Com. v. Torres-Olan, S. ( 2019 )

J. S62036/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SANTOS D. TORRES-OLAN, : No. 743 WDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered April 1, 2016,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0001888-2015
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 31, 2019
Santos D. Torres-Olan appeals the April 1, 2016 judgment of sentence
entered in the Court of Common Pleas of Erie County after a jury convicted
him of two counts of terroristic threats and one count each of firearms not to
be carried without a license and possession of firearm with altered
manufacturer’s number.1 The trial court sentenced appellant to an aggregate
term of nine years, seven months to nineteen years, two months of
incarceration. We affirm.
Although the facts giving rise to appellant’s convictions are not germane
to the disposition of this appeal, we note that the convictions stemmed from
an incident that occurred on April 13, 2015 when appellant pointed a gun at
1 18 Pa.C.S.A. §§ 2706(a)(3), 6106(a)(1), and 6110.2(a), respectively.
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the victim’s face and then discharged the firearm at her feet while she stood
on a sidewalk.
The procedural history of this case is atypical. A previous panel of this
court set forth the following:
On April 14, 2015, [a]ppellant was arrested and
charged with, inter alia, the aforementioned
offenses. Attorney Nicole Sloane of the Erie County
Office of the Public Defender was appointed as counsel
to represent [a]ppellant. On September 10, 2015,
Attorney Sloane filed a petition for leave to withdraw
as counsel because [a]ppellant had written letters to
the [trial] court requesting that he be provided with
“adequate” counsel. According to Attorney Sloane,
the letters from [a]ppellant made clear that he was
unhappy with counsel’s performance. In addition,
[a]ppellant indicated that he wished to proceed
pro se should Attorney Sloane be permitted to
withdraw. The trial court conducted a hearing on this
petition on September 28, 2015. After that hearing,
the trial court granted Attorney Sloane leave to
withdraw as counsel. In addition, [a]ppellant
represented to the [trial] court that he intended to
waive his right to counsel and proceed pro se. Thus,
the trial court conducted a colloquy to ensure
[a]ppellant’s waiver of counsel was knowing,
intelligent, and voluntary, and [a]ppellant was
permitted to proceed pro se.
Appellant then requested standby counsel pursuant to
Pa.R.Crim.P. 121(D). That motion was granted, and
on October 19, 2015, Attorney Garrett Taylor was
appointed. Appellant filed numerous pre-trial
motions, all of which were denied.
A jury trial was held on February 12 and 16, 2016,
where [a]ppellant represented himself and
Attorney Taylor participated as standby counsel. On
February 16, 2016, [a]ppellant was found guilty of the
aforementioned charges. On April 1, 2016,
[a]ppellant was sentenced to an aggregate term of
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nine years, seven months to nineteen years, two
months of incarceration. Appellant filed a
post-sentence motion, which was denied without a
hearing. Appellant timely filed a notice of appeal,
which was docketed on April 18, 2016 [at No. 812
WDA 2016].
On April 19, 2016, the trial court directed [a]ppellant
to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925 within 21 days. On
April 22, 2016, [a]ppellant filed a “request for
application for representation by public defender
office to assist [him] in filing an appeal.” On April 27,
2016, [a]ppellant sent a letter to the trial court, which
included, inter alia, a request for “an extension” of
time of thirty days to file his concise statement.
The trial court did not act on either letter sent by
[a]ppellant. On May 27, 2016, the trial court authored
an opinion stating that [a]ppellant has waived all
issues on appeal for his failure to file a concise
statement.[Footnote 1]
[Footnote 1] The trial court acknowledged
that it did not act on [a]ppellant’s request
for an extension of time to file his concise
statement. However, the trial court
suggests that because [a]ppellant never
filed a late statement, “Appellant has
failed to timely comply with the [trial
court’s] order” and all issues are waived
on this basis.
Commonwealth v. Torres-Olan, 161 A.3d 372 (Pa.Super. 2017)
(unpublished memorandum at *1-3) (record citations omitted; some brackets
in original). The previous panel of this court remanded the case to the trial
court and relinquished jurisdiction because the record before it was silent as
to whether appellant’s waiver of his right to trial counsel also included a waiver
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of his right to direct appeal counsel and because the trial court never ruled on
appellant’s request for direct appeal counsel. Id. at *4.
On April 11, 2018, appellant filed a pro se application for relief at
No. 812 WDA 2016, alleging that the trial court held the remand hearing on
March 17, 2017 and appointed Attorney Taylor as direct appeal counsel, but
that Attorney Taylor did not file a direct appeal. On May 8, 2018, this court
entered an order wherein it reassumed jurisdiction over appellant’s appeal
previously docketed at No. 812 WDA 2016 due to a breakdown of operations.
The order also directed Attorney Taylor to file a Pa.R.A.P. 1925(b) statement
and directed the trial court to then file a Rule 1925(a) opinion.
On July 25, 2018, this court entered an order directing Attorney Taylor
to file a brief on appellant’s behalf on or before September 4, 2018. On
July 27, 2018, Attorney Taylor filed a petition to withdraw as counsel. In that
petition, Attorney Taylor alleged that the trial court relieved him of his duties
as court-appointed direct appeal counsel and that the trial court appointed
William Hathaway, Esq., as direct appeal counsel. Attorney Taylor requested
that this court permit him to withdraw and substitute Attorney Hathaway as
appellate counsel. This court denied Attorney Taylor’s request without
prejudice to seek withdrawal in the event that substitute counsel entered an
appearance. On August 20, 2018, Attorney Hathaway filed a praecipe for
appearance with this court. On October 5, 2018, this court entered an order
that dismissed appellant’s appeal at No. 812 WDA 2016 due to counsel’s
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failure to file a brief on appellant’s behalf. On December 17, 2018, appellant
filed a pro se application for relief in which he sought reinstatement of his
appellate rights. By order entered January 3, 2019, this court denied
appellant’s application, but noted that appellant may seek reinstatement of
his appellate rights with the trial court.
By letter dated March 19, 2019, the Honorable Daniel J. Brabender, Jr.,
informed this court that the trial court had recently retired and that
Judge Brabender had been reassigned for the preparation of a Rule 1925(a)
opinion. By order entered April 16, 2019, Judge Brabender reinstated
appellant’s direct appeal rights nunc pro tunc and reappointed
Attorney Hathaway as direct appeal counsel. Attorney Hathaway filed a timely
notice of appeal on appellant’s behalf. The trial court ordered appellant to file
a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied. This appeal is now ripe for our review.
Appellant raises the following issues:2
[1.] Whether the [trial c]ourt committed an abuse of
discretion in allowing the presentation by the
Commonwealth of evidence relating to the
911 call thereby violating the confrontation
clause?
[2.] Whether there was sufficient evidence to sustain
the guilty verdicts because no physical evidence
was offered including the fingerprints or DNA of
[appellant] linking him to the firearm at issue?
2 We have reordered appellant’s issues for ease of disposition.
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[3.] Whether the sentencing guidelines were
compromised in that an offense gravity score
of 5 was employed wherein the offense gravity
score should have been a 2 or at worst a 3?
[4.] Whether all criminal counts should have merged
for purposes of sentencing?
Appellant’s brief at 2.
Appellant first complains that the trial court abused its discretion by
admitting a recording of the victim’s 911 call into evidence. The record,
however, reflects that appellant did not file a motion to suppress this evidence.
The record further reflects that when the Commonwealth moved to admit the
911 call into evidence, the trial court asked appellant if he had any objections,
and appellant answered “no.” (Notes of testimony, 2/12/16 at 45.) Therefore,
appellant waives this issue on appeal for failure to raise it with the trial court.
See Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal”).
Appellant next complains that the evidence was insufficient to sustain
his convictions on the firearms violations because “no physical evidence was
offered including the fingerprints or DNA of [appellant] linking him to the
firearm at issue” and the “remaining circumstantial evidence was
unconvincing.” (Appellant’s brief at 6.) Appellant’s argument on this issue
totals six sentences and fails to cite to or discuss applicable law or to link the
facts of this case to any applicable law. (Appellant’s brief at 6.) Appellant
waives this issue for failure to develop a legal argument. See
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Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super. 2015)
(reiterating that “[t]he failure to develop an adequate argument in an
appellate brief may result in waiver of the claim under Pa.R.A.P. 2119”).
We finally note that a reading of appellant’s six-sentence argument on
this issue reveals that his challenge goes to the weight of the evidence and
not its sufficiency. Again, appellant contends that his convictions cannot stand
because the Commonwealth failed to present forensic evidence linking him to
the firearm and because the circumstantial evidence linking him to the firearm
was “unconvincing.” (Appellant’s brief at 6.) The Commonwealth is not
required to present forensic evidence and may prove every element of a crime
beyond a reasonable doubt by wholly circumstantial evidence.
Commonwealth v. Hewitt, 189 A.3d 1004, 1009 (Pa.Super. 2018).
Moreover, appellant’s claim that the circumstantial evidence linking him to the
firearm was “unconvincing” is directed to witness credibility and, therefore,
challenges the weight, and not the sufficiency, of the evidence. See
Commonwealth v. Kinney, 157 A.3d 968, 972 (Pa.Super. 2017) (restating
that claims directed to witness credibility constitute weight challenges). The
record reflects that appellant failed to raise a weight of the evidence claim
with the trial court in either an oral or written motion for a new trial pursuant
to Pa.R.Crim.P. 607. Therefore, appellant waives any challenge to the weight
of the evidence on appeal. Id. (reiterating that weight challenges not raised
with trial court are waived).
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Appellant next complains that the probation officer who prepared
appellant’s pre-sentence investigation report “abused their discretion” when
generating “two guidelines for each count, predicated on loaded and unloaded,
and deferred to the [trial] court as to which set to apply” because the evidence
was insufficient to show that the firearm was loaded. (Appellant’s brief at 5.)
Our scope of review does not include an inquiry into the probation officer’s
calculation of the sentencing guidelines based upon two different scenarios for
the trial court’s consideration. We nevertheless note that with respect to the
trial court’s application of the sentencing guidelines to appellant’s firearms
convictions at sentencing, the trial court stated:
[t]here was really no factual issue in this case as to
whether the gun was loaded or not, but for purposes
of sentencing, there’[ve] been no separate jury
findings that the guns were loaded. So as to [the
firearms convictions], I’ll apply the guidelines that
involve the unloaded ammunition, which is a break for
you, [appellant].
Notes of testimony, 4/1/16 at 11.
Appellant’s final argument consists of three sentences in which appellant
baldly asserts that all of his convictions should have merged for sentencing
purposes because they “all arose from a single discrete course of conduct
involving the same victim.” (Appellant’s brief at 5.) Appellant waives this
issue for failure to develop a legal argument. See Freeman, 128 A.3d at
1249. Notwithstanding waiver, we note that our supreme court held that
“courts of this Commonwealth [are precluded] from merging sentences for
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two offenses that are based on a single criminal act unless all of the statutory
elements of one of the offenses are included in the statutory elements of the
other.” Commonwealth v. Baldwin, 985 A.2d 830, 837 (Pa. 2009). Here,
the trial court merged appellant’s two convictions for terroristic threats for
sentencing purposes. (Notes of testimony, 4/1/16 at 12.) The firearms
convictions did not merge because even though the offenses were based on a
single criminal act, the statutory elements of one are not included in the
statutory elements of the other.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2019
3 One commits terroristic threats under Section 2706(a)(3) when the person
communicates, directly or indirectly, a threat that causes terror or serious
public inconvenience with reckless disregard of the risk of causing terror or
inconvenience. 18 Pa.C.S.A. § 2706(a)(3); see also Commonwealth v.
Walker, 836 A.2d 999, 1001 (Pa.Super. 2003). In order to convict a
defendant for carrying a firearm without a license under Section 6106(a)(1),
the Commonwealth must prove that the weapon was a firearm; that the
firearm was unlicensed; and that where the firearm was concealed on or about
the person, it was outside his home or place of business. 18 Pa.C.S.A.
§ 6106(a)(1); see also Hewitt, 189 A.3d 1004, 1009 (Pa.Super. 2018). In
order to convict a defendant for possession of a firearm with altered
manufacturer’s number, the Commonwealth must prove that the weapon was
a firearm and that the manufacturer’s number was altered, changed,
removed, or obliterated. Pa.C.S.A. § 6110.2(a).
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