Com. v. Rodriguez, I. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
IRVIN RODRIGUEZ :
:
Appellant : No. 5 MDA 2020
Appeal from the Judgment of Sentence Entered November 25, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001299-2019
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 07, 2020
Irvin Rodriguez appeals from judgment of sentence of twenty-four to
sixty months of imprisonment imposed following his conviction of two counts
of attempted terroristic threats with the intent to terrorize another. Counsel
filed a petition to withdraw from representation and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s petition to withdraw
and affirm.
On August 28 and 29, 2018, while incarcerated at SCI Retreat in Luzerne
County, Appellant authored two threatening emails intended for electronic
transmission to a woman he identified as his girlfriend. N.T. Jury Trial,
10/1/19, at 84. The emails were intercepted by prison officials.
On June 4, 2019, Appellant was charged by criminal information with
two counts of terroristic threats. 18 Pa.C.S. § 2706(a)(1). The information
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was amended at the time of trial to charge criminal attempt to commit
terroristic threats. On July 22, 2019 and August 28, 2019, Appellant refused
to leave the prison for related proceedings.1 Finally, at the call of the list on
September 30, 2019, it was verified by the Sheriff’s office that Appellant
refused to leave his cell for transport to the courthouse for trial.
A trial in absentia commenced before a jury on October 1, 2019.
Appellant’s counsel was present representing his interests. The
Commonwealth’s case consisted of Appellant’s statement that he did indeed
send the emails, and the testimony of Lieutenant Thomas Serbin, a corrections
officer at SCI Retreat for twenty-five years, and Pennsylvania State Police
Corporal Robert Betnar.
Lieutenant Serbin works in the security office of the prison and is
charged with gathering intelligence on staff, gangs, drugs, and any type of
security concern within the prison. See N.T. Trial, 10/1/19, at 55-56. He
explained that inmates are permitted to purchase tablet computers resembling
an iPad, upon which they can play games. When the device is plugged into a
special kiosk, the prisoner can accept and send communications to designated
persons. Id. at 57. Part of Lieutenant Serbin’s job is to review
communications that are sent from the prison. He explained that the policy
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1 On the latter date, the trial court noted that Appellant had refused to leave
his cell and directed: “should the [Appellant] refuse to be transported and be
present for [his] court date, the trial will proceed in his absence” and that all
requests for continuance had to be made in writing ten days prior to the trial
term. No motions were filed seeking a continuance of the October 1, 2019
trial date.
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at that institution with regard to emails provides that electronic
communications can be viewed by staff members and are required to be
reviewed by both the mailroom and the security office.
Commonwealth Exhibits 1 and 2 were emails sent on August 28 and 29,
2018, respectively, that were flagged by the mailroom and sent to Lieutenant
Serbins’s unit for investigation. They were addressed to Mariluz Padilla, a
woman the corrections officer believed to be Appellant’s girlfriend. Lieutenant
Serbin testified that he believed the emails contained a threat of violence. Id.
at 60. The first email stated: “I’m not going to kill you or anything like that.
But I will look forward to either put you on a chair or blow one of your knees
off.” Id. at 62. In the second email, Appellant wrote “Just know that when I
get out I will blow your face off.” Id. at 64. The latter email also contained
a notation in Spanish that was translated as meaning, “Every piglet gets its
Christmas.” Id. at 85. In accordance with prison policy, Lieutenant Serbin
forwarded the emails to the Pennsylvania State Police. Id. The emails were
not transmitted by Appellant to Ms. Padilla, the intended recipient.2
Several weeks later, Lieutenant Serbin met with Corporal Betnar, a
twenty-one year veteran of the Pennsylvania State Police. Corporal Betnar
testified that when he met with the corrections officer he reviewed the emails.
Corporal Betnar then interviewed Appellant on September 24, 2018.
Appellant was willing to speak with the trooper, and after being informed of
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2Corporal Betnar testified that the contents of the emails were shared with
Ms. Pedilla during the course of the investigation.
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his Miranda rights, he executed a Rights Warning and Waiver document.
Commonwealth’s Exhibit 4. After reviewing the emails, Appellant admitted to
the trooper that he sent them to Ms. Padilla. Id. at 84.
It was the Commonwealth’s position at trial that when Appellant typed
out the emails and hit the send button intending to threaten the victim, he
committed an attempt to commit the crime of terroristic threats. The jury
found Appellant guilty of both counts. On November 25, 2019, after the
Sheriff reported that Appellant refused to leave his cell for his scheduled
sentencing, the trial court sentenced him in absentia to an aggregate sentence
of twenty-four to sixty months of imprisonment to run consecutive to any
sentence Appellant was currently serving. No post-sentence motion was filed.
Appellant filed a timely appeal and complied with the trial court’s
Pa.R.A.P. 1925(b) order. The trial court penned its Rule 1925(a) opinion, and
the matter is ripe for our review. Appellant's counsel now files a petition to
withdraw and an accompanying Anders brief, contending that there are no
non-frivolous issues to be reviewed. Counsel addresses the one issue
presented in the Rule 1925(b) concise statement of errors complained of on
appeal: “Is the Appellant entitled to a new trial where the record fails to
disclose or reflect that he voluntarily waived his right to be present at trial and
that his absence was “without cause” thereby depriving him of his federal
constitutional right (U.S.Const. VI Amend.) to be present at all critical stages
of the proceedings?” Anders brief at 2. Counsel identifies and addresses two
additional issues that he has determined are wholly frivolous: that the
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evidence was insufficient to sustain the convictions for attempt to commit
terroristic threats, and a challenge to the discretionary aspects of sentence.
As we do not address the merits of issues raised on appeal without first
reviewing a request to withdraw, we turn at the outset to counsel’s petition to
withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)
(en banc). Procedurally, in order to seek withdrawal, counsel must: 1) petition
for leave to withdraw and state that, after making a conscientious examination
of the record, counsel has concluded that the appeal is frivolous; 2) provide a
copy of the Anders brief to the defendant; and 3) inform the defendant that
he has the right to retain private counsel or raise, pro se, additional arguments
that the defendant deems worthy of the court’s attention. Id.
Robert M. Buttner, Esquire represents in his petition to withdraw that he
made a conscientious review of the record and concluded “this appeal is devoid
of any non-frivolous issues.” Application to Withdraw, 4/22/20, at ¶10.
Counsel also notified Appellant that he was withdrawing, furnished him with
copies of both the application to withdraw and Anders brief, and attached a
copy of his correspondence with Appellant to his application as Exhibit A. In
that correspondence, counsel advised Appellant that he could retain private
counsel. Although he did not expressly advise Appellant that he could proceed
pro se, he did advise Appellant that he could “file a brief raising any issues
you deem worthy of the Court’s attention”. Application to Withdraw, 4/22/20,
Exhibit A, at 1. We find that Appellant has substantially complied with the
procedural mandates of Anders.
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We next consider whether counsel’s Anders brief meets the substantive
requirements of Santiago, mandating that such a brief
(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.
Santiago, supra at 361.
Our review of the Anders brief confirms that counsel sets forth the
factual and procedural background of this case. He provides reasons and legal
authority as to why he concluded that Appellant’s appeal is wholly frivolous.
Counsel outlines the relevant law regarding trial in absentia, sufficiency of the
evidence, and discretionary sentencing claims, and addresses those claims.
Accordingly, we proceed to the merits of this appeal and our own
independent review of the entire record. See Anders, supra at 744 (“the
court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.”);
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (“We now
must conduct an independent review of the record to determine whether the
issues identified by Harden in this appeal are, as counsel claims, wholly
frivolous, or if there are any other meritorious issues present in this case.”).
Counsel identifies three issues that arguably support this appeal: (1)
Appellant’s Sixth Amendment rights were violated by the trial in absentia, (2)
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the evidence was insufficient to support the convictions for attempted
terroristic threats, and (3) a challenge to discretionary aspects of sentence.
Counsel begins by accurately noting that the Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
U.S. Const., amend. VI. The accused has a right to be present at trial unless
he voluntarily and knowingly waives that right. Commonwealth v. Diehl,
107 A.2d 543, 544 (Pa. 1954); see also Pa.R.Crim.P. 602(A).
Appellant argues that additional steps could have been taken to permit
him to be present at trial, such as video teleconferencing. He alleges that the
trial court’s failure to employ such alternatives constituted an abuse of
discretion and resulted in a violation of his constitutional rights. Counsel
concludes, however, that this issue was not preserved for appeal as trial
counsel did not object to proceeding in absentia, file a motion for continuance,
or seek to participate via teleconference. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”). Moreover, even if not waived for failure to object below, counsel
argues that Appellant waived his right to be present at trial when he refused
to attend.
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It is within the discretion of the trial court to proceed to trial with the
defendant in absentia. Commonwealth v. Wilson, 712 A.2d 735, 739 (Pa.
1998). “Discretion is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the record.”
Commonwealth v. Pantano, 836 A.2d 948, 950 (Pa.Super. 2003) (citation
omitted).
While a defendant has the right to be present at trial, the right is not
absolute, and can be waived if a defendant either expressly or implicitly does
so. Commonwealth v. Kelly, 78 A.3d 1136, 1141 (Pa.Super. 2013). As this
Court held in Kelly, “absenting oneself from . . . trial does not violate a
person’s jury trial rights.” Id. at 1143. Additionally, Rule 602(A) provides
that “[t]he defendant’s absence without cause at the time scheduled for the
start of trial or during trial shall not preclude proceeding with the trial.”
Pa.R.Crim.P. 602(A). The Commonwealth bears the burden of proving by a
preponderance of the evidence that a defendant was absent without cause.
Kelly, supra at 1143. In determining whether cause exists, we generally
examine whether a defendant was aware of the charges, the trial date, or was
absent involuntarily. Id. Where a defendant voluntarily refuses to remain in
contact with his counsel, there is a presumption that he “knowingly sought to
avoid being tried.” Id.
The record reveals that Appellant refused to appear in court on two
occasions prior to September 30, 2019, when his case was called for trial. In
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each instance, he refused to leave his cell. On September 30, 2019, the trial
court verified his refusal with the Luzerne County Sheriff’s Department. See
N.T. Call of the List, 9/30/19, at 4-5. Defense counsel stated that her last
contact with Appellant was at the preliminary hearing via videoconference.
Id. at 4. She added that Appellant had “been refusing to have contact with
me or with anybody for quite a while.” Id. When trial in absentia convened
on October 1, 2019, defense counsel did not object to the proceeding or seek
a continuance.
The trial court stated that it “considered all relevant circumstances prior
to proceeding with the trial in absentia, [including] the likelihood [Appellant]
would cooperate and appear if trial were to be again rescheduled.” Trial Court
Opinion, 3/5/20, at 4. It concluded, that Appellant, “by his repeated and clear
actions, waived his right to appear at his trial,” citing Commonwealth v.
Smith, 181 A.3d 1168, 1175 (Pa.Super. 2018) (holding “Citizens can waive
their fundamental rights in the absence of a colloquy; indeed, waivers can
occur by conduct or implication, as in the case of a criminal trial conducted in
absentia after the defendant fails to appear.”). Id.
Based on the record before us, we concur with counsel’s assessment
that Appellant’s claim that the trial court abused its discretion in conducting
the trial in absentia and violated his Sixth Amendment rights is wholly
frivolous.
Counsel contends that any argument that the evidence was legally
insufficient to sustain the convictions is similarly wholly lacking in merit. After
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properly stating our standard of review of a sufficiency claim, counsel
maintains that the facts of record, viewed in the light most favorable to the
Commonwealth, support a finding that Appellant’s sending of the emails
addressed to the victim constituted a substantial step in communicating the
threats contained therein and committing the offense of terroristic threats.
In order to establish the crime of terroristic threats, the statute requires
proof that the accused “communicates, either directly or indirectly, a threat
to: (1) commit any crime of violence with intent to terrorize another.” 18
Pa.C.S. § 2706(a)(1). The communication must be received by the intended
victim. Commonwealth v. Vergilio, 103 A.3d 831 (Pa.Super. 2014). Under
the Crimes Code, “[a] person commits an attempt when with intent to commit
a specific crime, he does any act which constitutes a substantial step towards
the commission of the crime.” 18 Pa.C.S. § 901(a).
The record confirms counsel’s dim view of the success of a sufficiency
claim. The Commonwealth presented evidence that Appellant sent the victim
emails that contained language that could reasonably be viewed as a threat
of violence with the intent to terrorize her. Since the emails were intercepted,
however, they were not communicated to the victim by Appellant, as required
to support a conviction of terroristic threats. However, by presenting evidence
that Appellant pressed the send button, which the jury could reasonably find
constituted a substantial step toward the commission of the crime of terroristic
threats, the Commonwealth established that he attempted to commit that
crime. This claim has no arguable merit.
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Finally, counsel argues that the only other possible issue is a challenge
to the discretionary aspects of sentence. However, since no objection was
made at sentencing to the standard-range sentence imposed, and Appellant
did not file a post-sentence motion, counsel contends the issue is waived. See
Cartrette, supra at 1042 (providing that to adequately preserve a
discretionary sentencing claim, the defendant must present the issue in either
a post-sentence motion, or raise the claim during the sentencing
proceedings). The record supports counsel’s belief that any discretionary
sentencing claim is waived since no post-sentence motion was filed.
For the foregoing reasons, we agree that the identified claims are wholly
frivolous. After a thorough examination of the proceedings below as required
under Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015),
our review did not reveal any other arguably meritorious claims.
Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super. 2018) (en
banc). Hence, we grant counsel’s petition to withdraw, and affirm the
judgment of sentence.
Petition of Robert M. Buttner, Esquire, to withdraw as counsel is granted.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/07/2020
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