Com. v. Farley, D.

J-S18033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DEQUAN DELIGHT FARLEY :

:

Appellant : No. 1921 MDA 2018

Appeal from the Judgment of Sentence Entered October 24, 2018

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-CR-0001037-2018

BEFORE: BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 28, 2019

Appellant Dequan Delight Farley appeals the judgment of sentence

entered by the Court of Common Pleas of Berks County after Appellant was

convicted of two counts of possession of a controlled substance with intent to

deliver (PWID), two counts of simple possession of a controlled substance,

and possession of drug paraphernalia. Appellant’s counsel filed a petition to

withdraw his representation, as well as a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967) (hereinafter “Anders brief”).

We grant Counsel’s petition to withdraw and affirm the judgment of sentence.

On February 5, 2018, Adult Probation Officer (APO) Brian Harting and

his partner, APO Carlo DeAngelo conducted an unscheduled visit of Appellant’s

home located at 1009 Birch Street in Reading, Pennsylvania, while Appellant

was on probation and parole. Once APO Harting knocked on the door,

Appellant answered approximately two to three minutes later.

____________________________________

* Former Justice specially assigned to the Superior Court.

J-S18033-19

The officers entered the living room of the residence, where they

encountered Appellant, Appellant’s son, and another adult male. When talking

with Appellant, the officers heard a noise coming from the kitchen and asked

Appellant if there was any other individuals in the home. Although Appellant

claimed there was no one else in his home, the officers entered the kitchen

where they encountered two males, who APO Harting knew to be gang

members. Notes of Testimony (N.T.), 6/5/18, at 8-9.

Thereafter, the officers told Appellant that they were going to conduct a

brief walk-through of the home for their safety due to Appellant’s deception

concerning whether anyone else was in the home. APO Harting entered the

basement, where he observed a small scale and smelled marijuana. APO

Deangelo noticed, at the top of the basement stairs, a black Sneaker Villa bag

containing a large bag of marijuana.

Based on these observations, APO Harting contacted his supervisor and

obtained permission to search Appellant’s bedroom and the common areas of

the residence. In the kitchen, the officers found a mason jar filled with baggies

of marijuana, packaging material, a scale, and two handguns. In the

basement, the officers recovered a black trash bag filled with four vacuum-

sealed bags of marijuana as well as a cooler, which held several more vacuum-

sealed bags of marijuana and a vacuum-sealed bag of cocaine.

APO Harting and APO Deangelo contacted the Reading Police to report

the discovery of the drugs. Officer Andrew Seiler of the Reading Police

Department applied for, received, and executed a search warrant of

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Appellant’s home. In addition to the drugs previously discovered in the home,

the officers also found $4,650 in U.S. currency in a bedroom near items

belonging to Appellant. The Pennsylvania State Police Crime Lab confirmed

that the officers recovered 53.40 grams of cocaine and 6.432 pounds of

marijuana from Appellant’s home. Subsequent testing revealed that ten

fingerprints on the bags of drugs belonged to Appellant.

Appellant was arrested and charged with PWID (cocaine), PWID

(marijuana), simple possession (cocaine), simple possession (marijuana), and

possession of drug paraphernalia. On April 18, 2018, Appellant filed an

omnibus pretrial motion, claiming inter alia, that the warrantless search of his

home was unlawful as the residence at 1009 Birch Street was not his approved

residence for the purpose of probation and parole. On June 5, 2018, the trial

court held a hearing and subsequently denied the motion.

On October 24, 2018, the trial court conducted a bench trial and

convicted Appellant of the aforementioned charges. On the same day, the

trial court sentenced Appellant to four to eight years’ incarceration for PWID

(cocaine), one to two years’ incarceration for PWID (marijuana), and one year

of probation for the paraphernalia conviction. As all sentences were set to run

consecutively, Appellant received an aggregate sentence of five to ten years’

incarceration followed by one year of probation.

After sentencing, the trial court entered an order allowing Appellant’s

trial counsel to withdraw. On November 2, 2018, Appellant filed a pro se post-

sentence motion in which he sought, inter alia, the modification of his

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sentence. On November 13, 2018, the trial court denied Appellant’s post-

sentence motion without a hearing.

On November 19, 2018, Appellant’s appellate counsel from the Berks

County Public Defender’s Office (hereinafter “Counsel”), entered his

appearance and filed a notice of appeal. Thereafter, Counsel filed a petition

to withdraw along with an Anders brief. Appellant filed a pro se request for

additional time to file a response, after which this Court granted a limited

extension. Nevertheless, Appellant never filed a pro se response.

As an initial matter, we must determine whether this appeal is properly

before this Court. Our rules of criminal procedure provide that a “written post-

sentence motion shall be filed no later than 10 days after the imposition of

sentence.” Pa.R.Crim.P. 720(A)(1). If the defendant files a timely post-

sentence motion, the notice of appeal shall be filed “within 30 days of the

entry of the order deciding the motion.” Pa.R.Crim.P. 720(A)(2)(a).

In this case, Appellant filed a pro se post-sentence motion in an attempt

to preserve his post-sentence rights within applicable the ten-day time limit.

Generally, the pro se filing of a post-sentence motion by a defendant

represented by counsel is considered to be a nullity having no legal effect.

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007) (citing

Commonwealth v. Piscanio, 530 Pa. 293, 608 A.2d 1027, 1029 n.3 (1992)).

However, this Court has recognized an exception to the rule against hybrid

representation. Where a defendant is effectively abandoned by counsel and

the trial court fails to appoint new counsel in a timely manner, a defendant's

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filing of pro se post-sentence motion while still represented by counsel “does

not offend considerations of hybrid representation.” Commonwealth v.

Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015) (declining to quash appeal as

trial court’s failure to appoint the appellant counsel in time to preserve his

post-sentence rights constituted a breakdown in court processes).

In this case, Appellant was unrepresented in the ten-day period after

sentencing as trial counsel withdrew at sentencing and appellate counsel did

not enter his appearance in time to preserve Appellant’s post-sentence rights.

Thus, as we find Appellant’s pro se motion tolled the time to which he needed

to file an appeal, this appeal was timely filed.

In the Anders brief, Counsel raises the following issues for our review:

1) Whether the trial court erred in denying Appellant’s

suppression motion where the initial search was conducted

without a warrant and 1009 Birch Street was not Appellant’s

approved address?

2) Whether the evidence admitted at trial was insufficient to

support the guilty verdicts for Possession with Intent to Deliver

– Cocaine and Possession with Intent to Deliver – Marijuana?

3) Whether the trial court erred and abused its discretion when

sentencing Appellant to consecutive standard range sentences

that were inconsistent with the gravity of the offense,

protection of the public, and Appellant’s rehabilitative needs

based in part upon an alleged lack of remorse?

Anders brief, at 6.

We must evaluate Counsel’s request to withdraw before reaching the

merits of the case. Commonwealth v. Washington, 63 A.3d 797, 800

(Pa.Super. 2013); see also Commonwealth v. Rojas, 874 A.2d 638, 639

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(Pa.Super. 2005) (stating, “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[]”) (citation omitted).

There are procedural and briefing requirements imposed upon an

attorney who seeks to withdraw on appeal pursuant to which counsel must:

1) petition the court for leave to withdraw stating that, after

making a conscientious examination of the record, counsel has

determined that the appeal would be frivolous; 2) furnish a copy

of the brief to the defendant; and 3) advise the defendant that he

or she has the right to retain private counsel or raise additional

arguments that the defendant deems worthy of the court's

attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). We further review Counsel’s Anders brief for

compliance with the requirements set forth in Commonwealth v. Santiago,

602 Pa. 159, 978 A.2d 349 (2009):

[W]e hold that in 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.

Id. at 178-79, 978 A.2d at 361. Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290

(Pa.Super. 2007).

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In the Anders brief and petition to withdraw, Counsel provides a

summary of the facts and procedural history of the case, refers to evidence of

record that might arguably support the issues raised on appeal, and provides

citations to relevant case law. Counsel avers that he made a “thorough review

of the record in this matter” and asserted that he could “find no non-frivolous

argument that would support Appellant’s claim.” Anders brief, at 38. Counsel

also filed a copy of his letter in which he advised Appellant of his right to

proceed pro se or with the assistance of privately retained counsel.

Accordingly, Counsel has substantially complied with all of the technical

requirements of Anders and Santiago. Therefore, we proceed to examine

the issues Counsel identified in the Anders brief and then conduct “a full

examination of all the proceedings, to decide whether the case is wholly

frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.

2018) (en banc) (quotation omitted).

Counsel first raises Appellant’s claim that the trial court erred in denying

his suppression motion. We are guided by the following standard:

Our standard of review in addressing a challenge to a trial

court's denial of a suppression motion is whether the factual

findings are supported by the record and whether the legal

conclusions drawn from those facts are correct. When reviewing

the ruling of a suppression court, we must consider only the

evidence of the prosecution and so much of the evidence of the

defense as remains uncontradicted when read in the context of

the record.... Where the record supports the findings of the

suppression court, we are bound by those facts and may reverse

only if the legal conclusions drawn therefrom are in error.

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Commonwealth v. Eichinger, 591 Pa. 1, 22, 915 A.2d 1122, 1134 (2007)

(citations omitted).

Appellant specifically asserts that the initial warrantless search was

illegal as he alleges that the home located at 1009 Birch Street in Reading was

not his approved residence for the purpose of his probation and parole.

Appellant acknowledged that the 1009 Birch Street residence was his mother’s

home, but asserted that he lived with his father on Schuylkill Avenue.

However, the trial court found it was “overwhelmingly clear from the

record in this case that the premises searched were in fact [Appellant’s] official

approved residence.” Trial Court Opinion, 7/23/18, at 2. The Commonwealth

presented evidence that 1009 Birch Street was Appellant’s registered address

at the time of the search and had been his registered address since at least

May 2017. Upon his arrest on February 5, 2018, Appellant told police that he

currently lived at the 1009 Birch Street residence with his mother. N.T.,

6/5/18, at 43. As such, we conclude this claim is meritless.

Second, Counsel raises Appellant’s claim that the evidence was

insufficient to support his two convictions for PWID (marijuana and cocaine).

Our standard of review is as follows:

As a general matter, our 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

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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.

The Commonwealth may sustain its burden by means of wholly

circumstantial evidence. Accordingly, [t]he fact that the evidence

establishing a defendant's participation in a crime is circumstantial

does not preclude a conviction where the evidence coupled with

the reasonable inferences drawn therefrom overcomes the

presumption of innocence. Significantly, we may not substitute

our judgment for that of the fact finder; thus, so long as the

evidence adduced, accepted in the light most favorable to the

Commonwealth, demonstrates the respective elements of a

defendant's crimes beyond a reasonable doubt, the appellant's

convictions will be upheld.

Commonwealth v. Windslowe, 158 A.3d 698, 708–709 (Pa.Super. 2017),

appeal denied, 643 Pa. 85, 171 A.3d 1286 (2017) (quoting Commonwealth

v. Tukhi, 149 A.3d 881, 886–87 (Pa.Super. 2016)).

In reviewing a sufficiency challenge to evidence supporting a PWID

conviction, we recognize the following principles:

In order to prove the offense of possession with intent to deliver

a controlled substance, the Commonwealth must prove beyond a

reasonable doubt both that the defendant possessed the

controlled substance and had the intent to deliver. When

determining whether a defendant had the requisite intent to

deliver, relevant factors for consideration are the manner in which

the controlled substance was packaged, the behavior of the

defendant, the presence of drug paraphernalia, and large sums of

cash. Expert opinion testimony is also admissible concerning

whether the facts surrounding the possession of controlled

substances are consistent with an intent to deliver rather than

with an intent to possess it for personal use. The expert testimony

of a witness qualified in the field of drug distribution, coupled with

the presence of drug paraphernalia, is sufficient to establish intent

to deliver.

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Commonwealth v. Carpenter, 955 A.2d 411, 414 (Pa.Super. 2008)

(citations and quotation marks omitted).

Reviewing the record in the light most favorable to the Commonwealth,

we find there is sufficient evidence to support Appellant’s PWID convictions.

It is clear that Appellant possessed both the marijuana and cocaine recovered

from his home as his fingerprints were discovered on the packaging material

and the vacuum-sealed bags containing the drugs. In addition, the

Commonwealth offered expert testimony to show Appellant had intent to

deliver the controlled substances based on his possession of a large amount

of each drug, packaging material, a scale, a large amount of U.S. currency

and two firearms as well as the lack of paraphernalia for drug consumption.

As the Commonwealth presented overwhelming evidence that Appellant

possessed the cocaine and marijuana with the intent to deliver, we find the

sufficiency claim to be meritless.

Lastly, Counsel raised Appellant’s argument that the trial court

improperly considered Appellant’s silence at sentencing to be evidence of his

lack of remorse. This claim is a challenge to the discretionary aspects of

Appellant’s sentence.

It is well-established that “[a] challenge to the discretionary aspects of

sentencing does not entitle an appellant to review as of right.”

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016).

In order to invoke this Court’s jurisdiction to address such a challenge, the

appellant must satisfy the following four-part test: the appellant must (1) file

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a timely notice of appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the

issues at sentencing or in a timely post-sentence motion pursuant to

Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief does not have a fatal

defect as set forth in Pa.R.A.P. 2119(f); and (4) set forth a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code under 42 Pa.C.S.A. § 9781(b). Id. Appellant filed a timely

notice of appeal and preserved his sentencing claim in a timely post-sentence

motion. Counsel submitted a Rule 2119(f) statement in his Anders brief.

We must now determine whether Appellant has raised a substantial

question for our review. This Court has provided as follows:

The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis. A substantial question

exists only when the appellant advances a colorable argument

that the sentencing judge's actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.

Commonwealth v. Ali, 197 A.3d 742, 760 (Pa.Super. 2018) (citations

omitted). Appellant’s claim that the trial court considered an improper factor

in fashioning his sentence raises a substantial question for our review.

Commonwealth v. Downing, 990 A.2d 788, 792 (Pa.Super. 2010)

(concluding that the appellant's claim that the trial court relied on an improper

factor raised a substantial question permitting review).

In reviewing a challenge to the discretionary aspects of sentence, we

emphasize that:

Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal

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absent a manifest abuse of discretion. In this context, an abuse

of discretion is not shown merely by an error in judgment. Rather,

the appellant must establish, by reference to the record, that the

sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).

When a defendant is given a standard range sentence, we review the

sentence to determine if the trial court’s application of the guidelines would

be “clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). In reviewing a

sentence, an appellate court shall have regard for: (1) the nature and

circumstances of the offense and the history and characteristics of the

defendant; (2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation; (3) the findings upon

which the sentence was based; and (4) the guidelines promulgated by the

commission. 42 Pa.C.S.A. § 9781(d)(1)–(4).

Moreover, our Legislature has set forth general sentencing standards

that require the sentencing court to impose a sentence that is consistent with

protection of the public, the gravity of the offense in relation to the impact on

the victim and the community, and the rehabilitative needs of the defendant.

Commonwealth v. Walls, 592 Pa. 557, 569, 926 A.2d 957, 964 (2007)

(citing 42 Pa.C.S.A. § 9721(b)).

Appellant’s sentencing challenge appears to be based on his assertion

that the trial court improperly determined that his choice not to speak at his

sentencing hearing was evidence of his lack of remorse. This Court has

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emphasized that “it is undoubtedly appropriate for a trial court to consider a

defendant's lack of remorse as a factor at sentencing, provided that it is

specifically considered in relation to protection of the public, the gravity of the

offense, and the defendant's rehabilitative needs.” Commonwealth v.

Bowen, 975 A.2d 1120, 1125 (Pa.Super. 2009).

In this case, the trial court indicated that it considered the sentencing

guidelines, the parties’ recommendations, and Appellant’s pre-sentence

investigation report. In explaining its rationale for imposing its sentence, the

trial court found Appellant exhibited a lack of remorse when considering his

extensive prior record and the fact that he was already on supervision at the

time he was charged with the instant offenses:

The thing that’s troubling about the defendant’s record, while I

have seen worse insofar as the magnitude of the offense is

concerned, there appears to be but a single year since the year

2011 when the defendant did not commit at least one crime. And

that I believe was 2013. The conduct here is extremely severe

and departs with some significance to the severity of the offenses

with which the defendant previously engaged; but unfortunately,

he seems to have learned nothing because of all that supervision

and all those contacts with the system and one of the things that’s

particularly disturbing is the defendant has exhibited no kind of

remorse here except for his expression at previous proceedings

that it appears that he believes he was unfairly caught.

Notes of Testimony, 10/24/18, at 11. Despite Appellant’s assertion that the

trial court penalized him for not exercising his right to allocution at sentencing,

the trial court made no mention of Appellant’s silence at sentencing in

explaining its rationale.

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Moreover, the trial court did not abuse its discretion in imposing

standard range sentences in this case.1 “Where the sentencing court had the

benefit of a presentence investigation report (“PSI”), we can assume the

sentencing court was aware of relevant information regarding the defendant's

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010)

(citations omitted). Further, this Court has emphasized “where a sentence is

within the standard range of the guidelines, Pennsylvania law views the

sentence as appropriate under the Sentencing Code.” Id. Based on our

review of the record, we cannot conclude that the trial court’s sentence was

“clearly unreasonable” and find this issue merits no relief. Accordingly, the

sentencing claims presented in the Anders brief are wholly frivolous.

In light of the foregoing, and after conducting a full examination of all

the proceedings, we discern no non-frivolous issues to be raised on appeal.

Yorgey, supra, 188 A.3d at 1195. Therefore, we grant Counsel's petition to

withdraw and affirm the judgment of sentence.

Petition to withdraw as counsel granted. Judgment of sentence affirmed.

____________________________________________

1 As Appellant’s prior record score (PRS) was 3 and his offense gravity scores

(OGS) for PWID (cocaine) and PWID (marijuana) were 10 and 5, respectively,

the trial court determined that the standard ranges for these convictions were

42-54 months and 6-16 months. As the trial court sentenced Appellant to

four to eight years’ incarceration for PWID (cocaine) and one to two years’

incarceration for PWID (marijuana), both of these sentences fell within the

standard range of the guidelines.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/28/2019

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