Com. v. Sanches, R.

J-S05020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAFAEL R. SANCHES, JR., :
:
Appellant : No. 855 WDA 2014
Appeal from the Judgment of Sentence Entered April 15, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0001914-2013.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 18, 2015
Appellant, Rafael R. Sanches, Jr., pro se, appeals from the judgment
of sentence entered in the Court of Common Pleas of Erie County. For the
reasons that follow, we remand with instructions.
The trial court summarized the factual and procedural history of this
case as follows:
On or about March 22, 2013, a Confidential Informant
(“CI”) provided information to the City of Erie police that there
was going to be a delivery of 10.6 pounds of marijuana to the
CI’s home at 823 Washington Place in Erie later that same day.
According to the CI, Appellant and a co-conspirator, Ricardo
Melendez-Angulo, were to deliver the marijuana. Appellant
would be driving a blue Chevrolet Impala.
The police set up surveillance and observed Appellant drive
a blue Impala to the rear of the CI’s residence. Ricardo
Melendez-Angulo, who owned the vehicle, was in the passenger
seat.
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The vehicle was seized and towed to the Erie Police
Department. A search warrant was obtained and the vehicle was
searched with the aid of a drug-sniffing dog. In the trunk of the
vehicle, the police found a garbage bag containing a box of
sandwich bags, a box of one-gallon zip-lock bags, a digital scale
and eleven one-gallon bags each containing approximately ten
and one-half pounds of marijuana, with a street value of
$24,600 to $49,208.
Appellant was charged with one count each of Criminal
Conspiracy (to commit Possession with Intent to Deliver
Marijuana); Possession with Intent to Deliver; Possession of a
Controlled Substance; Possession of Drug Paraphernalia; and
Criminal Use of Communication Facility (use of cell phone to
arrange a drug delivery).1 Criminal Information, July 23, 2013.
1
18 Pa.C.S.A. §903/35 P.S. §780-113(a)(30); 35
P.S. §780-113(a)(30); 35 P.S. §780-113(a)(16); 35
P.S. §780(a)(32); and 18 Pa.C.S.A. §7512(a),
respectively. It is noted the original sentencing
Order erroneously listed Count 1 as Possession with
Intent to Deliver. The sentencing Order was
corrected to reflect Count 1 is Criminal Conspiracy
(to commit Possession with Intent to Deliver).
On September 9, 2013, Appellant filed a Petition for Writ of
Habeas Corpus alleging the Commonwealth did not establish a
prima facie case as all relevant information the police received
was from the CI who did not testify at the preliminary hearing.
The only Commonwealth witnesses were two police officers
whose testimony was based solely on hearsay. After a hearing
on October 1, 2013, Judge Connelly denied the Petition for Writ
of Habeas Corpus by Order dated October 4, 2013.
Appellant filed an Omnibus Motion for Pretrial Relief
seeking to suppress the evidence. After a hearing, Judge
Connelly denied the motion to suppress the evidence by Opinion
and Order dated November 26, 2013.
Appellant and the Commonwealth entered into a
negotiated plea agreement whereby Appellant would plead guilty
to all five counts. In return, the Commonwealth would reduce
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the weight of the marijuana to 9.9 pounds for sentencing and
waive the mandatory minimum at Count Two, Possession with
Intent to Deliver. Appellant pled guilty to the five counts on
January 15, 2014. Appellant was sentenced on April 15, 2014 as
follows:
Count One: 15 to 30 months of incarceration
concurrent with Docket Numbers
1271/1272 of 1998 (Lehigh
County);
Count Two: 15 to 30 months of incarceration
consecutive to Count One;
Count Three: Merged with Count 2;
Count Four: 12 months of probation concurrent
with Count 5; and
Count Five: 36 months of probation
consecutive to Count 2.
On April 23, [2014], Appellant filed a Motion to
Modify/Reconsider Sentence seeking to have the sentence at
Count Two imposed concurrently rather than consecutively. The
Motion to Modify was denied by Order on April 23, 2014.
Appellant timely filed a Notice of Appeal on May 22, 2014, and a
Concise Statement of Matters/Errors Complained of on Appeal on
June 3, 2014.
Trial Court Opinion, 7/3/14, at 1-3.
Appellant presents the following issues for review:
I. Did the court err or abuse its discretion when it determined
that the CI’s reliability was further enhanced by his admission,
against interest, as to his recent involvement in a drug delivery
taking into consideration the fact that the CI never gave past
reliable information;[]only cooperated with police once they
served a search warrant on his residence; and the specific
information from the CI was not corroborated by an
actual,[]controlled buy of drugs?
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II. Did the court err or abuse its discretion when it denied
[A]ppellant’s application to suppress all the physical [evidence]
which was found in the car taking into consideration the fact that
law enforcement officers in this case completely ignored the
need to apply for an anticipatory search warrant although the
facts present a textbook example of a case in which such a
warrant would be appropriate; and where the Affidavit of
Probable Cause is further silent as to the reliability of the CI?
III. Did the court err or abuse its discretion by not merging
Count 1,[]Criminal Conspiracy (to commit possession with intent
to Deliver) with Count 2, Possession with Intent to Deliver for
sentencing purposes?
IV. Did the court err or abuse its discretion by determining
that the Commonwealth established a prima facie case because
all relevant information the police received was from the CI who
did not testify at the preliminary hearing taking into
consideration the fact that the only Commonwealth witnesses
were two police officers whose testimony was based solely on
unreliable hearsay information supplied by the CI?
Appellant’s Brief at 4.
Before addressing the merits of Appellant’s claims, we first note that it
has seemed to escape the combined attention of the Commonwealth and the
trial court that Appellant was denied his constitutional right to counsel on
direct appeal. See Commonwealth v. Kent, 797 A.2d 978, 980 (Pa.
Super. 2002) (citing Douglas v. California, 372 U.S. 353 (1963) (“It is
fundamental that an accused has a constitutional right to counsel on direct
appeal.”); Pa.R.Crim.P. 122(B)(2) (assignment of counsel “effective until
final judgment, including any proceedings on direct appeal”). See also
Smith v. Com., Pennsylvania Bd. Of Probation and Parole, 574 A.2d
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558, 563 (Pa. 1990) (stating: “Both the federal and state constitutions
guarantee an indigent the right to have counsel appointed for the purpose of
appealing a criminal conviction”). In fact, in summarizing the procedural
and factual history of this case, the trial court makes no mention of
appointed counsel being permitted to withdraw or Appellant’s pro se filings.
Because it is relevant to our analysis, we set forth the following
additional procedural history in the case sub judice. Appellant was
represented by appointed counsel through trial and sentencing. Following
sentencing, Appellant filed a pro se pleading on April 21, 2014, seeking
modification or reconsideration of his sentence. The clerk of courts
forwarded the pro se pleading to appointed counsel, Eric Hackwelder. Letter
to Attorney Hackwelder from Clerk of Courts, 4/21/14, at 1. On April 23,
2014, appointed counsel filed a motion for reconsideration of sentence on
Appellant’s behalf. Motion to modify/reconsider sentence, 4/23/14, at 1-2.
On that same date, Attorney Hackwelder filed a motion to withdraw as
counsel. Motion to withdraw as counsel, 4/23/14, at 1-2.
By order entered April 24, 2014, the trial court denied Appellant’s
motion to modify or reconsider his sentence. Trial court order, 4/24/14, at
1. On April 25, 2014, the trial court entered an order granting
Attorney Hackwelder’s motion to withdraw. Trial court order, 4/25/14, at 1.
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The certified record includes a notice of appeal from the April 23, 2014
order, filed by Appellant, pro se. The notice of appeal, however, does not
indicate the date of mailing, nor does it bear any time stamps. The docket
reflects a filing date of May 22, 2014 for the notice of appeal. The record
also includes a “petition for continuation of informa pauperis status for
purposes of appeal”, filed pro se by Appellant.1 In that petition, Appellant
states that he cannot afford an attorney and identifies his right to the
assistance of counsel in the preparation of the appeal. Petition for
continuation of in forma pauperis status for purposes of appeal, 5/22/14, at
2.
By order entered May 22, 2014, the trial court acknowledged receipt of
Appellant’s notice of appeal and ordered Appellant to file a Pa.R.A.P. 1925(b)
statement. Trial court order, 5/22/14, at 1. In that order, the trial court
also granted Appellant’s request to proceed in forma pauperis. Appellant,
pro se, filed a Pa.R.A.P. 1925(b) statement.
As set forth above, after Attorney Hackwelder was permitted to
withdraw as counsel, Appellant filed a pro se notice of appeal. Although
Appellant was entitled to counsel on this direct appeal, Kent, 797 A.2d at
980, there is no indication in the record that the trial court appointed
1
The docket entries reflect a filing date of May 22, 2014 for this document
also.
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counsel for Appellant. Indeed, Appellant continued to proceed with the
appeal, pro se.
As a result of the violation of Appellant’s right to counsel, we remand
for appointment of appellate counsel. Counsel is directed to file a Pa.R.A.P.
1925(b) statement within thirty days of appointment. The trial court shall
then prepare and file a Pa.R.A.P. 1925(a) opinion within forty-five days of
the filing of the 1925(b) statement. Thereafter, the record shall be returned
to this Court. Appellant shall file a brief within thirty days of the filing of the
Pa.R.A.P. 1925(a) opinion. The Commonwealth shall have thirty days to
respond.
Case remanded with instructions. Panel jurisdiction retained.
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