Com. v. Nazario, M.

J-S10003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARC ANTHONY NAZARIO :
:
Appellant : No. 1170 MDA 2021
Appeal from the Judgment of Sentence Entered August 6, 2021
In the Court of Common Pleas of Lancaster County
Criminal Division at CP-36-CR-0003135-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED APRIL 21, 2022
Marc Anthony Nazario (Appellant) appeals from the judgment of
sentence imposed after a jury convicted him of burglary and theft.1
Contemporaneous with this appeal, Appellant’s counsel filed a petition to
withdraw from representation and Anders brief.2 After thorough review, we
grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3502(a)(1) and 3921(a).
2See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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In the early morning hours of July 8, 2020, Appellant entered a rooming
house on Frederick Street in Lancaster, Pennsylvania, and burglarized the
residence. N.T., 7/12/21, at 59, 82-83. Eric Snyder (Snyder), who resided
in the basement, was sleeping. Id. at 59. Snyder woke abruptly and saw a
figure come halfway down the stairs and turn back. Id. Snyder went back to
sleep, but later that morning, went to the main floor and noticed that a door
which was usually locked, was ajar. Id. at 62-63. Luis Silva (the Victim),
who resided on the top floor, told Snyder that items were stolen from the
Victim’s room. Id. at 59-60, 63.
The Victim worked as a security guard. Id. at 104-05. When he woke
on July 8, 2020, he realized several items were missing: two envelopes
containing a total $2,500.00 in cash, his cellphone, a pair of shoes, alcohol,
and cigars. Id. 111-12. The Victim was also missing work-related items he
had stored in cases in his room. Id. at 108. The items included a tactical
vest, a Taser, and a PepperBall gun. Id. at 87-88, 107. The Victim had not
given anyone permission to enter his room or remove his belongings. Id. at
110.
The Victim contacted police, who eventually found Appellant’s
fingerprints on the cases in the Victim’s room. Id. at 90-92, 146-49. Police
also recovered the Taser and PepperBall gun, which Appellant had discarded
on Frederick Street. Id. at 94.
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At trial, Appellant testified he previously rented a room in the house.
Id. at 160. Appellant explained that the evening before the burglary, he
encountered Snyder, who invited Appellant to his room to smoke marijuana.
Id. at 161. Ultimately, Snyder asked Appellant to leave, and Appellant went
upstairs to the Victim’s room and stole his belongings. Id. at 163. Appellant
testified he discarded the Taser and PepperBall gun when he discovered they
were not what he was “hoping” for. Id. at 165. Appellant admitted he lied to
police during questioning. Id. at 164-65.
On July 13, 2021, a jury convicted Appellant of burglary and theft. N.T.,
7/13/21, at 231-32. On August 5, 2021, with the benefit of a Pre-Sentence
Investigation Report (PSI), the trial court sentenced Appellant for burglary to
5 - 10 years in prison. N.T., 8/5/21, at 4, 21-22. For theft, the court
sentenced Appellant to a concurrent 1 - 2 years in prison. Id. at 21-22. The
court further ordered that the burglary sentence be served consecutive to
Appellant’s sentence in an unrelated matter. Id. at 22. The next day, the
court determined Appellant’s conviction for theft should have merged with his
conviction for burglary; the court vacated the August 5, 2021 sentence and
resentenced Appellant accordingly. Id. at 21; N.T., 8/6/21, at 2. The court
modified the sentence, merging the theft charge with the burglary charge, but
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otherwise imposed the same aggregate sentence of 5 – 10 years of
incarceration. N.T. 8/6/21 at 5-7. This appeal followed.3
Counsel presents a single question:
Should appellate counsel be granted leave to withdraw as counsel
because any appellate issues in the instant case are frivolous?
Anders Brief at 7.
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any of
the substantive issues raised on appeal. See Commonwealth v. Bennett,
124 A.3d 327, 330 (Pa. Super. 2015). To withdraw pursuant to Anders,
“counsel must file a brief that meets the requirements established by our
Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014)
(parallel citation omitted). Specifically, the Anders brief 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;
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3 On September 7, 2021, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal; on September 28, 2021, counsel
submitted a statement of intent to file an Anders brief pursuant to Pa.R.A.P.
1925(c)(4). On October 12, 2021, the trial court issued an order stating that
because of counsel’s intent to file an Anders brief, it would “take no further
action unless otherwise directed by the Superior Court of Pennsylvania.”
Order, 10/12/21 (footnote omitted). By correspondence to this Court dated
January 18, 2022, the Commonwealth advised it would not file a response
brief.
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(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. (citation omitted).
Our review reveals counsel has substantially complied with the
requirements outlined in Anders and its progeny. Specifically, counsel
determined the appeal is “wholly frivolous,” filed an Anders brief pursuant to
the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),
furnished a copy of the Anders brief to Appellant, and advised Appellant of
his right to raise any additional issues and retain new counsel or proceed pro
se. See Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super.
2013) (en banc); Application for Leave to Withdraw as Counsel, 1/14/22, at
1-4 (unnumbered). Our review also reveals Appellant did not file a response
to the Anders brief. Accordingly, we examine any issues counsel identifies in
the Anders brief, and conduct “a full examination of all the proceedings, to
decide whether the case is wholly frivolous.” Commonwealth v. Yorgey,
188 A.3d 1190, 1195 (Pa. Super. 2018) (en banc).
Appellant contends trial counsel was ineffective. See Anders Brief at
11-12. This claim is premature.
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In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the
Pennsylvania Supreme Court reaffirmed the general rule set forth in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that “claims of
ineffective assistance of counsel are to be deferred to PCRA review; trial courts
should not entertain claims of ineffectiveness upon post-verdict motions; and
such claims should not be reviewed upon direct appeal.” Holmes, 79 A.3d at
576. Our Supreme Court recently reiterated, “the PCRA provides the exclusive
remedy for post-conviction claims seeking restoration of appellate rights due
to counsel’s failure to perfect a direct appeal.” Commonwealth v. Koehler,
229 A.3d 915, 930 (Pa. 2020) (citation omitted). Accordingly, Appellant’s
ineffective assistance of counsel claim must await collateral review.
Appellant next avers the trial court erred in denying his requested jury
charge that criminal trespass is a lesser included offense of burglary. Anders
Brief at 12-14; N.T., 7/12/21, at 119-20. The record shows the
Commonwealth objected to this request, and after discussion, the trial court
concluded trespass was not a lesser included offense of burglary; Appellant’s
counsel agreed. Id. at 119-20, 168-69. Thus, Appellant waived this claim.
See Commonwealth v. Wholaver, 989 A.2d 883, 892 (Pa. 2010) (challenge
to failure to give requested jury charge waived where counsel withdrew
request and did not object to charge as given).
Furthermore:
In reviewing a jury charge, we determine whether the trial court
committed a clear abuse of discretion or an error of law which
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controlled the outcome of the case. We must view the charge as
a whole; the trial court is free to use its own form of expression
in creating the charge. Our key inquiry is whether the instruction
on a particular issue adequately, accurately and clearly presents
the law to the jury, and is sufficient to guide the jury in its
deliberations. Moreover,
it is well-settled that the trial court has wide discretion
in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the
parties, and its refusal to give a requested charge
does not require reversal unless the appellant was
prejudiced by that refusal.
Commonwealth v. Wise, 171 A.3d 784, 787-88 (Pa. Super. 2017) (citations,
quotation marks, and brackets omitted).
In Commonwealth v. Harris, 663 A.2d 238 (Pa. Super. 1995), this
Court held that “[c]riminal trespass is not a lesser included offense of
burglary.” Id. at 240 (citations omitted). “Knowledge is not an element of
the crime of burglary, and thus, one defending against a burglary charge
would have no reason to establish that (albeit falsely), he believed his
presence in a building or occupied structure was privileged or licensed.” Id.(citations omitted). Thus, as counsel acknowledged at trial, Appellant was not
entitled to the requested jury charge. Id.; N.T., 7/12/21, at 168-69.
Appellant also contends the evidence was insufficient to sustain his
burglary and theft convictions. Anders Brief at 14-16. Appellant does not
specify the basis for this contention. Id.We have explained:
The determination of whether sufficient evidence exists to support
the verdict is a question of law; accordingly, our standard of
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review is de novo and our scope of review is plenary. In assessing
[a] sufficiency challenge, we must determine whether viewing all
the evidence admitted at trial in the light most favorable to the
[Commonwealth], there is sufficient evidence to enable the
factfinder to find every element of the crime beyond a reasonable
doubt. [T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
... [T]he finder of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to
believe all, part[,] or none of the evidence.
Commonwealth v. Edwards, 177 A.3d 963, 969-70 (Pa. Super. 2018)
(quotation marks and citations omitted).
The Crimes Code defines burglary as follows:
(a) Offense defined.-A person commits the offense of burglary
if, with the intent to commit a crime therein, the person:
(1) (i) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the
offense any person is present;
(ii) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the
offense any person is present.
18 Pa.C.S.A. §§ 3502(a)(1)(i) and (ii).
“A person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, movable property of another with intent to deprive him thereof.”
18 Pa.C.S.A. § 3921(a). To be convicted of theft, a defendant must have had
a conscious intention to take unlawfully the property of another. See
Commonwealth v. Wilkes, 676 A.2d 266, 268 (Pa. Super. 1996).
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Viewing the evidence in the light most favorable to the Commonwealth,
the record demonstrates Appellant previously resided at the residence, which
was an occupied dwelling not open to the public. N.T., 7/12/21, at 110, 160.
On July 8, 2020, Appellant was not licensed or privileged to enter the dwelling.
Id. In the early morning, Snyder saw someone come halfway down the stairs
to his room and retreat; that same morning, the Victim discovered several
items missing from his room. Id. at 51, 112. Appellant’s fingerprints were
found on the cases where the Victim stored some of the missing items. Id.
at 127, 150. Also, Appellant admitted he entered the Victim’s room and took
the items. Id. at 163.
The evidence was sufficient to support Appellant’s convictions. See
Commonwealth v. Pettyjohn, 64 A.3d 1072, 1078 (Pa. Super. 2013)
(evidence sufficient to sustain convictions for burglary and theft where
Appellant’s fingerprints were found on point of entry to private home and
owner testified Appellant was not privileged to be in location);
Commonwealth v. Donohue, 62 A.3d 1033, 1036 (Pa. Super. 2013) (“if the
[finger]prints are discovered in a place accessible only by force or on objects
that the defendant could not have contacted under legitimate circumstances,
a conviction [for burglary and theft] will be upheld.” (citations omitted)).
Finally, Appellant challenges the discretionary aspects of his sentence.
Anders Brief at 16-18. However, as counsel correctly observes, Appellant
waived this claim, and the issue is frivolous. Id.-9-
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A challenge to the discretionary aspects of sentence is not absolute, and
“must be considered a petition for permission to appeal.” Commonwealth
v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citations omitted). To reach
the merits of a claim, this Court must determine:
(1) whether the appeal is timely; (2) whether [the defendant]
preserved [the] issue; (3) whether [the defendant’s] brief includes
a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013)
(citation omitted). “[I]ssues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by presenting the claim
to the trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.” Cartrette, 83
A.3d at 1042.
Appellant did not file a post-sentence motion challenging either his
original or modified sentence. See Pa.R.Crim.P. 720(A)(1); see also
Commonwealth v. Broadie, 289 A.2d 218, 220 (Pa. Super. 1985).
Accordingly, he waived a challenge to the discretionary aspects of his
sentence.4
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4 Moreover, any challenge lacks merit. While the court sentenced Appellant
in the aggravated range of the guidelines, the record demonstrates the court
had the benefit of a PSI. N.T., 8/5/21, at 4. The trial court additionally
detailed its reasons for sentencing Appellant in the aggravated range. See
(Footnote Continued Next Page)
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To the extent Appellant challenges the legality of his sentence, the claim
lacks merit. Anders Brief at 18-19. As noted above, the trial court sua sponte
corrected Appellant’s original illegal sentence on August 6, 2021, when it
merged theft with burglary. N.T., 8/6/21, at 2, 5-7. The maximum sentence
for burglary is 20 years. See 18 Pa.C.S.A. §§ 1103(1) and 3502(c)(1).
Appellant’s sentence of 5 - 10 years does not exceed the statutory maximum
and is legal.
Lastly, in accordance with Yorgey, supra, we independently reviewed
the certified record to determine if counsel’s analysis regarding the frivolous
nature of this appeal is correct. Because we agree with counsel’s assessment,
we affirm the judgment of sentence and grant counsel’s petition to withdraw.
Petition to withdraw as counsel granted. Judgment of sentence affirmed.
Judge Colins joins the memorandum.
Judge McLaughlin concurs in the result.
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id. at 13-20. These reasons included Appellant’s extensive juvenile record,
the failure of prior attempts at rehabilitation, lack of remorse, prior convictions
and/or adjudications for the same or similar offenses, Appellant being on
probation when he committed the instant crimes, and his recent sentencing
for several other unrelated charges. See id.; see also Commonwealth v.
Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (sentence not manifestly
unreasonable where court considered PSI, details of crime, and explained
reasons for sentence); see also Commonwealth v. Walls, 926 A.2d 957,
966-68 (Pa. 2007) (no abuse of discretion where court imposed reasonable,
individualized sentence).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2022
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