J-S05038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE DOLORES SOLORZANO-ROJAS,

Appellant No. 670 MDA 2015

Appeal from the Judgment of Sentence October 27, 2014

in the Court of Common Pleas of York County

Criminal Division at No.: CP-67-CR-0004370-2008

BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 03, 2016

Appellant, Jose Dolores Solorzano-Rojas, appeals nunc pro tunc from 

the judgment of sentence imposed following his jury conviction in his second 

trial of three counts of delivery of a controlled substance and two counts of 

possession with intent to deliver a controlled substance (PWID).1 Counsel 

for Appellant has petitioned to withdraw on the ground that his issue on 

appeal is wholly frivolous.2 We grant counsel’s petition to withdraw and 

affirm the judgment of sentence.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).

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

Santiago, 978 A.2d 349 (Pa. 2009).
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We take the following facts and procedural history from our 

independent review of the record, including notes of testimony from 

Appellant’s August 12-15, 2014 jury trial. In May of 2008, Pennsylvania 

State Police Trooper Christopher Keppel led an undercover drug distribution 

investigation focused on Appellant, and he executed a series of controlled 

buys of cocaine and marijuana through a confidential informant (CI). On 

May 9, 2008, the CI arranged to purchase 3.5 grams of cocaine and a 

quarter pound of marijuana from Appellant for $700.00. Trooper Keppel and 

the CI drove to a Blockbuster parking lot as Appellant instructed, and 

Appellant parked his white Acura one parking space away from them. The 

CI entered the passenger side of Appellant’s vehicle, and Trooper Keppel 

observed Appellant give the CI a package in exchange for money. The CI 

immediately re-entered Trooper Keppel’s vehicle and the trooper took 

custody of the package of drugs. 

On May 14, 2008, the CI arranged to purchase fourteen grams of 

cocaine from Appellant for $720.00. Trooper Keppel and the CI again went 

to an agreed-upon parking lot, and Appellant parked his white Acura directly 

behind the trooper’s vehicle. The CI entered Appellant’s vehicle, and 

exchanged money for cocaine. The CI immediately returned to Trooper 

Keppel’s vehicle and the trooper took custody of the drugs. 

On May 20, 2008, the CI arranged to purchase a quarter pound of 

marijuana from Appellant for $350.00. Trooper Keppel and the CI drove to 

the agreed-upon parking lot and pulled into the parking space next to 
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Appellant’s Acura. After the CI and Appellant completed the transaction in 

the Acura, the CI returned to Trooper Keppel’s vehicle and gave him the 

drugs.

On May 21, 2008, based on the controlled buys, police obtained a 

search warrant for the house where they believed Appellant resided—927-

1/2 Carlisle Street, which is located approximately two blocks from where 

the controlled buys occurred.3 Trooper Keppel instructed the CI to arrange a 

final drug purchase from Appellant of three ounces of cocaine, and he 

planned to arrest Appellant before the transaction was executed. Trooper 

Keppel and the CI arrived at the pre-arranged parking lot and Appellant 

parked his Acura one space away from them. Pursuant to Trooper Keppel’s 

instructions, the CI approached Appellant’s vehicle, and nodded his head to 

indicate that the drugs were inside. Trooper Keppel then signaled his team 

to arrest Appellant. Appellant exited his vehicle, shoved the CI, and threw 

an item from his person before the officers took him into custody. Trooper 

Keppel recovered the item thrown by Appellant, a bag of cocaine, in the 

immediate vicinity. Police then proceeded with Appellant to 927-1/2 Carlisle 

Street to execute the search warrant. 

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3

Police checked township records to confirm that this was Appellant’s 

address. (See N.T. Trial, 8/13/14, at 172-73).
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After police secured the residence, they brought Appellant into the 

kitchen, and advised him of his Miranda4rights. Appellant admitted that he 

lived at the residence with his wife and three children. Police found various 

items bearing Appellant’s name, including photocopies of his driver’s license, 

bills, checks, and an insurance policy cover sheet throughout the residence.5 

Police also recovered the following items from the residence: a digital scale; 

three boxes of sandwich bags; a bag of small Ziploc bags; a bag of corner 

bags; a bottle of inositol;6 110 grams of cocaine; a small bag of marijuana; 

six packaged sums of cash, in the amounts of $1,004.00, $2,000.00, 

$2,000.00, $2,000.00, $1,000.00, and $1,000.00. Some of the serial 

numbers on the currency recovered from the residence matched the serial 

numbers on the official funds used during the May 20, 2008 controlled buy.

On May 4, 2009, Appellant proceeded to a jury trial, and the jury 

found him guilty of various drug-related offenses. On July 27, 2009, the 

trial court sentenced him to an aggregate term of not less than seven nor 

more than fourteen years’ incarceration. On direct appeal, this Court 

____________________________________________

4 Miranda v. Arizona, 384 U.S. 436 (1966).

5 The residence is a double house and the address of the adjoining residence 

is 972 Carlisle Street. (See N.T. Trial, 8/13/14, at 165). Some of the items 

recovered from 972-1/2 Carlisle Street bearing Appellant’s name listed the 

address of the adjoining residence, 972 Carlisle Street, instead of 972-1/2 

Carlisle Street. (See id. at 171-72).

6

Inositol is a vitamin supplement used as a cutting agent for cocaine. (See

N.T. Trial, 8/14/14, at 256). 
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vacated the judgment of sentence and remanded for a new trial. (See

Commonwealth v. Solorzano-Rojas, No. 35 MDA 2010, unpublished 

memorandum at *1, *10 (Pa. Super. filed Sept. 14, 2010)).7 The 

Pennsylvania Supreme Court denied the Commonwealth’s petition for 

allowance of appeal on March 27, 2013. (See Commonwealth v. 

Solorzano-Rojas, 63 A.3d 1247 (Pa. 2013)).

On August 12, 2014, Appellant proceeded to a second jury trial, and 

the jury convicted him of the above-stated offenses. On October 27, 2014, 

the trial court sentenced Appellant to an aggregate term of not less than 

seven nor more than fourteen years’ incarceration, in accordance with the 

mandatory minimum sentence requirements for drug trafficking. On March 

16, 2015, following Appellant’s timely filing of a post-sentence motion and a 

hearing, the court entered an order re-sentencing him without application of 

the mandatory minimum provisions,8to an aggregate term of not less four 

and one half nor more than nine years’ incarceration. On April 16, 2015, 

one day after the appeal period expired, Appellant simultaneously filed a 

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7 This Court’s disposition was based on its conclusion that the trial court 

failed to take sufficient protective measures to ensure the integrity of the 

jury’s function after an alternate juror was impaneled during jury 

deliberations. (See id. at *7, *9-10). 

8 See Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014), 

appeal denied, 121 A.3d 494 (Pa. 2015) (holding mandatory minimum 

sentencing statute relating to drug trafficking unconstitutional in light of 

Alleyne v. United States, 133 S.Ct. 2151 (2013)).
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petition to file a notice of appeal nunc pro tunc and a notice of appeal. On 

April 17, 2015, the trial court entered an order granting the petition and 

accepting the notice of appeal as timely.9

On August 10, 2015, counsel filed an Anders brief and a petition to 

withdraw as counsel stating his belief that there are no non-frivolous issues 

to raise on appeal. (See Petition to Withdraw as Counsel, 8/10/15, at 

unnumbered page 1 ¶ 3). Counsel submitted to this Court a copy of his 

letter to Appellant, enclosing a copy of the Anders brief. (See Letter from 

Anthony J. Tambourino, Esq. to Appellant, 8/10/15, at unnumbered page 1). 

Appellant has not responded.

[I]n the Anders brief that accompanies . . . 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.

Santiago, supra at 361.

 Anders counsel must also provide a copy of the Anders

petition and brief to the appellant, advising the appellant of the 

right to retain new counsel, proceed pro se or raise any 

additional points worthy of this Court’s attention.

____________________________________________

9

Pursuant to the trial court’s order, Appellant filed a timely concise 

statement of errors complained of on appeal on June 8, 2015. The trial 

court filed an opinion on June 24, 2015. See Pa.R.A.P. 1925. 
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 If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions 

(e.g., directing counsel to either comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our 

own review of the appeal to determine if it is wholly frivolous. If 

the appeal is frivolous, we will grant the withdrawal petition and 

affirm the judgment of sentence. However, if there are nonfrivolous issues, we will deny the petition and remand for the 

filing of an advocate’s brief. 

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008) 

(citations omitted).

In the instant case, counsel has complied with the Anders and 

Santiago requirements. He has submitted a brief that summarizes the 

case, (see Anders Brief, at 5-9); referred to anything that might arguably 

support the appeal, (see id. at 10-13); and set forth his reasoning and 

conclusion that the appeal is frivolous, (see id. at 13-14). See Santiago, 

supra at 361. Counsel has sent Appellant a letter enclosing a copy of the 

Anders brief and petition to withdraw, and notifying him of his right to 

retain new counsel or proceed pro se. Because counsel’s petition and brief 

satisfy the requirements of Anders and Santiago, we will undertake our 

own review of the appeal to determine if it is wholly frivolous. See 

O’Malley, supra at 1266.

The Anders brief raises one issue for our review: “Whether the 

Commonwealth failed to present sufficient evidence in order to convict 

Appellant beyond a reasonable doubt of possession with intent to deliver, 

because the Commonwealth failed to prove Appellant actually or 
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constructively possessed the drugs found in 972-1/2 Carlisle Street?” 

(Anders Brief, at 4) (some capitalization omitted). This issue does not 

merit relief. 

The 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 

finder 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.

Commonwealth v. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015) 

(citations omitted). 

The Controlled Substance, Drug, Device and Cosmetic Act defines the 

crime of PWID as follows:

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited:

* * *

(30) 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 
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State board, or knowingly creating, delivering or possessing with 

intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

In the instant case, Appellant challenges the element of possession, 

arguing that the Commonwealth failed to establish his actual or constructive 

possession of the drugs recovered from 972-1/2 Carlisle Street. (See 

Anders Brief, at 11). Appellant denies that he resided at the 972-1/2 

Carlisle Street address, and points out that the many of the items police 

found bearing his name list his address as 972 Carlisle Street, not 972-1/2 

Carlisle Street. (See id. at 13). This issue lacks merit.

We begin by observing that because Appellant was not in physical 

possession of the drugs recovered from 972-1/2 Carlisle Street, the 

Commonwealth was required to establish that he had constructive 

possession of them. See Commonwealth v. Brown, 48 A.3d 426, 430 

(Pa. Super. 2012), appeal denied, 63 A.3d 1243 (Pa. 2013). 

Constructive possession is a legal fiction, a pragmatic construct

to deal with the realities of criminal law enforcement. 

Constructive possession is an inference arising from a set of 

facts that possession of the contraband was more likely than not. 

We have defined constructive possession as “conscious 

dominion.” We subsequently defined “conscious dominion” as 

“the power to control the contraband and the intent to exercise 

that control.” To aid application, we have held that constructive 

possession may be established by the totality of the 

circumstances.

Id. (citation omitted).

Here, prior to executing the search warrant, police checked township 

records to confirm that 972-1/2 Carlisle Street was Appellant’s address. 
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(See N.T. Trial, 8/13/14, at 172-73). Trooper Keppel testified that, when he 

brought Appellant to 972-1/2 Carlisle Street, Appellant admitted that he 

lived at the residence with his wife and children. (See id. at 141-42). 

Trooper Keppel further testified that numerous documents and paperwork 

bearing Appellant’s name were found throughout the residence. (See id. at 

152, 171-72, 179-80). The trooper indicated that, although some of the 

items bearing Appellant’s name listed the address of the adjoining residence, 

972 Carlisle Street, instead of 972-1/2 Carlisle Street, all of these items 

were found in the 972-1/2 residence. (See id. at 171, 179-80). In 

addition, after the search, police traced some of the cash recovered from 

972-1/2 to the currency used during one of the controlled buys, thereby 

further linking Appellant to that residence. (See id. at 153-54, 177).

In contrast, Appellant testified that he resided at 972 Carlisle Street, 

and not at the 972-1/2 Carlisle Street residence where the drugs and items 

related to drug trafficking were found. (See N.T. Trial, 8/14/14, at 293, 

297-98). He stated that, although he sometimes visited friends at the 972-

1/2 residence, he did not keep any items or paperwork there. (See id. at 

293). When questioned by the Commonwealth about Trooper Keppel’s 

testimony to the contrary, Appellant averred that the trooper was lying 

about where the items bearing his name were found. (See id. at 295-98). 

Based on the totality of the circumstances, and viewing the evidence in 

the light most favorable to the Commonwealth as we must under our 

standard of review, we conclude that there was ample evidence to support 
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the jury’s determination that Appellant constructively possessed the 

narcotics found at 972-1/2 Carlisle Street. See Giordano, supra at 1002; 

Brown, supra at 430. The evidence presented by the Commonwealth

established that Appellant was selling drugs and that he resided at 972-1/2 

Carlisle Street, where a significant amount of cocaine and various items used 

in drug trafficking were found. The jury did not find Appellant’s testimony 

regarding his residence credible, and it, as finder of fact, was “free to believe 

all, part or none of the evidence.” Giordano, supra at 1003. Accordingly, 

Appellant’s issue on appeal does not merit relief. Furthermore, after 

independent review, we determine that there are no other non-frivolous 

bases for appeal, and this appeal is “wholly frivolous.” O’Malley, supra at 

1266.

Judgment of sentence affirmed. Petition for leave to withdraw as 

counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2016