J-S89015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TERRANCE KELLY,

Appellant No. 1375 EDA 2015

Appeal from the Judgment of Sentence April 24, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013001-2011

BEFORE: SHOGAN, MOULTON, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 05, 2016

Appellant, Terrance Kelly, appeals from the judgment of sentence 

entered on April 24, 2015, in the Philadelphia County Court of Common 

Pleas. Additionally, appellate counsel has filed a petition seeking to 

withdraw his representation and a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), which govern withdrawal from representation on direct appeal. After 

careful review, we grant counsel’s petition to withdraw and affirm Appellant’s 

judgment of sentence. 

The record reveals that on August 9, 2011, at approximately 9:00 

p.m., Officer Mark Robinson was conducting surveillance on the 1000 block 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
J-S89015-16

- 2 -

of Ruscomb Street in Philadelphia and investigating illegal drug sales. N.T., 

2/18/15, at 42. Officer Robinson testified that he witnessed Appellant, who 

was standing in front of a Chinese take-out store, engage in a brief 

conversation with a woman who approached him. Id. at 46. The officer saw 

the woman hand Appellant U.S. currency in exchange for a small object that 

Appellant retrieved from the waistband of his trousers. Id. Backup officers 

arrived, but they were unable to locate the woman after she completed her 

transaction with Appellant. Id. at 49. While Officer Robinson continued his 

surveillance of Appellant, he testified that he saw an individual in a blue 

BMW automobile drive to Appellant’s location on Ruscomb Street. Id. 

Appellant then walked up to the driver’s window, and Appellant and the 

driver of the BMW engaged in a brief conversation. Id. at 50. During this 

conversation, Officer Robinson observed the driver hand Appellant U.S. 

currency, and Appellant then handed the driver a small object that Appellant 

retrieved from his waistband. Id. The vehicle immediately left the scene. 

Id. Backup officers executed a traffic stop of the BMW approximately thirty 

seconds later and recovered illegal drugs. Id. At approximately 9:25 p.m., 

Appellant entered a silver-colored Buick that was parked on Ruscomb Street. 

Id. at 53. Believing that Appellant was going to drive away, Officer 

Robinson requested that the backup officers arrest Appellant. Id. Prior to 

the officers arriving on the scene, however, Appellant exited the Buick and 
J-S89015-16

- 3 -

entered the Chinese store, and the responding officer arrested Appellant 

therein. Id.

Following Appellant’s arrest, he was transported to the Philadelphia 

Police Thirty-Fifth District building. N.T., 2/18/15, at 55. A search of 

Appellant’s person revealed a clear zip-top baggie containing marijuana and 

$280.00 in U.S. currency. Id. at 55. The zip-top baggie Appellant 

possessed was similar to the baggie recovered from the driver of the BMW. 

Id. 

Appellant was charged with possession of a controlled substance with 

intent to deliver (“PWID”), possession of a controlled substance, and 

possession of a small amount of marijuana. On August 28, 2012, a hearing 

was held on Appellant’s motion to suppress the physical evidence seized 

from Appellant’s person. At the conclusion of the hearing, the trial court 

denied Appellant’s suppression motion. N.T., 8/28/12, at 27. This matter 

proceeded to a jury trial which began on February 18, 2015, and concluded 

on February 20, 2015. At trial, the Commonwealth proceeded on only the 

PWID charge. At the conclusion of the trial, the jury found Appellant guilty 

of PWID, and on April 24, 2015, the trial court sentenced Appellant to a term 

of nine to twenty-three months of incarceration followed by three years of 

probation. No post-sentence motions were filed, and this timely appeal 

followed.
J-S89015-16

- 4 -

Before we address the issues raised in the Anders brief, we must 

resolve appellate counsel’s request to withdraw. Commonwealth v. 

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). We note that 

there are procedural and briefing requirements imposed upon an attorney 

who seeks to withdraw on direct appeal. The procedural mandates are that 

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.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within his petition 

to withdraw, counsel averred that after making a conscientious examination 

of the record, he concluded that the present appeal is wholly frivolous. 

Counsel sent Appellant a copy of the Anders brief and the petition to 

withdraw, as well as a letter advising Appellant that he could represent 

himself or retain private counsel to represent him. 

We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide 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 
J-S89015-16

- 5 -

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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

We are satisfied that counsel has met the requirements set forth in 

Santiago. Counsel’s brief sets forth the factual and procedural history of 

this case, cites to the record, and refers to an issue that counsel arguably 

believes supports the appeal. Anders Brief at 4-9. Further, the brief 

includes counsel’s conclusion that the appeal is frivolous, and it contains 

pertinent case authority and counsel’s reasons for concluding that the appeal 

is frivolous. Id. at 11-15. Accordingly, we address the issues raised in the 

Anders brief:

1. Was the evidence sufficient to find [Appellant] guilty beyond a 

reasonable doubt of [PWID]?

2. Did the lower court err in failing to suppress evidence?

3. Was [Appellant’s] sentence legal?

Anders Brief at 3.1 

In the Anders brief, counsel presents challenges to both the 

sufficiency of the evidence and a challenge to the order denying Appellant’s 

motion to suppress. When an appellant raises both a challenge to the 

sufficiency of the evidence and a suppression issue, we address the 

____________________________________________

1

For purposes of our discussion, we have renumbered the issues.
J-S89015-16

- 6 -

sufficiency of the evidence supporting the conviction first, and we do so 

without a diminished record:

[W]e are called upon to consider all of the testimony that was 

presented to the jury during the trial, without consideration 

as to the admissibility of that evidence. The question of 

sufficiency is not assessed upon a diminished record. Where 

improperly admitted evidence has been allowed to be considered 

by the jury, its subsequent deletion does not justify a finding of 

insufficient evidence. The remedy in such a case is the grant of 

a new trial. 

Commonwealth v. Sanford, 863 A.2d 428, 432 (Pa. 2004) (quoting 

Commonwealth v. Smith, 568 A.2d 600, 603 (Pa. 1989) (emphasis in 

original).

With respect to Appellant’s sufficiency claim: 

[t]he 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. In applying [the above] test, 

we may not weigh the evidence and substitute our judgment for 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part 

or none of the evidence.
J-S89015-16

- 7 -

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting 

Commonwealth v. Jones, 874 A.2d 108, 120–121 (Pa. Super. 2005 

(citations omitted)).

The crime of PWID is defined as follows:

Except as authorized by this act, the manufacture, delivery, or 

possession with intent to manufacture or deliver, a controlled 

substance by a person not registered under this act, or a 

practitioner not registered or licensed by the appropriate State 

board, or knowingly creating, delivering or possessing with intent 

to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

As discussed above, Officer Robinson personally witnessed Appellant 

engage in two separate hand-to-hand transactions where individuals handed 

Appellant money in exchange for items Appellant had hidden in the 

waistband of his pants. A legal search of Appellant’s person following his 

arrest revealed a clear zip-top baggie containing marijuana and $280.00 in 

U.S. currency, and the zip-top baggie Appellant possessed was similar to the 

baggie recovered from the driver of the BMW with whom Appellant had 

engaged in a hand-to-hand transaction moments earlier. N.T., 2/18/15, at 

55. Moreover, no paraphernalia indicating personal use was discovered in 

Appellant’s possession. See Commonwealth v. Ratsamy, 934 A.2d 1233, 

1238 (Pa. 2007) (“Possession with intent to deliver can be inferred from the 

quantity of the drugs possessed and other surrounding circumstances, such 

as lack of paraphernalia for consumption.”). Thus, we conclude that the 

evidence was sufficient to establish that Appellant possessed marijuana and, 
J-S89015-16

- 8 -

in fact, distributed it to another person. The challenge to the sufficiency of 

the evidence fails.

Next, counsel presents an argument that the trial court erred in 

denying Appellant’s suppression motion. In addressing a challenge to the 

denial of a suppression motion, our standard of review:

is limited to determining whether the suppression court’s factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. Because the 

Commonwealth prevailed before the suppression court, we may 

consider only the evidence of the Commonwealth and so much of 

the evidence for the defense as remains uncontradicted when 

read in the context of the record as a whole.[2] Where the 

suppression court’s factual findings are supported by the record, 

we are bound by these findings and may reverse only if the 

court’s legal conclusions are erroneous. Where ... the appeal of 

the determination of the suppression court turns on allegations 

of legal error, the suppression court’s legal conclusions are not 

binding on an appellate court, whose duty it is to determine if 

the suppression court properly applied the law to the facts. Thus, 

the conclusions of law of the courts below are subject to our 

plenary review.

____________________________________________

2

In the case of In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court 

prospectively applied a new rule regarding the scope of review in 

suppression matters. Specifically, the L.J. Court clarified that an appellate 

court’s scope of review in suppression matters includes the suppression 

hearing record and not evidence elicited at trial. Id. at 1087. However, the 

suppression hearing in the case at bar was held on August 28, 2012, and it 

predates the decision in L.J. Therefore, the holding in L.J. has no bearing 

on our review. Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. 2014).
J-S89015-16

- 9 -

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations 

omitted)).

We reiterate, Officer Robinson personally witnessed Appellant engage 

in separate hand-to-hand transactions where individuals handed Appellant 

money in exchange for items Appellant had hidden in the waistband of his 

pants. Based on his experience and the amount of drug trafficking in the 

area, Officer Robinson concluded that the exchanges in which Appellant 

engaged were sales of controlled substances and supported probable cause 

to arrest Appellant. Moreover, the second transaction, involving the person 

in the blue BMW, resulted in a traffic stop and the discovery of a controlled 

substance contained in a baggie similar to a baggie found on Appellant. This 

testimony, which came from an experienced drug interdiction officer who 

observed the hand-to-hand exchanges in a high drug-trafficking area, given 

the totality of the circumstances, established probable cause to arrest 

Appellant and search Appellant’s person. Commonwealth v. Dixon, 997 

A.2d 368, 378 (Pa. Super. 2010). We discern no error or abuse of discretion 

in the trial court’s conclusion that the facts presented by the Commonwealth 

established probable cause to arrest Appellant, and the trial court properly 

denied Appellant’s suppression motion.

Counsel’s final claim of error presented in the Anders brief is that the 

sentence that the trial court imposed was illegal. An illegal sentence is one 
J-S89015-16

- 10 -

that exceeds the statutory limits. Commonwealth v. Bradley, 834 A.2d 

1127, 1131 (Pa. 2003) (quotation marks and citation omitted). Issues 

concerning the legality of a sentence are questions of law; our standard of 

review over such questions is de novo and our scope of review is plenary. 

Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super. 2016) (citation 

omitted).

Here, Appellant was convicted of PWID marijuana which carries a 

maximum sentence of five years for a first offense. 35 P.S. § 780-113(f)(2). 

However, this was Appellant’s second offense, and as such, his status as a 

recidivist increased the sentence for this conviction to a maximum term of 

ten years of incarceration. 35 P.S. § 780-115(a). Appellant received a 

sentence of nine to twenty-three months of incarceration followed by three 

years of probation. Because Appellant’s sentence is well below the statutory 

maximum sentence of ten years, Appellant received a legal sentence, and 

there is no merit to this claim.

Finally, we note that we also have independently reviewed the record 

in order to determine whether there are any non-frivolous issues present in

this case that Appellant may raise. Commonwealth v. Harden, 103 A.3d 

107, 111 (Pa. Super. 2014). Having concluded that there are no meritorious 

issues, we grant Appellant’s counsel permission to withdraw, and we affirm 

the judgment of sentence.
J-S89015-16

- 11 -

Petition of counsel to withdraw is granted. Judgment of sentence 

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016