J

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

COMMONWEALTH OF PENNSYLVANIA

v.

SHAMAL SONY GRANDOIT ,

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 190 MDA 2019 Appeal from the Judgment of Sentence Entered June 7, 2017 i n the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP

- 40

- CR

- 0002472

- 2016

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: DECEMBER 27, 2019
Shamal Sony Grandoit (“ Grandoit ”) appeals from the judgment of
sentence imposed after a jury convicted him of possession with intent to
deliver a controlled substance, possession of a controlled substance,
possession of drug par aphernalia, and criminal use of a communication
facility

. 1 Additionally, Grandoit ’s counsel, Matthew P. Kelly, Esquire (“Attorney
Kelly”), has filed a Petition to Withdraw as counsel and an accompanying brief

pursuant to Anders v. California , 386 U.S. 738 , 744 (1967). We grant
Attorney Kelly’s Petition to Withdraw and affirm Grandoit ’s judgment of

sentence.

O n May 13, 2016, a Kingston Borough P olice Department officer
observed Grandoit engage in what the officer believed to be a hand

- to

- hand
drug transaction , which occurred behind a restaurant . Grandoit then got i nto

_________________ __________ ______ ____ _______

1 See 35 P.S. § 780

- 113(a)(30) , (16), (32); 18 Pa.C.S.A. § 7512 (a).J

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a vehicle and drove away, after which the pol ice stopped the vehicle , and
placed Grandoit in custody

. Shortly thereafter, the police returned to the

restaurant in an attempt to locat e the person who, the police suspected, had
purchased drugs from Grandoit . The police encountered and questioned
Derek Lewis (“Lewis”), who was employed at the restaurant . Lewis confessed
that he had purchased ten bags of heroin from Grandoit , and identi fied
Grandoit in a police photograph

. Lewis also showed the police text messages
between him and Grandoit concerning the transaction (hereinafter, the “text
message evidence”)

. The Commonwealth subsequently charged Grandoit

with the above

- mentioned crime s.
The matter proceeded to a jury trial, at the close of which the jury found
Grandoit guilty of the above

- mentioned crimes . O n June 7, 2017, t he trial

court sentenced Grandoit to a n aggregate term of 35 to 70 months in prison

.
G randoit did not initially file a direct appeal. However, Grandoit’s direct appeal
rights were subsequently reinstated, nunc pro tunc . The trial court appointed
Attorney Kelly to represent Grandoit. Attorney Kelly filed a timely Notice of
Appeal and a co urt

- ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal. In response, the trial court issued a Rule 1925(a)
Opinion. Thereafter, Attorney Kelly filed, with this Court, an Anders Brief and

a Petition to W ithdraw as counsel. 2

_________________ __________ ______ ____ _______

2 Grandoit neither filed a pro se brief, nor retained alternate counsel for this appeal.J

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B efore addressing Grandoit’s issue s on appeal, we must determine
whether Attorney Kelly has complied with the dictates of Anders and its
progeny in petitioning to withdraw from representation. See

Commonwealth v. Edwards , 906 A.2d 1225, 1227 (Pa. Super. 20 06).

Pursuant to Anders , when counsel believes that an appeal is frivolous and
wishes to withdraw from representation, he or she must

(1) petition the court for leave to withdraw [,] stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the court.

Commonwealth v. Burwell , 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
Additionally , the Pennsylvania Supreme Court has explained that a

proper Anders 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 l ed to the conclusion that the appeal is frivolous.
Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009).J

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In the instant case, our review of the Anders Brief and the Petition to
Withdraw reveals that Attorney Kelly has complied with all of the requirements

of Anders

/ Santiago . The record further reflects that Attorney Kelly has (1)
provided Grandoit with a copy of both the Anders Brief and Petition to

W ithdraw, (2) sent a letter to Grandoit advising him of his right to retain new

counsel , proceed pro se or raise any additional points that he deems worthy
of this Court’s attention, and (3) attached a copy of this letter to the Petition

to W ithdraw, as required under Commonwealth v. Millisock , 873 A.2d 748,

751

- 52 (Pa. Super. 2005). Accord ingly, we must next examine the record
and make an independent determination of whether Grandoit’s appeal is, in
fact, wholly frivolous.
Attorney Kelly presents the following issue s , on behalf of Grandoit , for

our review:

I. Whether trial counsel was ine ffective in failing to object to [introduction of the] ... text message evidence at trial[?]

II. Whether the Commonwealth failed to prove beyond a reasonable doubt that [ Grandoit] sold drugs to the Commonwealth’ s witness[?]

III. Whether the use of a single picture to identify [ Grandoit] at trial was proper[?]

IV. Whether the traffic stop of [ Grandoit] was illegal[?]

Anders Brief at 1.

Grandoit first argues that his trial counsel rendered ineffective
assistance by failing to objec t to the introduction of the text message evidenceJ

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at trial

. Id. at 5. It is well

- settled that ineffectiveness claims may not be
raised in the first instance on direct appeal. Commonwealth v. Holmes , 79

A.3d 562 , 563 (Pa. 2013) (reaffirming the general rule of deferral to Post
Conviction Relief Act (“PCRA”) collateral review of ineffectiveness claims set

forth in Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002)). Consequently,

w e deny relief, without prejudice to Grandoit’s right to challenge counsel’s

ef fectiveness in a timely

- filed PCRA petition.

In his second issue, Grandoit challenges the sufficiency of the evidence
supporting his convictions, contending that “ the Commonwealth failed to
prove beyond a reasonable doubt that [Grandoit] sold drugs to [Lewis].”

Anders Brief at 5. 3

_________________ __________ ______ ____ _______

3 Preliminarily, we note that Grandoit does not specify the convictions, or the elements thereof, that he challenges as not being supported by sufficient evidence. This Court has explained that

whe n challenging the sufficiency of the evidence on appeal, the [a]ppellant’s [court

- ordered Rule 1925(b) concise] statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. Such specifi city is of particular importance in cases where ... the [a]ppellant was convicted of multiple crimes[,] each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.

Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super . 2009) (citations and quotation marks omitted). If the appellant does not specify such elements, the sufficiency claim is deemed waived. Id. Accordingly, we could determine that Grandoit waived his sufficiency challenge

. Nevertheless, we will briefly address the merits of the claim, as the trial court discussed it in its Opinion.J

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Our standard of review of a sufficiency of the evidence claim is well

settled:

Our standard of review is whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to enable the fact finder to conclude that the Commonwealth e stablished all of the elements of the offense beyond a reasonable doubt.

Commonwealth v. Cruz , 71 A.3d 998, 1006 (Pa. Super. 2013) (citation and
brackets omitted).
The trial court addressed and rejected Grandoit’s sufficiency challenge

in its Opinion as follows :

Detective John Anthony [(“Detective Anthony”)] of the Kingston Borough Police Department testified that on May 13, 2016, he observed what his training suggested to him was a hand [

- ] to [

- ] hand drug transaction between two m en [,] later identified as [Grandoit] and [] Lewis. N.T. 4/25/17 at 22, 24

- 25. After the transaction occurred, [Grandoit] drove away in a vehicle that was later stopped by police. Id. at 29, 41. The police then made contact with [] Lewis, who admitted tha t he bought heroin from [Grandoit,] and turned over the ten packets that were the subject of the transaction. Id. at 30, 77. At trial, Lewis identified [Grandoit] as the person from whom he purchased heroin on the day in question. I

d. at 52. Additional ly, Lewis testified that at the time, he was a drug user, and that he purchased heroin from [Grandoit] after communicating w ith him through text messages. I d

. at 52, 54

- 57, 60

- 61. The [p] olice investigation confirmed the existence of this text conversati on between the cell [phone] number associated with the cell phone seized from [Grandoit] on May 13, 2016, and the phone provided to police by [] Lewis. Id. at 53, 58.
Based on the evidence presented by the Commonwealth, we suggest that the record, viewed in the light most favorable to the Commonwealth as the verdict winner [,] and giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence, establishes each material element of theJ

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crime [s] charged and the commission thereof by [Grandoit] , beyond a reasonable doubt. As such, the evidence is sufficient to support the [] conviction [s] []

. Trial Court Opinion, 5/24/19, at 4

- 5. The trial court’s analysis is supported by

the law and the record, and we thus affirm on this basis in concluding that
Grandoit’s sufficiency challenge is frivolous. See id.
In his third issue, Grandoit “contends that the use of a single picture to
identify him as the perpetrator was improper.” Anders Brief at 6.
In its Opinion, the trial cour t determined that Grandoit failed to preserve

this issue:
[Grandoit’s Pa.R.A.P.] 1925(b) Statement does not cite to the location in the record where trial counsel objected to the use of a single picture to identify [Grandoit] , and our own review of the record indicates that no such objection was made. As such, any challenge to the use of a single picture to identify [Grandoit] is waived for failure to raise it before the trial court. Pa.R.A.P. 302(a) ([providing that] “ [i] ssues no t raised in the lower court are waived and cannot be raised for the first time on appeal.” ); Commonwealth v. Cole , 167 A.3d 49, 64 (Pa. Super. 2017), appeal denied , 186 A.3d 370 (Pa. 2018); Commonwealth v. Douglass , 701 A.2d 1376, 1378 (Pa. Super. 1997) ( [ holding that] appellant waived claim that identification evidence should be suppressed because the procedure was impermissibly suggestive [,] where appellant failed to move to suppress the identification; and such failure precludes its litigation for the fi rst time at trial, in post

- trial motions or on appeal). [FN 1 ]

[FN 1 ] Even if preserve d, a challenge to the use of a “single picture” would not appear to provide [Grandoit] relief, sin ce the record is clear that [Grandoit] was identified in person by Detective Anthony and by [] Lewis.J

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Trial Court Opinion, 5/24/19, at 5 (footnote in original). We agree with the
trial court’s analysis and determination, which is supported by the law and the
record. Accordingly, this claim entitles Grandoit to no relief.

In his fourth and final issue, Grandoit baldly argues that “the traffic stop
was illegal.” Anders Brief at 6

.
The trial court determined that Grandoit also failed to pr eserve this
claim, stating as follows:
As with the previous issue, [Grandoit’s] Rule 1925(b) Statement does not cite to the location in the record where trial counsel objected to the legality of the traffic stop, [FN 2 ] and our own review of the record indi cates that no such objection was made. Also as noted above, no suppression motion was filed in th is case, and at no time did [Grandoit] argue before the trial court that the tr affic stop was “illegal” in any respect. Because [Grandoit] did not raise this alleged error before the trial court, it does not entitle [] him to relief on direct appeal. Pa.R.A.P. 302(a).

[FN 2 ] The R ule 1925(b) Statement does not specify the manner in which the traffic stop was allegedly illegal.
Trial Court Opinion, 5/24/19, at 6 (footnote in original and location moved)

. The trial court’s analysis is supported by the record, and we likewise conclude

that this claim is waived.
Finally, because our independent review of the record discloses no

additional non

- frivolous issues t hat Grandoit could raise on appeal, we grant

Attorn ey Kelly’s Petition to Withdraw and affirm Grandoit’s judgment of

sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1 2/27/2019