J-S01019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH A. TUMOLO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 774 MDA 2021

Appeal from the Judgment of Sentence Entered June 1, 2021

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

No(s): CP-54-CR-0000750-2018

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 29, 2022

Appellant Joseph A. Tumolo appeals from the judgment of sentence 

entered after a jury found him guilty of contraband and possession of a 

controlled substance.1 Additionally, Appellant’s counsel (Counsel) filed a 

petition to withdraw and an Anders/Santiago brief.2 After review, we grant 

Counsel’s petition to withdraw and affirm.

The trial court summarized the relevant facts of this case as follows:

On Friday, November 25, 2016, Appellant was taken to Schuylkill 

County Prison in the city of Pottsville after being arrested on a 

bench warrant by the Pennsylvania State Police. Appellant had 

been incarcerated in Northumberland County for [failure to 

appear] in another matter brought in Schuylkill County. The 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 5123(a) and 35 P.S. § 780-113(a)(16), respectively.

2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009).
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Trooper then transported Appellant to Schuylkill County where the

admission process began . . . .

During the strip search admission process conducted by 

supervising Correctional Officers[] Trevor Pavalko and Darren 

Borger, they found a $20 bill on the floor and Appellant [said] “this 

is for you.” Corrections Officer Pavalko, hereinafter referred to as 

“Pavalko” placed [the twenty dollar bill] in the “property room

where we do our strip searches[.]” [Officer Pavalko continued:]

[T]here is a table where we sit and fill out our paperwork[.] 

I put it down I had Officer Borger with me[.] I said look at 

this[.] [The bill] was folded in squares and then we opened 

it up there were eight [oxycodone] pills that were contained 

within the bill[.] [A]t that point in time, C.O. Borger then 

radioed for the shift supervisor C.O. Thomas Fort hereinafter 

referred to as “Fort” to appear in the property room so that 

this could be properly documented. 

Pavalko interpreted Appellant’s remarks as a “bribe.” It should be 

noted that the jury found Appellant not guilty of [bribery]. Next, 

C.O. Borger confirmed C.O. Pavalko’s testimony. Then, C.O.

Thomas Fort also confirmed the admission process, and that 

Appellant was advised that he should not [take] any contraband . 

. . into the prison, and if he did have any contraband[,] he should 

turn it in before the contraband was taken into the prison. 

Trial Ct. Op., 9/8/21, at 3-4 (citations omitted).

As stated, Appellant was found guilty of the charges of contraband and 

possession of a controlled substance. Appellant failed to appear for sentencing 

on September 10, 2020, and the trial court issued a bench warrant. After 

Appellant was returned to custody, the trial court sentenced Appellant to a 

term of twenty-four months to forty-eight months of incarceration to be 

served concurrently with sentences imposed in Schuylkill and Northumberland 

Counties. N.T., Sentencing Hr’g, 6/1/21 at 9. No post-sentence motions were 
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filed, and Appellant filed a timely appeal. Both the trial court and Appellant 

complied with Pa.R.A.P. 1925.

In the Anders/Santiago brief, Counsel identifies the following issue:

Whether the case against [Appellant] should be thrown out due to 

Officer Fort’s failure to testify truthfully and because at the time 

of trial Officer Fort was no longer employed at Schuylkill County 

Prison? 

Anders/Santiago Brief at 7 (some formatting altered). 

“When faced with a purported Anders brief, this Court may not review 

the merits of any possible underlying issues without first examining counsel’s 

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. 

Super. 2008) (citation omitted). Counsel must comply with the technical 

requirements for petitioning to withdraw by (1) filing a petition for leave to 

withdraw stating that after making a conscientious examination of the record, 

counsel has determined that the appeal would be frivolous; (2) providing a 

copy of the brief to the appellant; and (3) advising the appellant that he has 

the right to retain private counsel, proceed pro se, or raise additional 

arguments that the appellant considers worthy of the court’s attention. See 

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en 

banc).

Additionally, counsel must file a brief that meets the requirements 

established by the Pennsylvania Supreme Court in Santiago, namely:

(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 
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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 above 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.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an 

independent review of the record to discern if there are any additional, nonfrivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113 

A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord 

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en 

banc).

Here, Counsel has substantially complied with the procedural 

requirements discussed above. Counsel filed a petition to withdraw indicating 

that she reviewed the record and determined that an appeal is frivolous and 

without merit. Counsel also forwarded to this Court a copy of the letter she 

sent to Appellant advising him that she has petitioned to withdraw and 

Appellant has a right to immediately proceed pro se or retain private counsel.3

In addition, Counsel’s brief complies with the obligations under Anders and 

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3 We are constrained to note that we twice remanded this matter for Counsel 

to comply with the requirements of Anders and Santiago. See Orders filed 

1/24/22 and 2/1/22. 
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Santiago.

4 Therefore, we will now conduct our own review to determine 

whether Appellant’s appeal is wholly frivolous.

In the issue Counsel identified in the Anders/Santiago brief, she 

asserts that Appellant wants the charges against him dismissed because a 

Commonwealth witness, Officer Fort, committed perjury in his testimony. 

Anders/Santiago Brief at 11-12. As explained below, this challenge assails 

the credibility of Officer Fort’s testimony, and is therefore, a challenge to the 

weight of the evidence. 

At the outset, we note that “it is not the province of this Court to declare 

whether [a witness] committed perjury. Rather, such charges are brought by 

the Commonwealth in a separate prosecution.” Commonwealth v. 

Johonoson, 844 A.2d 556, 566 (Pa. Super. 2004), disapproved of on other 

grounds by Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017). 

Such a claim is “best viewed as one challenging the weight of the evidence.”

Id. (citation omitted). Appellate review of the sufficiency of the evidence does 

not include an assessment of the credibility of testimony. Commonwealth 

v. Smyser, 195 A.3d 912, 916 (Pa. Super. 2018). Rather, credibility 

determinations are made by the finder of fact, and challenges to credibility go 

to the weight, not the sufficiency of the evidence. Id.; see also 

Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (explaining 

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4 Appellant did not file a response to Counsel’s petition to withdraw.
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that challenges to the credibility of a witness’s testimony go to the weight of 

the evidence and not its sufficiency).5

However, upon our review of the record, we are constrained to conclude 

that Appellant did not preserve a challenge to the weight of the evidence as 

required pursuant to Pa.R.Crim.P. 607(A). See Commonwealth v. Griffin, 

65 A.3d 932, 938 (Pa. Super. 2013) (finding a weight of the evidence claim 

waived where the appellant failed to comply with Pa.R.Crim.P. 607; the 

appellant did not raise the issue orally or in writing prior to sentencing, and 

he did not raise it in a post-sentence motion). Accordingly, Appellant’s issue 

is both waived and frivolous. See Commonwealth v. McCall, 911 A.2d 992, 

997 (Pa. Super. 2006) (explaining that “[t]he purpose of [Rule 607(A)] is to 

make it clear that a challenge to the weight of the evidence must be raised 

with the trial judge or it will be waived” (citation omitted)); see also 

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding 

that when an issue has been waived, “pursuing th[e] matter on direct appeal 

is frivolous”).

Because we conclude that Appellant has waived his sole issue on appeal, 

we agree with Counsel that Appellant’s appeal is frivolous. See Kalichak, 

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5 The trial court addressed this issue as a challenge to evidentiary sufficiency 

and tantamount to a motion for arrest of judgment. Trial Ct. Op., 9/8/21, at 

4. However, as discussed herein, Appellant’s identified claim of error goes to 

the credibility of a witness, and as such, it presents a challenge to the weight 

of the evidence. See Melvin, 103 A.3d at 43. Nevertheless, this Court is not 

bound by the trial court’s reasoning, and we may affirm the trial court’s 

decision on any correct basis. Commonwealth v. Wilcox, 174 A.3d 670, 

674 n.4 (Pa. Super. 2017).
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943 A.2d at 291; McCall, 911 A.2d at 997. Furthermore, our independent 

review of the record does not reveal any additional, non-frivolous issues. See 

Goodwin, 928 A.2d at 291; Flowers, 113 A.3d at 1250. Accordingly, we 

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

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2022