Com. v. Kelly, T.
1375 EDA 2015
| Pa. Super. Ct. | Dec 5, 2016Background
- On Aug. 9, 2011, Officer Robinson surveilled Ruscomb Street and observed Terrance Kelly engage in two brief hand-to-hand exchanges in which buyers handed Kelly money and Kelly retrieved small objects from his waistband.
- A blue BMW involved in the second exchange was stopped seconds later; officers recovered illegal drugs in a baggie similar to one later found on Kelly.
- Kelly was arrested after entering a nearby Chinese take-out; a search of his person yielded a clear zip-top baggie of marijuana and $280.00; no drug-use paraphernalia was found.
- Kelly was charged with PWID (possession with intent to deliver), possession, and small‑amount marijuana; the suppression motion was denied in 2012.
- At a 2015 jury trial the Commonwealth proceeded on the PWID count; Kelly was convicted and sentenced Apr. 24, 2015 to 9–23 months’ incarceration plus three years’ probation.
- Appellate counsel filed an Anders/Santiago brief and petition to withdraw; the Superior Court reviewed the record, found the appeal frivolous, granted withdrawal, and affirmed the judgment of sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for PWID | Commonwealth: Officer’s eyewitness testimony of two hand‑to‑hand sales, matching baggie and currency, and lack of paraphernalia support inference of intent to deliver | Kelly: Evidence insufficient to prove intent to deliver beyond a reasonable doubt | Held: Evidence sufficient; circumstantial proof and officer observations supported PWID conviction |
| Denial of suppression motion (probable cause to arrest/search) | Commonwealth: Officer’s observations and totality of circumstances (experienced drug‑interdiction officer, observed sales, corroborating traffic stop) established probable cause | Kelly: Arrest/search unlawful; suppression should have been granted | Held: Denial affirmed; trial court’s factual findings supported probable cause and were properly applied legally |
| Legality of sentence | Commonwealth: Sentence within statutory bounds for recidivist PWID | Kelly: Sentence illegal (challenged as exceeding statutory limits) | Held: Sentence legal; 9–23 months well below 10‑year statutory maximum for recidivist PWID |
| Counsel’s Anders withdrawal | N/A: Court must ensure Anders/Santiago requirements met and independently review record for non‑frivolous issues | Kelly: (implicitly) may have wished to pursue additional issues | Held: Counsel complied with procedural requirements; independent review found no meritorious issues; withdrawal granted and judgment affirmed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (standards for counsel withdrawal on direct appeal)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (Pennsylvania requirements for Anders brief content)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (procedural mandates for counsel seeking to withdraw)
- Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011) (sufficiency-of-evidence standard)
- Commonwealth v. Dixon, 997 A.2d 368 (Pa. Super. 2010) (probable-cause standard in drug interdiction contexts)
- Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007) (facts supporting inference of intent to deliver)
- Commonwealth v. Sanford, 863 A.2d 428 (Pa. 2004) (sufficiency reviewed on full trial record; remedy for improperly admitted evidence is new trial)