J-S35035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD FRANK SHAFFER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1839 WDA 2016

Appeal from the Judgment of Sentence November 3, 2016

In the Court of Common Pleas of Indiana County 

Criminal Division at No(s): CP-32-CR-0001188-2015

BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 06, 2017

Appellant Richard Frank Shaffer appeals from the judgment of 

sentence entered in the Court of Common Pleas of Indiana County on 

November 3, 2016, following his jury trial convictions of possession with the 

intent to deliver a controlled substance (heroin) and possession of a 

controlled substance (heroin).1 Appellant’s counsel also has filed a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967) and its 

Pennsylvania counterpart Commonwealth v. Santiago, 602 Pa. 159, 978 

A.2d 349 (2009) (hereinafter “Anders Brief”) together with a petition to 

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Former Justice specially assigned to the Superior Court.

1 35 Pa.C.S.A. §§ 780-113(a)(30) & (16), respectively.
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withdraw as counsel.2 Following our review, we grant counsel’s petition to 

withdraw and affirm Appellant’s judgment of sentence. 

Appellant’s convictions arose following a controlled drug buy on April 

28, 2014, at which time he sold heroin to a confidential informant (CI). The 

trial court summarized the relevant facts pertaining to the encounter as 

follows: 

At [Appellant’s] trial, the jury was presented with evidence 

of the circumstances of the controlled buy as well as the 

procedures employed by the Pennsylvania State Police. In this 

case, the CI contacted [Appellant] about purchasing heroin and 

the parties agreed to meet at a local Sheetz convenience store. 

The CI arrived as a passenger in an unmarked vehicle driven by 

Pennsylvania State Trooper Rebecca Fabich. [Appellant] entered 

the backseat of the vehicle and directed Trooper Fabich to drive 

to the Maple Street Apartments, an apartment complex located 

approximately one mile away. Upon arrival at the apartment 

complex, [Appellant] exited the vehicle and then returned 

approximately five minutes later. Once [Appellant] was back in 

the vehicle, he handed the CI ten stamp bags of heroin in 

exchange for $100.00. Trooper Fabich was present in the 

vehicle with the CI throughout the entire transaction.

During Trooper Fabich’s testimony, the jury also heard how 

both the CI’s person and the unmarked vehicle are searched at 

the Pennsylvania State Police barracks immediately before and 

after the buy. A Pennsylvania State Police forensic scientist then 

proceeded to explain how the stamp bags were analyzed and 

testified that all ten bags were positively identified as containing 

heroin. 

Trial Court Opinion, filed January 24, 2017, at 1-2. 

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2 Anders set forth the requirements for counsel to withdraw from 

representation on direct appeal, and our Supreme Court applied Anders in 

Santiago. 
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On November 2, 2016, Appellant was sentenced to two (2) years to 

five (5) years’ incarceration for his PWID conviction, and he received no 

further penalty for the possession of a controlled substance conviction as the 

crimes merged for sentencing purposes. Although Appellant did not file a 

post-sentence motion, he filed a timely notice of appeal on November 23, 

2016. On November 29, 2016, the trial court directed Appellant to file a 

concise statement of matters complained of on appeal. Appellant complied 

and filed the same on December 16, 2016, wherein he challenged the weight 

of the evidence presented at trial. The trial court filed its Rule 1925(a) 

Opinion on January 24, 2017. 

On March 8, 2017, counsel filed her Anders Brief and Petition for 

Leave to Withdraw as Counsel. Appellant has filed no further submissions 

either pro se or through privately-retained counsel. The Commonwealth 

filed a brief with this Court on April 10, 2017. 

Prior to addressing the question raised on appeal, we must first 

resolve counsel's petition to withdraw. Commonwealth v. Goodwin, 928 

A.2d 287, 290 (Pa.Super. 2007) (en banc). See also Commonwealth v. 

Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating 

“[w]hen faced with a purported Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.”). There are procedural and briefing requirements imposed upon 
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an attorney who seeks to withdraw on appeal pursuant to which 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. 

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en 

banc) (citation omitted). In addition, our Supreme Court in Santiago stated 

that an 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 led to the 

conclusion that the appeal is frivolous.

Santiago, supra at 178-79, 978 A.2d at 361. Counsel also must provide 

the appellant with a copy of the Anders brief, together with a letter that 

advises the appellant of his or her right to “(1) retain new counsel to pursue 

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the 

appellant deems worthy of the court's attention in addition to the points 

raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928 

A.2d 349, 353 (Pa.Super. 2007) (citation omitted). Substantial compliance 
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with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 

1287, 1290 (Pa.Super. 2007).

Herein, counsel contemporaneously filed her Petition for Leave to 

Withdraw as Counsel and Anders Brief. In her Petition, counsel states that 

after a careful and conscientious examination of the record she has 

determined that an appeal herein is wholly frivolous. See Petition for Leave 

to Withdraw at ¶ 2. The Petition further explains that counsel notified 

Appellant of the withdrawal request and forwarded a copy of the Anders

Brief to Appellant together with a letter explaining his right to proceed pro se

or with new, privately-retained counsel to raise any additional points or 

arguments that Appellant believed had merit. See id. at ¶ 4; see also

attached Letter to Appellant. The notice letter indicates that a copy of the 

Petition to Withdraw as Counsel and Anders Brief were served on Appellant 

and correctly informs Appellant of his rights. 

In the Anders brief, counsel provides a detailed summary of the facts 

and procedural history of the case with citations to the record, refers to 

evidence of record that might arguably support the issue raised on appeal

challenging the weight of the evidence, provides citations to relevant case 

law, and states her reasoning and conclusion that the appeal is wholly 

frivolous. See Anders Brief at 4-10. Accordingly, counsel has complied with 

all of the technical requirements of Anders and Santiago. As Appellant 

filed neither a pro se brief nor a counseled brief with new, privately-retained 
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counsel, we proceed to examine the issue of arguable merit identified in the 

Anders Brief. Therein, counsel presents the following Statement of 

Questions Involved: “Was the verdict of guilty of Delivery of a Controlled 

Substance-.29 grams of Heroin (F) and Possession of a Controlled 

Substance- .29 grams of Heroin (M) against the weight of the evidence 

presented by the Commonwealth at trial?” Anders Brief at 4. 

Before we reach the merits of Appellant’s claim, we must first 

determine whether he has properly preserved it for our review. It is wellestablished that a challenge to the weight of the evidence must first be 

raised at the trial level (1) orally, on the record, at any time before 

sentencing; (2) by written motion at any time before sentencing; or (3) in a 

post-sentence motion. In re J.B., 630 Pa. 124, 160, 106 A.3d 76, 97 

(2014). As noted in the comment to Pa.R.Crim.P. 607, the purpose of the 

Rule is to clarify that a challenge to the weight of the evidence must be 

raised with the trial judge or it will be waived, for appellate review of a 

weight claim is limited to a review of the trial court’s discretion. See

Pa.R.Crim.P. comment. 

Generally, a claim challenging the weight of the evidence cannot be 

raised for the first time in a Pa.R.A.P. 1925(b) statement, and an appellant's 

failure to avail himself of any of the prescribed methods for presenting a 

weight of the evidence issue to the trial court constitutes waiver of that 
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claim, even if the trial court responds to the claim in its Rule 1925(a) 

opinion. Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013).

Instantly, Appellant failed to challenge the weight of the evidence 

before the trial court orally or in writing prior to sentencing or by written 

motion after sentencing. See Pa.R.Crim.P. 607(A); Griffin, supra. Rather, 

Appellant raised his weight claim for the first time in his Rule 1925(b) 

statement. Thus, his challenge to the weight of the evidence on appeal is 

waived. See Pa.R.Crim.P. 607; In re J.B., supra; Griffin, supra.

Petition to withdraw as counsel granted. Judgment of sentence 

affirmed.3

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2017

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3 This Court may affirm the trial court’s order on any valid basis. Plasticert, 

Inc. v. Westfield Ins Co., 923 A.2d 489 (Pa.Super. 2007).