Com. v. Daiz, H. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOPOLITO DAIZ :
:
Appellant : No. 881 EDA 2022
Appeal from the Judgment of Sentence Entered March 3, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002651-2019
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED OCTOBER 16, 2023
Hopolito Daiz1 (Appellant) appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas after his non-jury
convictions of possession of a controlled substance, possession with intent to
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1 Appellant’s notice of appeal lists his last name as “Diaz.” See Appellant’s
Notice of Appeal, 3/22/22. However, the trial court docket, sentencing order,
and Pa.R.A.P. 1925(a) opinion spell Appellant’s name “Daiz.” See Criminal
Docket CP-51-CR-0002651-2019, at 1; Order, 3/3/22; Trial Ct. Op., 5/27/22,
at 1. At sentencing proceedings, Appellant stated his “real name” was
“Derranco” and in his brief, counsel refers to Appellant as “Mr. Barranco.” See
N.T. Sentencing, 3/3/22, at 4; Anders Brief at 1.
Pennsylvania Rule of Appellate Procedure 904(b)(1) states that “[t]he
parties shall be stated in the caption as they appeared on the record of the
trial court at the time the appeal was taken.” See Pa.R.A.P. 904(b)(1).
Accordingly, we refer to Appellant as “Hopolito Daiz,” which is the name that
appears on the trial court’s docket.
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distribute (PWID) — heroin and fentanyl, and conspiracy to commit PWID.2
Contemporaneous with this appeal, Appellant’s counsel, Evan T.L. Hughes,
Esquire, has filed a petition to withdraw from representation and an Anders
brief.3 The Anders brief presents a claim that challenges the weight of the
evidence. For the reasons below, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
We glean the underlying facts of this matter from the trial court’s
opinion:
On January 24, 2019, [Philadelphia Police] Officer Ryan
Flynn . . . was leading the surveillance for the illegal sale of
narcotics on the 2900 block of A Street, in . . . Philadelphia[,
Pennsylvania]. At approximately 3 :45 p.m., Officer Flynn
observed Kenneth Rodriguez . . . exit the target location of [a
home on] North A Street and proceed down the street to a park.
Once in the park, [ ] Rodriguez approached Appellant’s co-
defendant, Irizarry Rosato . . . and handed [ ] Rosato several blue
bundles[.] Rodriguez then returned to the target location [on]
North A Street.
Following the interaction with [ ] Rodriguez, [ ] Rosato
approached Appellant and engaged in a brief conversation. Officer
Flynn observed, from about [45] feet away, [ ] Rosato hand off
the blue bundles to Appellant. At that point, Appellant unzipped
the front of his pants, placed the blue bundles inside his pants,
and rezipped the front of his pants. Shortly thereafter, [ ] Rosato
returned to the park down the street.
Trial Ct. Op. at 2 (record citations omitted).
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2 35 P.S. §§ 780-113(a)(16), (30); 18 Pa.C.S. § 903(c).
3 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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Officer Flynn then witnessed two separate hand-to-hand transactions
between Appellant and another person. See Trial Ct. Op. at 2-3. Each time,
Appellant “engaged in a brief conversation” with the individual, that person
handed Appellant “an unknown amount” of money, and in exchange Appellant
retrieved a “blue bundle” of packets from his pants and handed some to the
individual. Id. Both individuals who Appellant interacted with were stopped
by officers after they left Appellant’s presence. The officers recovered
“packets stamped [with] Gucci” from each of their persons. Id.After Appellant’s interaction with [the second buyer], Officer
Flynn saw Appellant walk to the park where [ ] Rosato was located.
Appellant approached [ ] Rosato and gave him an unknown
amount of [money.] Rosato then proceeded to the target location
[on] North A Street, where he was met by [ ] Rodriguez exiting
the house. [ ] Rosato handed off the [money] received from
Appellant to [ ] Rodriguez in exchange for several blue bundles,
at which point [ ] Rodriguez retreated into [the home on] North A
Street and closed the door. [ ] Rosato returned to the park, where
he handed the blue bundles to Appellant. After receiving the blue
bundles from [ ] Rosato, Appellant proceeded to his original
location on the west side of the block, about [45] feet from where
Officer Flynn was stationed.
Id. at 3 (record citations omitted).
Officer Flynn then witnessed Appellant take part in two additional
transactions that were identical to the ones described above. See Trial Ct.
Op. at 3-4. Police stopped each of those individuals after they walked away
from Appellant and recovered multiple “packets stamped [with] Gucci” from
their persons. Id. at 3-4. After police recovered this evidence, Officer Flynn
radioed other officers to secure a search warrant for the house on North A
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Street, and stop Appellant and Rosato. Id. at 4. Upon stopping Appellant,
officers recovered $40 from his person. Id.
While executing a search warrant on the North A Street house, officers
found
[480] dollars of United States currency . . . sitting on top of a
dresser. Inside this same dresser, three . . . bundles with a total
of [48] clear blue ziplock packets stamped with the word Bugati
were recovered. Inside each packet was a powder substance
believed to be heroin laced with fentanyl.
[Police also found 17] bundles with a total of [272] clear
blue ziplock packets stamped with the word Gucci . . . inside of a
container of rice found in the kitchen. Again, inside each packet
was a powder substance believed to be heroin laced with fentanyl.
All of the narcotics recovered as a result of the surveillance
were placed on individual property receipts and submitted to the
chemistry lab for testing. Said narcotics tested positive for heroin
and fentanyl.
Trial Ct. Op. at 4-5 (record citations omitted & paragraph breaks added).
Appellant was subsequently charged with possession of a controlled
substance, PWID, and conspiracy. This matter proceeded to a one-day non-
jury trial on September 29, 2021. The Commonwealth presented evidence as
summarized above and Appellant testified on his own behalf. He stated that
on January 24, 2019, he stopped at a corner store on North A Street after
attending a suboxone program. N.T. Trial, 9/29/21, at 49-50. After exiting
the store, he spoke to people outside and told them he was leaving. Id. at
50. He claims the police then stopped him and arrested him. Id. Appellant
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insisted that he “didn’t have anything to do with any of this” and the police
mistook him for another person who “looked exactly like” him. Id. at 50-51.
At the conclusion of the proceedings, the trial court found Appellant
guilty of the above-mentioned charges. On March 3, 2021, the court imposed
an aggregate sentence of five to ten years’ incarceration. Appellant did not
lodge any objections during the hearing, nor did he file any post-sentence
motions.4 Appellant filed this timely appeal and complied with the court’s
order to file a concise statement of matters complained of on appeal pursuant
to Pa.R.A.P. 1925(b). In his Rule 1925(b) statement, Appellant raised the
following claim:
Were [A]ppellant’s convictions against the clear weight of the
evidence presented at trial?
Appellant’s Statement of Matters Complained of On Appeal, 4/11/22, at 1. We
note that Attorney Hughes does not provide a “Questions Presented” section
in the Anders Brief, but indicates Appellant’s purported claim challenges “the
weight of the evidence presented at trial[.]” See Pa.R.A.P. 2111(a)(4)
(Appellate briefs shall include a statement of questions presented); Anders
Brief at 2 (unpaginated).
When, as here, counsel files a petition to withdraw and accompanying
Anders brief, we must first examine the request to withdraw before
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4 Though he did not file a post-sentence motion, Appellant indicated at his
sentencing hearing he wished to file both a post-sentence motion and an
appeal. See N.T. Sentencing, 3/3/22, at 17-18.
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addressing any of the substantive issues raised on appeal. Commonwealth
v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to
withdraw from representation on appeal 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). Pursuant to Santiago, counsel must also:
(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., quoting Santiago, 978 A.2d at 361.
Before addressing the contents of Attorney Hughes Anders brief and
accompanying petition to withdraw, we note that on June 6, 2022, Attorney
Hughes erroneously filed an application to withdraw as counsel and an
accompanying “No Merit/Finley Letter” pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). On June 28, 2022, this Court denied the
application by a per curiam order, noting the requirements set forth in Turner
and Finley apply when counsel seeks leave to withdraw their appearance
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during Post Conviction Relief Act (PCRA)5 proceedings as opposed to a direct
appeal. Order, 6/28/22. Instead, Attorney Hughes was required to file an
application pursuant to Anders and Santiago. Accordingly, this Court
directed him to file an Anders brief or an advocate’s brief within 30 days of
the order. Id. Attorney Hughes failed to comply within the 30-day period,
and this Court issued a second per curiam order again directing him to submit
the appropriate filings within 14 days. Order, 9/15/22. The order notified
Attorney Hughes that failure to do so would result in remand to the trial court
for proceedings to determine if he abandoned Appellant. Id. Attorney
Hughes, again, did not comply and this matter was remanded for further
proceedings. Order, 10/21/22.
On November 2, 2022, the trial court issued findings regarding Attorney
Hughes’ status as Appellant’s counsel. It stated that after a hearing on
October 27th, Attorney Hughes confirmed he was representing Appellant and
indicated he filed a request with this Court for an extension of time to file a
brief. See Trial Court’s Finding[s] on Status of Counsel and Filing of
Appellant’s Brief, 11/2/22, at 1. This Court’s docket reveals that Attorney
Hughes filed a request for an extension of time on the same day as the
hearing, October 27, 2022. Thereafter, we granted Attorney Hughes’ request
— allowing him until November 28th to submit his brief — and he filed an
Anders brief and accompanying application to withdraw as counsel one day
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5 42 Pa.C.S. §§ 9541-9546.
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late, on November 29th. See Order, 11/7/22; see also Anders Brief;
Application to Withdraw, 11/29/22 (unpaginated).
On December 12, 2022, this Court issued a per curiam order notifying
Attorney Hughes that he failed to comply with the requirements of Anders
and Santiago when he did not attach to his petition a copy of his letter to
Appellant informing him of his right to retain new counsel, proceed pro se, or
raise any additional claims before this Court. See Order, 12/12/22. We
directed counsel to provide our Prothonotary’s office with copies of the letter
within 14 days of the order, but he again failed to do so. See id. On January
20, 2023, we directed counsel to comply with the December 12, 2022, order
within seven days. See Order, 1/20/23. On February 21st — more than 30
days later — Attorney Hughes supplied copies of his letter to Appellant to this
Court.
Returning to counsel’s present petition, Attorney Hughes’ filings
substantially comply with the requirements of Anders and Santiago. See
Cartrette, 83 A.3d at 1032. However, we point out that counsel’s application
to withdraw erroneously states he found Appellant’s purported claim on appeal
to be “meritless” as opposed to “frivolous.” See Cartrette, 83 A.3d at 1032;
Santiago, 978 A.2d at 361; Application to Withdraw, at 1. We remind counsel
that the correct standard required to withdraw from representing a client on
direct appeal is a determination that the appeal is frivolous. See Cartrette,
83 A.3d at 1032; Santiago, 978 A.2d at 361. The two terms are not
synonymous. See Commonwealth v. Hipps, 274 A.3d 1263, 1271 n.3 (Pa.
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Super. 2022) (“Frivolousness and meritlessness are distinct concepts.
[F]rivolousness is a slightly higher standard than lack of merit; an argument
may be meritless, but not frivolous.”) (citations & quotation marks omitted);
Commonwealth v. Smith, 700 A.2d 1301, 1305 n.10 (Pa. Super. 1997)
(“[A]n appeal is frivolous where it lacks any basis in law or fact.”) (citation &
quotation marks omitted).
Nevertheless, while Attorney Hughes used the incorrect term in his
application to withdraw, we can surmise from the supporting argument and
law cited in his Anders brief that counsel ultimately concluded Appellant’s
claim was frivolous. Anders Brief at 2-4 (unpaginated). Thus, we accept his
application and conclude it substantially meets the requirements of Anders
and Santiago. Further, counsel has provided this Court with a copy of the
letter he sent to Appellant, advising him of his right to proceed pro se or retain
private counsel, and to raise any additional claims. See Attorney Hughes’
letter to Appellant, 12/30/22. Appellant did not file a response. Thus, we
may proceed to address the substantive claim presented on appeal.
As mentioned above, the Anders brief raises one claim for our review
— that Appellant’s convictions were against the weight of the evidence
presented at trial. Anders Brief at 2 (unpaginated). Appellant avers,
generally, that at the time of his arrest, police only recovered 40 dollars from
his person and none of the “blue bundles” Officer Flynn described. Id. at 4.
He insists that because “he was not found to have indicia of criminality on his
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person at the time of arrest[,]” his conviction cannot stand. Id. at 3. No
relief is due.
Upon review of the record, we conclude Appellant has waived this claim
when he did not raise it prior to sentencing or in a post-sentence motion. See
Pa.R.Crim.P. 607(A)(1)-(3) (weight claims must be preserved in the trial court
by oral or written motion before sentencing or in a post-sentence motion);
Commonwealth v. Cox, 231 A.3d 1011, 1018 (Pa. Super. 2020) (weight
claims cannot be raised for the first time on appeal).
Additionally, the trial court concluded Appellant also waived this
challenge because he “failed to provide any specific reason as to why the
verdicts were contrary to the weight of the evidence in his [Rule] 1925(b)
Statement.” See Trial Ct. Op. at 6. As mentioned above, Appellant generally
asserted his convictions were “against the clear weight of the evidence
presented at trial.” Appellant’s Statement of Matters Complained of On
Appeal, at 1. Appellant was convicted of three crimes — possession of a
controlled substance, PWID, and conspiracy — but he did not specify which
convictions, or elements thereof, he intended to challenge. For this reason,
as well, Appellant’s claim is waived. See Commonwealth v. Juray, 275 A.3d
1037, 1048 (Pa. Super. 2022) (a challenge to the weight of the evidence is
waived when the defendant’s Rule 1925(b) statement does not state with
specificity the convictions or elements he wishes to dispute on appeal).
Further, we emphasize:
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A boiler[ ]plate motion, either that “the evidence was insufficient
to support the verdict,” or that “the verdict was against the weight
of the evidence,” is not a "precise statement of issues and grounds
relied upon.” Such assignments of error not only do not “foster”
but discourage “alert and zealous advocacy,” for anyone may
make them without giving thought to what the issues really are.
Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa. Super. 2020) (citation
omitted). “Such specificity is of particular importance in cases where[ a
defendant] was convicted of multiple crimes, each of which contains elements
that the Commonwealth must prove beyond a reasonable doubt.” Id. at 496
(citation omitted). As Appellant has waived his weight challenge, we are
precluded from reviewing this claim on its merits.6
In any event, had Appellant preserved this claim, we would affirm on
the well-reasoned basis of the trial court’s opinion. Trial Ct. Op. at 7-8
(concluding: (1) Officer Flynn’s “extremely detailed testimony” — wherein he
described Appellant taking part in four hand-to-hand drug transactions — was
credible; and (2) this evidence supported the verdict, and thus, Appellant’s
claim is meritless).
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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6 Attorney Hughes does not acknowledge that the weight claim is waived in
the Anders Brief.
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Date: 10/16/2023
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