J-S01013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

KADEEM SHATIM ALFORD

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 988 MDA 2016

Appeal from the Judgment of Sentence March 29, 2016

In the Court of Common Pleas of Lycoming County 

Criminal Division at No(s): CP-41-CR-0001237-2015

BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 03, 2017

Appellant, Kadeem Shatim Alford, appeals from the judgment of 

sentence entered in the Lycoming County Court of Common Pleas, following 

his jury trial convictions of one count each of knowing or intentional 

possession of a controlled substance, delivery of a controlled substance, 

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

possession of drug paraphernalia, and criminal use of communication 

facility.1 We affirm and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows. 

On April 20, 2015, Ms. Kristin Terry received a text message from an 

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1 35 P.S. § 780-113(a)(16), (a)(30), (a)(32); 18 Pa.C.S.A. § 7512. 

respectively. 
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unknown number stating that “Big Blue” (Appellant’s alias) had heroin for 

sale. Ms. Terry and Appellant arranged for the location of the heroin 

purchase to be in the Domino’s Pizza parking lot in the City of Williamsport. 

Ms. Terry and her female friend drove to meet Appellant for the heroin. 

When the women arrived and Appellant entered the vehicle, the women 

asked to sample the heroin. 

That same day, the police were informed of an erratic driver traveling 

along a highway in the City of Williamsport, and that the vehicle had turned 

into the parking lot of a Domino’s Pizza. When the police arrived and 

approached the vehicle, Captain Jody Miller observed two females, one in 

the driver seat and the other in the passenger seat, and one male, 

Appellant, in the rear driver’s side seat. The driver, Ms. Terry, had in her 

hand a hypodermic needle and two blue glassine baggies filled with a 

substance. Appellant slowly tried to hide the forty-three remaining glassine 

baggies from Captain Miller, by pushing them into the area between the 

vehicle’s center console and the driver’s seat, near Ms. Terry’s leg. When 

Captain Miller saw Appellant’s furtive actions, she ordered the passengers to 

show their hands. Instead, Appellant attempted to escape the vehicle and 

flee on foot. 

Captain Miller apprehended Appellant, arrested him, and searched 

him. Captain Miller discovered approximately $200.00 in United States 

currency and two cellular phones. The police never recovered the cellular 
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phone records of Appellant’s phones or Ms. Terry’s phone. At trial, the 

Commonwealth’s expert testified that people who sell illegal drugs commonly 

carry two phones, one for their illegal business and the other for their 

personal use. 

On May 5, 2015, the Commonwealth filed a criminal complaint against 

Appellant charging him with knowing or intentional possession of a 

controlled substance, delivery of a controlled substance, PWID, possession of 

drug paraphernalia, and criminal use of communication facility. A jury trial 

was held on January 25, 2016. The following day, the jury convicted 

Appellant of all charges. On March 29, 2016, the court sentenced Appellant 

to an aggregate term of 33 to 132 months’ imprisonment, plus a fine and 

the costs of prosecution. 

On April 8, 2016, Appellant filed a post-sentence motion, challenging 

the discretionary aspects of his sentence and the sufficiency of the evidence 

with respect to each of Appellant’s convictions. On May 23, 2016, the court 

denied Appellant relief. Appellant timely filed a notice of appeal on June 16, 

2016. On June 28, 2016, the court ordered Appellant to file a concise 

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). 

Appellant timely complied on July 18, 2016. On October 26, 2016, counsel 

filed an Anders brief and a petition for leave to withdraw in this Court. 

As a preliminary matter, counsel seeks to withdraw his representation 

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 
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493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 

(2009). Anders and Santiago require counsel to: (1) petition the Court for 

leave to withdraw, certifying that after a thorough review of the record, 

counsel has concluded the issues to be raised are wholly frivolous; (2) file a 

brief referring to anything in the record that might arguably support the 

appeal; and (3) furnish a copy of the brief to the appellant and advise him of 

his right to obtain new counsel or file a pro se brief to raise any additional 

points the appellant deems worthy of review. Santiago, supra at 173-79, 

978 A.2d at 358-61. Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 

2007). After establishing that counsel has met the antecedent requirements 

to withdraw, this Court makes an independent review of the record to 

confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903 

A.2d 1244, 1246 (Pa.Super. 2006).

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation:

Neither Anders nor [Commonwealth v. McClendon, 495 

Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are 

references to anything in the record that might arguably 

support the appeal.

* * *
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Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n 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 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. 

Id. at 178-79, 978 A.2d at 361.

Instantly, Appellant’s counsel filed a petition to withdraw. The petition 

states counsel conducted a conscientious review of the record and 

determined the appeal is wholly frivolous. Counsel also supplied Appellant 

with a copy of the brief and a letter explaining Appellant’s right to retain new 

counsel or to proceed pro se to raise any additional issues Appellant deems 

worthy of this Court’s attention. (See Letter to Appellant, dated October 26, 

2016). In the Anders brief, counsel provides a summary of the facts and 

procedural history of the case. Counsel’s argument refers to relevant law 

that might arguably support Appellant’s issues. Counsel further states the 

reasons for his conclusion that the appeal is wholly frivolous. Therefore, 

counsel has substantially complied with the requirements of Anders and 

Santiago. 
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Counsel raises the following issues on Appellant’s behalf: 

WHETHER AN APPLICATION TO WITHDRAW AS COUNSEL 

SHOULD BE GRANTED WHERE COUNSEL HAS 

INVESTIGATED THE POSSIBLE GROUNDS FOR APPEAL 

AND FINDS THE APPEAL FRIVOLOUS[?]

WHETHER THE COMMONWEALTH PRESENTED SUFFICIENT 

EVIDENCE TO CONVICT [APPELLANT] OF DELIVERY OF A 

CONTROLLED SUBSTANCE, CRIMINAL USE OF A 

COMMUNICATION FACILITY, POSSESSION OF A 

CONTROLLED SUBSTANCE, AND POSSESSION OF DRUG 

PARAPHERNALIA[?]

(Anders Brief at 6). 

Appellant argues the Commonwealth presented insufficient evidence to 

convict Appellant of each of his convictions, even though the Commonwealth 

questioned Ms. Terry and Captain Miller regarding the events leading up to 

Appellant’s arrest, and the parties stipulated that the chain of custody of the 

glassine baggies had not been broken and that the substance in the baggies 

tested positive for heroin. Appellant concludes the record evidence failed to 

support each of his convictions. We disagree. 

A challenge to the sufficiency of the evidence implicates the following 

legal principles: 

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 
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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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) 

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

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

offenses of possession of a controlled substance, delivery of a controlled 

substance, PWID, and possession of drug paraphernalia, as follows:

§ 780-113. Prohibited acts; penalties

(a) The following acts and the causing thereof within 

the Commonwealth are hereby prohibited:

* * *

(16) Knowingly 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. 

* * *

(30) Except as authorized by this act, the 
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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. 

* * *

(32) The use of, or possession with intent to use, 

drug paraphernalia for the purpose of planting, 

propagating, cultivating, growing, harvesting, 

manufacturing, compounding, converting, producing, 

processing, preparing, testing, analyzing, packing, 

repacking, storing, containing, concealing, injecting, 

ingesting, inhaling or otherwise introducing into the 

human body a controlled substance in violation of this 

act. 

* * *

35 P.S. § 780-113(a)(16), (30), (32). Additionally, PWID requires the 

Commonwealth to prove beyond a reasonable doubt that the defendant both 

possessed the controlled substance and had the intent to deliver:

When determining whether a defendant had the requisite 

intent to deliver, relevant factors for consideration are the 

manner in which the controlled substance was packaged, 

the behavior of the defendant, the presence of drug 

paraphernalia, and large sums of cash. Expert opinion 

testimony is also admissible concerning whether the facts 

surrounding the possession of controlled substances are 

consistent with an intent to deliver rather than with an 

intent to possess it for personal use. The expert testimony 

of a witness qualified in the field of drug distribution, 

coupled with the presence of drug paraphernalia, is 

sufficient to establish intent to deliver. 

Commonwealth v. Carpenter, 955 A.2d 411, 414 (Pa.Super. 2008) 

(internal citations and quotation marks omitted). 
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Section 7512 of the Pennsylvania Crimes Code defines the offense of 

criminal use of communication facility in relevant part as follows:

§ 7512. Criminal use of communication facility

(a) Offense defined.—A person commits a felony of 

the third degree if that person uses a communication 

facility to commit, cause or facilitate the commission or the 

attempt thereof of any crime which constitutes a felony 

under this title or under [The Controlled Substance, Drug, 

Device and Cosmetic Act]. ... 

* * *

(c) Definition.—As used in this section, the term 

“communication facility” means a public or private 

instrumentality used or useful in the transmission of signs, 

signals, writing, images, sounds, data or intelligence of 

any nature transmitted in whole or in part, including, but 

not limited to, telephone, wire, radio, electromagnetic, 

photoelectronic or photo-optical systems or the mail.

18 Pa.C.S.A. § 7512 (a), (c). “[T]he Commonwealth must prove beyond a 

reasonable doubt that: (1) [Appellant] knowingly and intentionally used a 

communication facility; (2) [Appellant] knowingly, intentionally or recklessly 

facilitated an underlying felony; and (3) the underlying felony occurred.” 

Commonwealth v. Moss, 852 A.2d 374, 382 (Pa.Super. 2004). Facilitation 

has been defined as “any use of a communication facility that makes easier 

the commission of the underlying felony.” Id. 

Instantly, the trial court provided the following reasoning with regard 

to Appellant’s sufficiency of the evidence issue as follows:

[Appellant] contends the Commonwealth failed to present 

sufficient evidence to establish that he possessed the 

controlled substance in question. At trial Kristin Terry 
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testified that after receiving a text message from “Big 

Blue” she was instructed to go to Domino’s in Williamsport. 

Upon arriving at Domino’s [Appellant] got into the back 

seat of her vehicle. When [Ms.] Terry asked to “try the 

product” [Appellant] handed her two glassine bags. Upon 

the almost immediate arrival of the police, Ms. Terry 

testified that [Appellant] placed heroin between the 

console of her vehicle and her leg. Trooper Miller also 

testified as to “furtive” actions by [Appellant] in the back 

seat of the vehicle. This testimony was clearly sufficient 

for the jury to find that [Appellant] actually possessed the 

heroin in question.

While for reasons we were simply unable to understand at 

trial, the arresting officers failed to conduct any 

investigation with respect to a text message or the cell 

phones taken from [Appellant]. On the other hand, Ms. 

Terry clearly testified that she received a text message on 

a communication facility, and that consistent with that text 

message [Appellant] got into the back seat of her vehicle. 

The jury was certainly able to reach the conclusion that it 

was [Appellant] who sent the text message through the 

use of a communication facility. 

(Trial Court Opinion, filed on May 23, 2016, at 1-2). The record supports 

the court’s analysis. Appellant text messaged Ms. Terry stating he had 

heroin for sale. Ms. Terry and Appellant arranged for the location of the 

heroin purchase. When Ms. Terry and her female friend met Appellant, the 

women asked to sample Appellant’s heroin. Shortly after Captain Miller 

arrived at the scene, Appellant tried to hide the remaining glassine baggies 

near Ms. Terry’s leg. Following Appellant’s arrest, Captain Miller discovered 

two cellular phones on Appellant, which the Commonwealth’s expert testified 

are items consistent with those belonging to a person who sells drugs. 

Based on the foregoing, the Commonwealth presented sufficient evidence to 
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support each of Appellant’s convictions. See Jones, supra; 35 P.S. § 780-

113(a)(16), (30), (32); Carpenter, supra; 18 Pa.C.S.A. § 7512 (a); Moss, 

supra. Accordingly, we affirm the judgment of sentence, and following our 

independent review of the record, we grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2017