have held that constructive

possession may be established by the totality of the

circumstances.

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Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal

citations omitted).

In his pro se response to counsel’s Anders brief, Appellant contends:

(1) Urban had direct sales with the drug task force; (2) the drugs were

found in Urban’s residence; (3) no physical evidence linked Appellant to the

jacket where the drugs were found; and (4) Appellant did not have any

drugs on his person at any time. Appellant’s Pro Se Response, 4/11/2017,

at 1-2 (unnumbered).

The trial court responded to Appellant’s sufficiency challenge as

follows.

Giving the Commonwealth all reasonable inferences, the jury

could have found beyond a reasonable doubt that Appellant

possessed the heroin with intent to deliver it. Testimony

provided by Urban showed that Appellant wore a dark blue

jacket to her home. When shown the jacket where the heroin

was discovered, Urban testified that it was the one that

Appellant was wearing when he came to her home, that he had

taken it off, and that Weaver, the only other person in the home

at that time, would be too small for the jacket.

In addition to Urban’s testimony[,] Gotwals provided

testimony about the street value of the [heroin], how the

[heroin] was discovered in the jacket and about the wallet found

on the porch. Inside the wallet were items that Gotwals testified

to being typical when selling drugs. Detective Fenstermacher,

who was qualified as an expert during trial, gave further

testimony that in his opinion based on the amount, packaging

and other circumstances surrounding the discovered drugs that

the drugs were intended to be sold.

As such, there was enough evidence for the jury to find

Appellant guilty beyond a reasonable doubt for possession with

intent to deliver. Accordingly, the jury verdict should stand.

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Trial Court Opinion, 10/18/2016, at 17-18 (footnotes omitted).

Upon review, we agree with the trial court and find that there was

sufficient evidence presented to show Appellant constructively possessed the

heroin with the intent to deliver it. In finding as such, we remind Appellant

that “the evidence at trial need not preclude every possibility of innocence,

and the fact-finder is free to resolve any doubts regarding a defendant’s guilt

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.”

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006).

Next we address Appellant’s aggravated assault conviction. A person

may be convicted of aggravated assault of a police officer if he “attempts to

cause or intentionally or knowingly causes bodily injury to any of the officers

… in the performance of duty.” 18 Pa.C.S. § 2702(a)(3). The trial court

summarized the following evidence to support its finding that the evidence

presented was sufficient to sustain Appellant’s conviction for aggravated

assault under the above-mentioned subsection.

When viewed in the light most favorable to the Commonwealth

as the verdict winner, we find there was sufficient evidence to

convict Appellant of [a]ggravated [a]ssault. Giving the

Commonwealth all reasonable inferences as the verdict winner,

the jury could have found beyond a reasonable doubt that

Appellant intentionally or knowingly caused bodily injury to []

O’Shea, who is a member of law enforcement. The testimony

discussed earlier by [] O’Shea, [] Kile, and Holly Urban all show

that Appellant struck [] O’Shea, causing an injury on his head,

which required an unspecified number of staples, and [injury to

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his] finger. The conduct described by the previous witnesses

suggest that Appellant intentionally or knowingly caused the

injury to O’Shea. Therefore, there was enough evidence for the

jury to find Appellant guilty beyond a reasonable doubt.

Accordingly, the jury verdict should stand.

Trial Court Opinion, 10/18/2016, at 19-20 (footnotes omitted).

We agree. There was ample evidence introduced that Appellant struck

O’Shea, who was wearing a vest indicating that he was a police officer, and

that Appellant’s actions, when viewed in a light most favorable to the

Commonwealth, could allow a jury to reach the conclusion that Appellant

intentionally or knowingly caused bodily injury to O’Shea.

Likewise, we find the evidence sufficient to sustain Appellant’s

conviction for simple assault. “Pursuant to 18 Pa.C.S.A. § 2701, ‘[a] person

is guilty of [simple] assault if he: (1) attempts to cause or intentionally,

knowingly, or recklessly causes bodily injury to another.’ 18 Pa.C.S.[] §

2301 defines ‘bodily injury’ as ‘[i]mpairment of physical condition or

substantial pain.’” Commonwealth v. Klein, 795 A.2d 424, 428 (Pa.

Super. 2002). As indicated by the trial court, testimony from the officers

and Urban established that Appellant hit O’Shea on the side of the head.

This caused injury to his face and required staples. With this evidence, a

fact-finder could find that Appellant’s conduct amounted to simple assault

against the officer.

We now address Appellant’s final sufficiency claim regarding the

offense of escape. In his Anders brief, counsel bases his opinion of the

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frivolity of this issue upon the fact that Appellant was placed into “official

detention” when he was instructed to put his hands behind his back and that

“Appellant did not comply … and when [the officer] was attempting to put

the handcuffs on [Appellant, Appellant] swung his arms and struck the

officer in the right side of the face.” Anders Brief at 14. This evidence, he

avers, is enough to prove that Appellant violated the statute. Id.

An individual commits the offense of escape when “he unlawfully

removes himself from official detention or fails to return to official detention

following temporary leave granted for a specific purpose or limited period.”

18 Pa.C.S § 5121. As summarized by the trial court, the evidence presented

at trial with regard to the charge of escape was as follows:

The testimony that was discussed earlier in this opinion

demonstrated that Appellant attacked O’Shea while O’Shea had

attempted to handcuff him and that Appellant was not free to

leave. Appellant’s official detainment began once O’Shea

instructed him to put his hands behind his back, during and after

Kile and Appellant had an altercation. After [Officer] Kile and

Appellant had an altercation where both were on the ground,

Appellant stood up anyway when a reasonable person would not

have felt that they could do so. As such, there was enough

evidence for the jury to find Appellant guilty beyond a

reasonable doubt. Accordingly, the jury verdict should stand.

Trial Court Opinion, 10/18/2016, at 21-22.

Upon a review of the record, while case law suggests that Appellant

was in official detention for the purposes of proving the first element of

escape, see Commonwealth v. Stewart, 648 A.2d 797 (Pa. Super. 1994),

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it is not clear to us that Appellant’s conduct constituted “removing” himself

from said detention as contemplated by the statute.

By no means is this Court convinced that Appellant is entitled to relief

on this issue. However, the claim is not so clearly devoid of merit to warrant

classifying this appeal as frivolous. From our review, it appears that counsel

has the factual and legal bases to put forward a good-faith argument.

Lastly, while he avers in his pro se response to counsel’s brief that

“there are various claims of arguable merit pertaining to this case[,]” in

addition to Appellant’s arguments concerning his possession conviction,

Appellant only sets forth with specificity the following: (1) “All evidence falls

under ‘fruits of a poisonous tree’ due to violation of” Pa.R.Crim.P. 207 and

the “illegal arrest of the appellant,” and (2) various claims alleging appellate

counsel’s ineffectiveness. Appellant’s Pro Se Response, 4/11/2017.

With regard to the latter claim, because Appellant is currently on direct

appeal, his ineffectiveness claims cannot be addressed at this stage. Except

in rare circumstances not present here, ineffective-assistance-of-counsel

claims can be raised only on collateral review. See Commonwealth v.

Holmes, 79 A.3d 562, 576 (Pa. 2013) (“[C]laims of ineffective assistance of

counsel are to be deferred to PCRA review; trial courts should not entertain

claims of ineffectiveness upon post-verdict motions; and such claims should

not be reviewed upon direct appeal.”).

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With respect to his former argument, as stated supra, Appellant did

file a motion to suppress, averring his arrest was illegal and thus all

evidence seized as a result was inadmissible. It appears the trial court

never ruled on the merits of this motion, instead denying the motion as

untimely filed. See N.T., 8/5/2015 at 2 (“I’m going to deny the motion to

suppress at this point in time because it’s untimely. It’s untimely by about

21 months”). The record is devoid of any reference after this date that

Appellant challenged the court’s ruling to deny the motion as untimely, nor

does Appellant cite any support to prove that the suppression motion was

argued at a later date, and our cursory review of the record can find no such

documentation.2 Because the trial court never ruled on the merits of the

motion, and because he makes no argument that the trial court’s finding of

untimeliness was erroneous, we see no merit to the suppression claim.

In light of the foregoing, we agree with counsel that Appellant’s issues

challenging the sufficiency of the evidence to sustain his convictions for

possession with the intent to deliver a controlled substance, aggravated

assault, and simple assault are frivolous. Moreover, we find Appellant has

presented no issue within his pro se response which would convince us to

2

Prior to trial and during a period of time when Appellant was proceeding

pro se, he filed a motion in limine, requesting the suppression of evidence.

See Motion in Limine, 11/2/2015. Soon thereafter counsel entered his

appearance on behalf of Appellant. From our review of the record, it does

not appear that Appellant’s pro se motion was ever presented at a hearing

or ruled upon by the trial court.

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disturb his judgment of sentence. However, because we have identified a

potentially non-frivolous issue, we deny counsel’s motion for leave to

withdraw and remand the case for counsel to file an advocate’s brief. 3

Motion for leave to withdraw denied. Case remanded with

instructions. Panel jurisdiction retained.

3

At this time, in light of our disposition, we decline to address Appellant’s

issue concerning the weight of the evidence to sustain his convictions.

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