Com. v. Mercado, R. ( 2022 )

J-S35004-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REYNALDO MERCADO :
:
Appellant : No. 428 MDA 2021
Appeal from the Judgment of Sentence Entered November 19, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004049-2018
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 11, 2022
Appellant, Reynaldo Mercado, appeals from the judgment of sentence
entered on November 19, 2020, as made final by the denial of his
post-sentence motions on March 19, 2021. In this direct appeal, Appellant's
counsel filed a petition for leave to withdraw and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant's counsel
has complied with the procedural requirements necessary to withdraw.
Nevertheless, after independently reviewing the record, we cannot conclude,
for the reasons explained more fully below, that the appeal is wholly frivolous.
We therefore deny counsel's petition to withdraw and direct counsel to file an
advocate’s brief.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S35004-21
This case arose out of the fatal stabbing of Fred Boote which occurred
during the early morning hours of September 14, 2018 at his residence located
in Wilkes-Barre, Luzerne County, Pennsylvania. At the conclusion of trial on
November 18, 2020, a jury found Appellant guilty of first-degree murder,
second-degree murder, third-degree murder, burglary, robbery, criminal
conspiracy to commit robbery, theft by unlawful taking or disposition, arson,
criminal conspiracy to commit arson, abuse of a corpse, and tampering with
or fabricating physical evidence.1 On November 19, 2020, the court imposed
an aggregate sentence of life imprisonment plus 32 to 64 years’ incarceration.2
Appellant filed a post-sentence motion on November 24, 2020. That
motion was denied on March 19, 2021. Appellant then filed his notice of
appeal on April 7, 2021. The trial court directed Appellant to file a concise
statement pursuant to Pa.R.A.P. 1925(b) and Appellant timely complied with
____________________________________________
118 Pa.C.S.A. §§ 2502(a), 2502(b), 2502(c), 3502(a)(1)(i), 3701(a)(1)(i),
903(a) and 3701(a)(1)(i), 3921(a), 3301(a)(1)(ii), 903(a) and 3301(a)(1)(ii),
5510, and 4910(1), respectively.
2 For sentencing purposes, the trial court merged Appellant’s second- and
third-degree murder convictions with his conviction for first-degree murder.
In addition, the court imposed consecutive sentences of 72 to 144 months for
burglary, 96 to 192 months for robbery, 72 to 144 months for criminal
conspiracy to commit robbery, 72 to 144 months for arson, 60 to 120 months
for criminal conspiracy to commit arson, 12 to 24 months for abuse of corpse,
and a concurrent term of 6 to 12 months for tampering with or fabricating
physical evidence. The court imposed a $100.00 fine for theft by unlawful
taking or disposition. All of the non-homicide offenses fall within the standard
range of the sentencing guidelines. Appellant received credit for serving 796
days of incarceration prior to sentencing. See Trial Court Opinion, 6/4/21, at
3 (unpaginated).
-2-
J-S35004-21
the court’s order on April 27, 2021. The trial court issued its Rule 1925(a)
opinion on June 4, 2021.
“In order to withdraw from appellate representation pursuant to
Anders, certain procedural and substantive requirements must be met.”
Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017).
Procedurally, counsel 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.
Id. at 359. Substantively, counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel's conclusion that the appeal is frivolous; and (4) state[s]
counsel's reasons for concluding that the appeal is frivolous.
Commonwealth v. Hankerson, 118 A.3d 415, 419–420 (Pa. Super. 2015),
quoting Santiago, 978 A.2d at 361.
In this case, counsel has complied with Anders' procedural and
substantive requirements.3 “Therefore, we now have the responsibility ‘to
make a full examination of the proceedings and make an independent
____________________________________________
3 Appellant has not responded to counsel’s petition to withdraw.
-3-
J-S35004-21
judgment to decide whether the appeal is in fact wholly frivolous.’”
Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016).
The Anders brief filed by Appellant's counsel raises two issues. The
first issue asserts that the Commonwealth failed to introduce sufficient
evidence to establish that Appellant committed first-degree murder,
second-degree murder, burglary, robbery, conspiracy to commit robbery,
theft by unlawful taking or disposition, arson, abuse of corpse, and tampering
with physical evidence. The second issue asserts that the trial court abused
its discretion by imposing consecutive, rather concurrent, sentences. Counsel
concludes that, based upon his review of the notes of testimony and applicable
case law, these challenges lack merit and are wholly frivolous.
We are unable to assess the claims raised in the Anders brief as our
independent review has uncovered a non-frivolous issue in this appeal. See
Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa. Super. 2007) (“if
there are non-frivolous issues, [Superior Court] will deny the petition [to
withdraw] and remand for the filing of an advocate's brief”). Here, the jury
found Appellant guilty of criminal conspiracy to commit robbery and criminal
conspiracy to commit arson. At sentencing, the trial court imposed separate
punishments for each conspiracy conviction.
The conspiracy statute provides that, “[i]f a person conspires to commit
a number of crimes, he is guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or [a] continuous conspiratorial
-4-
J-S35004-21
relationship.” 18 Pa.C.S.A. § 903(c). In determining whether a particular case
involves one or more conspiracies, we consider several factors.
The factors most commonly considered in a totality of the
circumstances analysis of the single vs. multiple conspiracies issue
... are: the number of overt acts in common; the overlap of
personnel; the time period during which the alleged acts took
place; the similarity in methods of operation; the locations in
which the alleged acts took place; the extent to which the
purported conspiracies share a common objective; and, the
degree to which interdependence is needed for the overall
operation to succeed.
Commonwealth v. Savage, 566 A.2d 272, 278 (Pa. Super. 1989). If a
defendant establishes that multiple crimes were the object of the same
agreement or a continuous conspiratorial relationship, he cannot be punished
separately for multiple conspiracy convictions since multiple sentences under
such circumstances are precluded by statute. See Commonwealth v. Davis,
704 A.2d 650, 654-655 (Pa. Super. 1997), appeal denied, 719 A.2d 744 (Pa.
1998), cert. denied, 525 U.S. 1026 (1998).
In finding that sufficient evidence supported Appellant’s conviction for
conspiracy to commit robbery, the trial court observed that Appellant and
another individual agreed to rob the victim by taking or exercising control over
his personal property and that the victim was killed during the theft. In
addition, the court found sufficient evidence to support Appellant’s conviction
for conspiracy to commit arson because, shortly after the theft and the killing
occurred, Appellant and the same individual agreed to use gasoline to burn
the victim’s body and his residence. Under these circumstances, a
-5-
J-S35004-21
non-frivolous issue emerges as to whether the robbery of the victim and the
burning of his body and residence were the object of a single agreement or
part of a continuous conspiratorial relationship. As appellate review of this
issue would benefit from adversarial input by the parties, we direct counsel
for Appellant to file an advocate’s brief. Appellant’s brief shall be filed within
30 days of the date of this memorandum. Appellee, the Commonwealth, shall
file its brief within 30 days after service of Appellant’s brief. Appellant may
file a reply brief within 14 days after service of Appellee’s brief.
Petition to withdraw as counsel denied. Counsel directed to file an
advocate’s brief in accordance with instructions. Jurisdiction retained.
-6-