Com. v. Carroll, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REGINALD CARROLL :
:
Appellant : No. 2687 EDA 2018
Appeal from the Judgment of Sentence Entered August 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001941-2017
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MAY 26, 2020
Reginald Carroll appeals from his August 24, 2018 judgment of sentence
of ten to twenty years of imprisonment, imposed after he was found guilty of
conspiracy to commit kidnapping. Appellant’s counsel has filed a petition to
withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Appellant filed
several pro se responses. We grant counsel’s petition to withdraw, and affirm.
The trial court summarized the facts as follows:
On January 30, 2017, during late afternoon[,] Agent Louis
Schmidt of the Drug Enforcement Agency of the Federal
Government was conducting an investigation in the area of a
Metro PCS Cell Phone store situated on Frankford Avenue in
Philadelphia when he observed Appellant and his three co-
defendants exit the store and enter a red Jeep Cherokee. When
the Jeep drove away, the agent followed the vehicle to Erie
Avenue but lost it in traffic. Upon losing visual contact with the
vehicle, the agent contacted Officer Torres of the Philadelphia
Police Department’s Narcotics Enforcement Team so that Officer
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Torres could advise other police personnel of what the agent had
just observed. At the time, the agent was using a video camera
and recorded the defendants leaving the store and entering the
Jeep.
Agent Schmidt also informed Philadelphia Police Sergeant Wali
Shabazz, assigned to the 25th District’s Narcotics Enforcement
Team, about what he had observed and that he thought that there
was a good chance that a woman was going to be kidnapped.
Based upon that information, Sgt. Shabazz and members of his
team proceeded to the 2400 block of Aramingo Avenue, the
location of a shopping plaza, where the sergeant had two
members of his team watch the store in which the alleged victim
worked. While driving around the lot, the sergeant saw a red Jeep
that matched a description of the vehicle mentioned by Agent
Schmidt driving in the parking lot of the shopping center and a
black male later identified as [Appellant], who had been described
by the agent. He informed the officers conducting the surveillance
of the store about what he observed and left the lot to avoid the
suspects from identifying his vehicle as a police vehicle.
Sergeant Shabazz drove a couple of blocks away and parked his
car. While there, he received a radio call from the officers
conducting the surveillance advising him that a woman had been
grabbed by two men who forced her into a silver Toyota. The
sergeant drove to the shopping center and he and other officers
unsuccessfully attempted to box in the Jeep and the Toyota, when
they were driven in different directions once they left the parking
lot. Sergeant Shabazz pursued the Toyota, which crashed a
couple of blocks from the shopping center. Upon crashing,
[Appellant] and [Michael Cruz] exited the Toyota and fled. The
sergeant proceeded to the vehicle and had contact with the
woman who had been abducted as other officers pursued the two
males who ran from the Toyota. [Appellant], who was depicted in
a video recorded at the scene of the vehicle crash running from
the vehicle, was apprehended a short time thereafter and brought
over to the Toyota.
After the Toyota crashed, Agent Schmidt was informed that the
Jeep was stopped on Aramingo Avenue and that a female, later
identified as Crystal Reyes, the complainant herein, had been
grabbed by persons earlier observed in the Jeep and placed in
another car in the parking lot. The agent immediately drove to
Lehigh Avenue and Thompson Street and learned that police were
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searching for defendants. At some point, he had contact with
[Appellant] who said, essentially, that he had not done anything.
The agent showed [Appellant] a photograph of himself which the
agent had copied from the video he recorded earlier that day.
In January of 2017, Ms. Reyes, who, at the time knew each of the
defendants, worked at a dental office located in the shopping mall
at 2400 Aramingo Avenue. On January 31, 2017, Ms. Reyes was
at work and noticed a burgundy Jeep driving back and forth
outside the dental office. When Ms. Reyes left work that day at
about 7:45 p.m., she observed a male wearing clothes that
covered him from head to toe walking toward her and another
male wearing gray clothing that also covered his entire body get
out of the Jeep and approach her. She also saw the Jeep she had
seen earlier in the day parked outside another store. The two
males forced Ms. Reyes to get into her car, a silver Toyota that
belonged to her paramour, at which time the males, who . . . were
in phone contact with Torres and who w[ere] giving them
directions, took Ms. Reyes’[s] cell phone and purse and told Ms.
Reyes to be quiet and cooperate with them because they had her
children. One of the males then began driving the Toyota but
almost immediately police vehicles drove up to the Jeep and Ms.
Reyes’[s] vehicle and unsuccessfully attempted to box in the Jeep,
which was occupied by Torres and co-defendant Rodriguez, and
the Toyota containing Ms. Reyes and the two other males. After
a short pursuit the car containing Ms. Reyes crashed and the two
men inside it fled. Police came up to the car and directed Ms.
Reyes to stay inside it. Other officers chased after [Appellant] and
[Cruz] and [Appellant] was apprehended shortly thereafter
following a short pursuit but Cruz avoided apprehension.
Philadelphia Police Officers John Logan and his partner pursued
the Jeep, which co-defendant Rodriguez was driving and in which
Torres was a passenger. However, the officers lost sight of the
Jeep in traffic and later found it abandoned in the 3000 block of
Livingston Street. During the pursuit, which continued for about
fifty blocks, co-defendant Rodriguez committed numerous traffic
violations.
Shortly after the Toyota crashed, the police brought [Appellant]
to Ms. Reyes and in Sergeant Shabazz’s presence, she identified
[Appellant] as being the male who was wearing the gray sweater
when she was abducted and who forced her into the Toyota.
Subsequent thereto, Ms. Reyes was interviewed by police and told
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them about what happened to her when she left work. During the
interview, she identified photographs depicting co-defendants
Torres and Rodriguez.
On February 1, 2017, police interviewed Ms. Reyes. During [the
interview] she indicated that after the car crashed, she began
driving the car and threw a gun into a flowerpot that [Appellant]
left in the Jeep when he fled. She also identified a photograph of
[Cruz]. She added that after giving her first statement to police
she told her paramour about the gun she hid in the flowerpot and
that he retrieved and ultimately brought [it] to the police. She
also stated that [Appellant] showed her a gun when he and [Cruz]
accosted her and that [Cruz] was the person who took her purse
and cell phone from her.
Mr. Elin Gonzalez-Ramirez was working as a cab driver the
evening when the incident herein occurred. At about 8:15 p.m.,
he went to 1100 Belgrade Street in Philadelphia, which was near
where the Jeep was found, and picked up Torres and Rodriguez
and drove them to the 4000 block of I Street in Philadelphia.
Authorities also recovered a video from inside a bar near where
the Jeep was located. It depicted Torres and Rodriguez together
inside the bar.
A search of the Jeep resulted in the recovery of a driver’s license
in the name of Tashira Marie Rodriguez and a vehicle registration
that indicated that the Jeep was registered to someone with the
same name. They also recovered some photographs depicting
Torres and Rodriguez and an unknown prison inmate and another
depicting [Cruz] with the same inmate. Four empty cell phone
boxes and purchase receipts connected thereto, which showed
that the phones had been purchased on January 31, 2017, were
also seized. Police later matched cell phones found by police on
the night of the incident and inside of a residence in the 3900
block of I Street to two of the empty boxes found inside the Jeep.
One of the receipts listed Rodriguez as a purchaser and another
the complainant, Crystal Reyes.
Philadelphia Police Officer John Seigafuse was one of the officers
who participated in the surveillance conducted at the shopping
plaza on Aramingo Avenue. While so engaged, he saw the red
Jeep and observed [Appellant] exiting from it. He also saw
[Appellant] engage in a phone call and then enter a store following
which he saw [Appellant] sit on the back of a truck and then take
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a gun out of his pocket, approached a female, and put her into a
car. He then observed the unsuccessful attempt to box in the Jeep
and the Toyota after which he proceeded to the location where the
Toyota crashed where he witnessed Ms. Reyes identify
[Appellant].
Following the collection of the videos and other evidence, police
obtained arrest warrants for [Cruz], Torres, and Rodriguez.
Torres and Rodriguez were arrested together inside of a residence
in the 3900 block of I Street.
Trial Court Opinion, 3653 EDA 2018, 6/26/19, at 2-7 (footnotes and citations
to record omitted).1
Appellant was charged with robbery of a motor vehicle, conspiracy to
commit robbery of a motor vehicle, kidnapping, conspiracy to commit
kidnapping, numerous firearms charges, unlawful restraint, and terroristic
threats. On May 30, 2018, following a six-day trial, the jury found Appellant
guilty of conspiracy to commit kidnapping to inflict terror only. On August 24,
2018, he was sentenced to a term of ten to twenty years of incarceration.
Appellant filed a post-sentence motion in which he challenged his
sentence as unreasonable and alleged that the verdict was against the weight
of the evidence. The motion was denied on September 12, 2018. Appellant
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1 The trial court did not author an opinion in the case sub judice. See
Commonwealth v. McBride, 95 A.2d 752, 758 (Pa.Super. 2008) (explaining
that no trial court opinion is required in response to Rule 1925(c)(4)
statement). However, it authored an opinion in the appeal of Appellant’s co-
defendant Michael Cruz at No. 3653 EDA 2018, which is also assigned to this
panel.
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timely appealed, and counsel filed a Rule 1925(c)(4) statement indicating that
he intended to file an Anders brief, and petitioned to withdraw as counsel.
Counsel filed an Anders brief discussing issues that Appellant wanted
to pursue, and concluded further that no other issues could reasonably support
the appeal. He provided a summary of the facts and procedural history,
referred to portions of the record that arguably support the appeal, stated his
conclusion, and provided Appellant with copies of his petition and brief.
Appellant filed two pro se responses to counsel’s Anders brief. In his first
response, he alleged that appellate counsel was ineffective in failing to
investigate other viable appellate issues. In addition, he asked this Court to
direct counsel to provide him with notes of testimony and documents that
would enable him to file an additional response to counsel’s petition. He also
asked this Court to remand the case to the trial court for the filing of a new
Rule 1925(b) concise statement, as he maintained counsel did not present
proper argument, and a Grazier hearing to determine if he was capable of
representing himself. By order of August 26, 2019, this Court denied
Appellant’s request for a remand for a Grazier hearing and a new Rule
1925(b) statement, but directed counsel to provide Appellant with the notes
of testimony and relevant documents. Appellant was also advised that his
“failure to file a pro se or counseled response may be considered as a waiver
of his right to present his issues to this Court.” Order, 8/26/19.
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On October 21, 2019, Appellant filed a motion for an extension of time,
pleading therein that counsel had not provided him with full and complete
discovery, and thus, he was unable to fully assess the issues raised on appeal.
His motion was granted in part. He was given an additional thirty days in
which to file a pro se or counseled response. He incorporated therein his first
response, and reserved the right to file a brief addressing the matters that
counsel identified in the Anders brief. Appellant also renewed his request for
discovery documents, which was denied without prejudice to raise the issue
in his brief.
On December 9, 2019, Appellant filed an additional response to the
Anders brief. Appellant complained that counsel failed to present proper
arguments in regard to the issues raised in the Anders brief. Additional
Response to Anders Brief, 12/10/19. By order dated December 10, 2019,
this Court denied counsel’s motion to withdraw.
Before us is a situation similar to the one in Commonwealth v.
Bennett, 124 A.3d 327, 333 (Pa.Super. 2015), where counsel files an Anders
brief and the appellant files a pro se or counseled response. We outlined in
Bennett the proper procedure in such cases. First, we determine whether
counsel fulfilled the dictates of Anders/Santiago, and if so, we address the
issues raised in the Anders brief. We also conduct an independent
examination of the record as to those issues. If we find the issues meritless,
we next examine Appellant’s pro se allegations. As to the latter, we do not
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conduct an independent review of the record as Appellant’s pro se
response/brief is treated as an advocate’s brief.
We turn first to the counsel’s petition to withdraw and Anders brief.
Counsel must comply with the following procedures.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof . . . .
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.
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 either to 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 non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007).
Counsel filed the required petition averring that, after a conscientious
review of the record, he found the appeal to be wholly frivolous. He filed an
Anders brief discussing issues that Appellant wanted to pursue, and
concluded further that no other issues could reasonably support the appeal.
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He provided Appellant with copies of his petition and brief, and advised
Appellant that Appellant could retain new counsel or proceed pro se, and raise
any additional arguments. Thus, counsel complied with the technical Anders
requirements.
In Santiago, our High Court further clarified the Anders procedure:
[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 statues on point that have led
to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
After conducting our review of counsel’s Anders brief, we find that
counsel has substantially complied with the additional Santiago
requirements. Counsel represented that he had reviewed the entire record.
He provided a summary of the facts and procedural history, referred to
portions of the record that arguably support the appeal, stated his conclusion
that the appeal is frivolous, and cited authority in support thereof. In addition,
counsel apprised Appellant of his right to proceed pro se or retain another
attorney.
Preliminarily, we will review the issues presented by counsel in the
Anders brief. Then, we will review the subsequent pro se filing as we do any
advocate’s brief. Bennett, supra at 333.
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Counsel identified four issues that Appellant sought to raise on appeal:
1. The verdicts were against the weight of the evidence because the
testimony presented by the Commonwealth was perjurious,
contradictory, inconsistent, and wholly unworthy of belief so much so
that the verdict shocks the conscience.
2. The indictment charging Appellant was defective in that it did not
adequately advise Appellant of the crimes with which he was
charged.
3. Appellant was denied of his right to confront his accusers because
the Commonwealth did not call as a witness the police officer who
was informed by the DEA agent of the activities of Appellant and his
co-defendants’ [sic].
4. The sentence was unreasonable in light of all of the circumstances
presented.
Anders brief at 16, 19, 22, 26.
The standard in reviewing a weight of the evidence claim is well settled:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict is
against the weight of the evidence. Because the trial judge has had
the opportunity to hear and see the evidence presented, an appellate
court will give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the evidence.
One of the least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be granted in
the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and
citations omitted).
The trial court denied relief to Appellant on his weight claim. Although
we do not have the benefit of an opinion providing the court’s reasoning, the
record reveals the following. Much of the evidence at trial consisted of the
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testimony of Complainant and law enforcement officers who witnessed the
criminal activity. In addition, there was video footage corroborating the
testimony of those witnesses, and which the jury found inculpated Appellant.
We agree with counsel that, “given the overwhelming and credible evidence
presented by the Commonwealth[,] it is clear that present counsel’s
conclusion that raising a weight claim would be wholly frivolous is supported
by the record.” Anders brief at 18.
Appellant’s claim that the indictment was defective fares no better. The
charging document was a bill of information, not an indictment. Appellant did
not object below to any lack of specificity or irregularities in the information.
Hence, the issue is waived. See Commonwealth v. Strunk, 953 A.2d
577,580 (Pa.Super. 2008) (“One must object to errors, improprieties or
irregularities at the earliest possible stage of the criminal. . . adjudicatory
process, to afford the jurist hearing the case the first occasion to remedy the
wrong and possibly avoid an unnecessary appeal to complain of the matter.”);
see also Pa.R.A.P. 302(a) (“Issues not raised in the trial court cannot be
raised for the first time on appeal.”). “Having been waived, pursuing this
matter on direct appeal is frivolous.” Commonwealth v. Kalichak, 943 A.2d
285, 291 (Pa.Super. 2008).
Appellant’s claim that he was denied a fair trial because he was not
afforded the opportunity to confront Narcotics Officer Torres, the officer whom
Agent Louis Schmidt contacted after he observed defendants, is wholly lacking
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in merit. Agent Schmidt testified that he received information from Officer
Torres while he was in the process of searching for defendant after losing sight
of him when he sped away in the Toyota. N.T., 5/23/18, 13-17. He did not
testify as to what Officer Torres told him. The Commonwealth chose not to
call Officer Torres, as was its prerogative. Thus, Appellant was not deprived
of the right to confront a witness who testified against him. See Crawford
v. Washington, 541 U.S. 36, 51-52 (2004); Commonwealth v. Yohe, 79
A.3d 520, 531 & n.10 (Pa. 2013). More importantly, Appellant did not raise
this issue at trial, and thus, it is waived. See Pa.R.A.P. 302(a). We agree
with counsel that the issue is wholly frivolous. See Kalichak, supra at 291.
Finally, Appellant complains that his sentence is unreasonable, which
presents a challenge to discretionary aspects of sentence. An appellant is not
entitled to the review of challenges to the discretionary aspects of a sentence
as of right. Rather, an appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction.” Commonwealth v. Samuel,
102 A.3d 1001, 1006-07 (Pa.Super. 2014). Counsel maintains that Appellant
failed to invoke this Court’s jurisdiction to hear his discretionary sentencing
claim.
In determining whether an appellant has invoked our jurisdiction, we
consider four factors:
whether appellant has filed a timely notice of appeal; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant's brief has a
fatal defect; and (4) whether there is a substantial question that the
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sentence appealed from is not appropriate under the Sentencing
Code.
Id.Appellant filed both a timely post-sentence motion and a notice of
appeal. In his motion, Appellant alleged that his sentence was unreasonable.
He also raised this issue in his concise statement of errors complained of on
appeal. In addition, the Anders brief contains the required Pa.R.A.P. 2119(f)
statement. Therefore, Appellant properly preserved this issue and we now
proceed to determine whether Appellant has raised a substantial
question. Id.Appellant’s claim is that his sentence was unreasonable in light of all the
circumstances presented. Counsel maintains that a substantial question
cannot be raised on appeal because the failure to consider a factor does not
raise a substantial question and because Appellant’s post-sentence motion
failed to specify what circumstances warranted a shorter sentence. Anders
brief at 24-25. Counsel relies upon Commonwealth v. Hornaman, 920 A.2d
1282, 1284 (Pa.Super. 2007), in which this Court held that general assertions
that a sentence is “unreasonable” or “excessive” do not establish a substantial
question. In short, counsel submits that he is unable to present a non-
frivolous discretionary sentencing claim because Appellant’s post-sentence
motion failed to state why or what underlying circumstances rendered the
sentence unreasonable. Id. at 26.
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Counsel represents further that, even if Appellant had raised a
substantial question, in his view the court did not commit an abuse of
discretion in imposing sentence as it reviewed the pre-sentence investigation
report, the mental health evaluation, and considered Appellant’s mother’s
testimony and Appellant’s allocution prior to imposing sentence. Counsel does
note, however, that although the sentencing court characterized the sentence
as a standard range sentence, the sentence exceeded the standard range.
However, counsel stated he could not challenge the imposition of such a
sentence on the basis that the trial court failed to provide sufficient reasons
for exceeding the recommended guideline sentence as that issue was not
presented to the trial court at sentencing or in a post-sentence motion.
Anders brief at 28 n.8 (citing Malovich, supra at 1251 (“To preserve an
attack on the discretionary aspects of [a] sentence, an appellant must raise
his issues at sentencing or in a post-sentence motion.”). Hence, counsel
maintains that it would be fruitless to pursue that issue on appeal.
We agree with counsel’s analysis. See Commonwealth v. Titus, 816
A.2d 251, 255-56 (Pa.Super. 2003) (concluding defendant did not present a
substantial question for review where claim was “a bald allegation of
excessiveness and [did] not raise any challenge in the claim itself or in the
brief as to a violation of the Sentencing Code or a particular fundamental norm
underlying the sentencing process”). Furthermore, Appellant did not preserve
below any claim that the trial court did not state its reasons on the record for
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imposing a sentence above the standard range. Moreover, we have reviewed
the transcript of the sentencing proceeding. The trial court sufficiently stated
on the record in Appellant’s presence his reasons for the sentence imposed.
See Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (the
requirement that the sentencing court file a statement of reasons for
sentencing outside the guidelines is satisfied when the judge states his
reasons for the sentence on the record in the presence of the defendant).
Accordingly, we agree with counsel that this discretionary sentencing claim
presented in the Anders brief is wholly frivolous.
We turn now to the issues raised in Appellant’s pro se responses.
Appellant claimed that appellate counsel failed to investigate and discover
additional meritorious arguments to pursue on direct appeal. In addition, he
complained that counsel did not adequately develop and support the issues
raised in the Anders brief. These claims sound in ineffective assistance of
counsel, which are generally deferred to collateral review under
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
Appellant adopts the issues identified by counsel in the Anders brief, but
does not advance any additional argument as to why they warrant relief.
Hence, we find Appellant’s pro se claims unavailing as well. We therefore
grant counsel’s petition to withdraw and affirm the August 24, 2018 judgment
of sentence.
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Petition to withdraw of John Belli, Esquire, granted. Judgment of
sentence affirmed.
Judge King joins the memorandum.
P.J.E. Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2020
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