Com. v. Rosemond, E. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERNEST ALLEN ROSEMOND
Appellant No. 1847 MDA 2016
Appeal from the Judgment of Sentence October 24, 2016
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001175-2016
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 09, 2017
Ernest Allen Rosemond appeals from the October 24, 2016 judgment
of sentence entered in the Schuylkill County Court of Common Pleas
following his jury trial convictions for possession of contraband by an inmate
(controlled substance) and possession of a controlled substance.1
Rosemond’s counsel has filed an Anders2 brief and an application to
withdraw as counsel. We affirm the judgment of sentence and grant
counsel’s application to withdraw.
The trial court set forth the following factual history:
[Rosemond] was brought to [the] Schuylkill County Prison
as an arrestee by Pottsville Police [at] about 6:30 p.m. on
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1 18 Pa.C.S. § 5123(a.2) and 35 P.S. § 780-113(a)(16), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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May 13, 2016. Upon arrival at the prison, [Rosemond]
was asked a number of questions by Schuylkill County
Prison Second Shift Lieutenant Juan Escalante during initial
processing, including whether he had any drugs on or in
his person. Escalante warned [Rosemond] that if he had
drugs and did not reveal the possession at that time, he
would be subject to a state prison sentence if he was later
found to possess such substances after having been
processed and becoming an inmate.
After [Rosemond] told Escalante that he had no drugs
and finished being processed, he was taken into custody
by the prison. [Rosemond] was assigned a cell and taken
to a clean room by Corrections Officers Ryan Fritzinger and
Cody Symons to be searched and to change into prison
garb. The small room where he was taken was about the
size of a closet, well-lit[,] and completely empty with the
exception of a height chart on the wall. There,
[Rosemond] was directed to and did remove one article of
clothing at a time and handed each to an officer to be
searched. While [Rosemond] was bent over in the process
of removing his socks, a small package fell from what
Fritzinger believed was either [Rosemond]’s sock or waist[-
]band. Fritzinger had no doubt that the package had come
from [Rosemond].
Symons was present with Fritzinger at the doorway of
the small room while [Rosemond] was removing his
clothing. Symons saw a small bag containing a powdery
substance fall from [Rosemond]’s waist[-]band or socks as
[Rosemond] was removing his socks. After the bag fell to
the floor, [Rosemond] was ordered to step back, the item
was secured[,] and Escalante was notified by radio.
[Rosemond] told the officers that he did not know what the
package was, where it came from[,] and that it was not
his. The package was recovered by Escalante who later
transferred it to Officer Samson Wega of the Pottsville
Bureau of Police.
The package was subsequently taken by Pottsville Police
Detective Kirk Becker to the Pennsylvania State Police
crime laboratory where it was analyzed by forensic
scientist Kristy Bruno. Bruno found the contents of the
package consisted of approximately .19 grams of
methamphetamine.
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Opinion and Order of Court Pursuant to Pa.R.A.P. 1925, 12/9/16, at 2-3.
On October 17, 2016, a jury convicted Rosemond of the
aforementioned offenses. On October 24, 2016, the trial court sentenced
Rosemond to 2 to 5 years’ incarceration, followed by 2 years’ probation on
the conviction for possession of contraband by an inmate (controlled
substance); the conviction for possession of a controlled substance merged
with the other conviction. On November 10, 2016, Rosemond timely filed a
notice of appeal. On February 16, 2017, Rosemond’s counsel filed an
application to withdraw as counsel and an Anders brief.
Because counsel has filed a petition to withdraw pursuant to Anders
and its Pennsylvania counterpart, Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), we must address counsel’s petition before reviewing the
merits of Rosemond’s underlying claim. Commonwealth v. Goodwin, 928
A.2d 287, 290 (Pa.Super. 2007). We first address whether counsel’s petition
to withdraw satisfies the procedural requirements of Anders. To be
permitted to withdraw, 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).
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Here, counsel stated she has reviewed the record and “determined
there are no grounds for appeal.” Counsel’s Ltr. to Rosemond, 2/16/17
(“February Letter”). Counsel furnished a copy of the Anders brief to
Rosemond. See id.
Counsel’s February 16, 2017 letter3 to Rosemond, however, advised
him that “[s]hould [this] Court grant [her] [p]etition to [w]ithdraw as
[c]ounsel,” Rosemond had the right to proceed pro se or with private
counsel. Counsel’s statement of the law is incorrect, as appellants faced
with a petition to withdraw have an “absolute right to proceed pro se or with
privately retained counsel” that is not dependent on the trial court’s ruling
on the petition to withdraw. Commonwealth v. Bynum-Hamilton, 135
A.3d 179, 184 (Pa.Super. 2016). However, on March 13, 2017, this Court
issued an order permitting Rosemond “to file a response to counsel’s petition
to withdraw and Anders brief, either pro se or via privately retained
counsel, within thirty (30) days of the date of [the] Order[.]” See Order,
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3Initially, counsel did not aver in her application to withdraw that she
had sent a letter to Rosemond advising him of his right to proceed pro se or
with privately-retained counsel, nor did she attach a copy of any such letter
to her application to withdraw filed with this Court. On February 23, 2017,
this Court issued an order directing counsel to “notify [Rosemond] with a
proper statement advising [him] as required by [Commonwealth v.]
Millisock,” 873 A.2d 748 (Pa.Super. 2005), of his right to proceed pro se or
with a private attorney. See Order, 2/23/16. On March 3, 2017, counsel
advised this Court that on February 16, 2017, she had sent such a letter to
Rosemond along with copies of the application to withdraw and Anders
brief, and sent this Court a copy of that letter.
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3/13/17. Because this Court ensured that Rosemond understood his rights
and was given an opportunity to raise any other issues before this Court, we
conclude that the third procedural requirement has been met and,
accordingly, counsel has substantially complied with the procedural
requirements of Anders.
We next address whether counsel’s Anders brief meets the
requirements established by the Pennsylvania Supreme Court in Santiago.
The 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.
Counsel’s brief provided a summary of the procedural history and the
facts with appropriate citations to the record. Anders Br. at 8-10.
Counsel’s brief states that she reviewed the record and determined that any
appeal would be frivolous, and set forth her reasons for that conclusion. Id.
at 11-12. Accordingly, counsel has substantially complied with the
requirements of Anders and Santiago.
Rosemond has not filed a pro se brief or a counseled brief with new,
privately-retained counsel, but he did file a pro se response to counsel’s
petition to withdraw. In that response, Rosemond raised the same claim
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raised in the Anders brief and argues that counsel should not be allowed to
withdraw from representation. Accordingly, we review the lone issue raised
in the Anders brief and in Rosemond’s pro se response: “Whether the
testimony and reports of corrections officers and police are so conflicting and
different as to render [the] same insufficient to support the jury’s guilty
verdict?” Anders Br. at 7.
Rosemond purports to raise a challenge to the sufficiency of the
evidence. However, inconsistencies and conflicts in testimony go to the
weight, not the sufficiency, of the evidence. See Commonwealth v.
Trinidad, 96 A.3d 1031, 1038 (Pa.Super. 2014).
To the extent that Rosemond argues that the verdict was against the
weight of the evidence, we conclude that Rosemond has waived this claim.
Pennsylvania Rule of Criminal Procedure 607(A) sets forth the requirements
for preserving a weight of the evidence challenge:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A). Here, the record shows that Rosemond did not file a
written motion, before or after sentencing, challenging the weight of the
evidence.
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To the extent that Rosemond challenges the sufficiency of the
Commonwealth’s evidence, we conclude that this claim is meritless. Our
standard of review for a sufficiency of the evidence claim is as follows:
We must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth’s burden may be met by
wholly circumstantial evidence and 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.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
Section 780-113(a)(16) of the Controlled Substance, Drug, Device,
and Cosmetic Act (“Act”) prohibits
[k]nowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this
act, or a practitioner not registered or licensed by the
appropriate State board, unless the substance was
obtained directly from, or pursuant to, a valid prescription
order or order of a practitioner, or except as otherwise
authorized by this act.
35 P.S. § 780-113(a)(16).
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An inmate may be convicted of possessing contraband, specifically a
controlled substance, “if he unlawfully has in his possession or under his
control any controlled substance in violation of section 13(a)(16) of [the
Act].” 18 Pa.C.S. § 5123(a.2).
Rosemond argues that conflicts and inconsistencies in the corrections
officers’ testimony render the evidence insufficient. We disagree. It is well
settled that “[a] mere conflict in the testimony does not render the evidence
insufficient because it is within the province of the fact[-]finder to determine
the weight to be given to the testimony and to believe all, part, or none of
the evidence.” Commonwealth v. Halye, 719 A.2d 763, 764 (Pa.Super.
1998) (internal citation omitted).
Further, viewing the evidence in the light most favorable to the
Commonwealth, it is clear that the evidence was sufficient to convict
Rosemond. Rosemond was booked into jail on an offense in a different
criminal case. During processing, the corrections officers took Rosemond to
a room and asked him to remove his clothing. When Rosemond removed his
clothing, a small bag containing a powdery substance dropped onto the
floor. The corrections officers testified that there was nothing on the floor of
the room in which they placed Rosemond before entering. Subsequent
testing of the powdery substance confirmed that it was methamphetamine, a
controlled substance under the Act that Rosemond was not permitted to
possess. Accordingly, Rosemond’s claim is without merit.
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Judgment of sentence affirmed. Application to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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