J-S36042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CHARLES HACKLEY                           :
                                           :
                    Appellant              :   No. 1769 MDA 2018

    Appeal from the Judgment of Sentence Entered September 20, 2018
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0003536-2017,
                          CP-40-CR-0003539-2017


BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                  FILED SEPTEMBER 23, 2019

      Charles Hackley (Hackley) appeals from the judgment of sentence

entered in the Court of Common Pleas of Luzerne County (trial court) following

his non-jury trial convictions for several offenses related to a drug sale.

Hackley’s appellate counsel seeks to withdraw under Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).   We grant the application to withdraw and affirm the judgment of

sentence.

                                      I.

      The trial court set forth the pertinent facts in its opinion, which we now

adopt:

      On July 5, 2017, Kingston Borough Police Detective Richard
      Kotchik (Kotchik) and Patrol Officer Robert Miller (Miller) were
      working as members of the Luzerne County Drug Task Force (Task
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36042-19


     Force) investigating a controlled drug buy. Detective Edward
     Palka (Palka), a detective assigned to the Kingston Police
     Department Narcotics Unit, was also working on the investigation
     that day. The Task Force intended to use Joel Curry (Curry), a
     confidential informant, to purchase either heroin or crack cocaine
     from Gabriell Laimo (Laimo) with whom [Hackley] had an intimate
     relationship. Curry had made arrangements with Laimo by phone
     to meet her at Heffron’s gas station in the borough of Luzerne in
     order to purchase ten bags of heroin (also known as a “bundle” of
     heroin) from her. Officer Miller conducted a search of Curry both
     before and after the transaction and nothing illegal was found on
     his person. A series of phone calls was placed to [Hackley] or to
     Laimo, and an agreement was made to have Curry meet Laimo in
     the area of Heffron’s. Detective Kotchik drove Officer Miller and
     Curry to the area and parked where they would have a good
     vantage point of the parking lot. Curry was under police
     surveillance the entire time.

     While Curry waited outside the car, Laimo arrived driving a silver
     PT Cruiser. The front windows of Laimo's car were down. Officer
     Miller had a clear view of [Hackley] in the front passenger seat.
     Officer Miller took a video of what he was observing. While
     conducting surveillance of the transaction, Detective Palka also
     had a clear view of the PT Cruiser and was able to get a good look
     at [Hackley] and take digital photographs of him. Detective Palka
     saw [Hackley] lean towards Laimo as Curry was getting in the car.
     Curry testified that he saw [Hackley] hand heroin to Laimo. Laimo
     exited the driver’s seat and switched places with a white female
     who was in the back seat of the car. Curry stated that after pulling
     out of the gas station, he gave Laimo $80.00 in prerecorded bills
     and she gave him nine of the packets of heroin that she got from
     [Hackley]. Curry said Laimo kept one of the ten packets of heroin.
     The car drove for a few blocks and pulled over at the corner of
     Schuyler Avenue where Curry got out of the car.

     While they were driving, [Hackley] asked Curry if he knew
     anybody that was renting their cars. Curry testified that it is
     common for addicts to rent their cars out for drugs, and that he
     had done it in the past while he was an addict. Curry returned to
     Detective Kotchik’s vehicle and got inside. Curry turned over nine
     packets of heroin. The heroin was packaged in double sealed bags
     which were white with the black stamp of “Gold Rush” and black
     rubber bands around the outside. The packaging was consistent
     with heroin packaging. Lauren Force, a forensic scientist II with

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      the Pennsylvania State Police, Bureau of Forensic Services,
      Wyoming Regional Laboratory, testified that her tests confirmed
      that the substance in the bag she tested was in fact heroin and
      other controlled substances, including fentanyl.

      Officer Miller was present and involved in [Hackley]’s arrest a
      week after the controlled buy involving Curry. On July 12, 2017,
      a large contingent of officers, including some officers in uniform,
      met to execute a search warrant at . . . the residence from which
      Laimo was selling heroin. Neither [Hackley] nor Laimo was at the
      residence at the time the search was conducted. Detective
      Kotchik and Officer Miller moved Kotchik’s vehicle down the block
      in order to see if either [Hackley] or Laimo had come back to the
      residence while the warrant was being served.

      Half a block away from the residence, Officer Miller and Detective
      Kotchik saw Laimo pull up in a silver Honda with [Hackley] in the
      passenger seat. The officers contacted Detective Palka inside the
      residence to advise him that the two targets of the investigation
      were outside.

                                     ....

      Detective Palka was the first to approach [Hackley]. Detective
      Palka identified himself as police and gave numerous commands
      to [Hackley], including telling him several times that he was under
      arrest and telling [Hackley] to get down on the ground. Officer
      Miller and Detective Kotchik were still approaching the car when
      [Hackley] ran away between two houses. Officer Miller was also
      yelling, “Police, you’re under arrest” at [Hackley]. Detective Palka
      continued to yell “stop, police, stop” as he chased [Hackley].

      Ultimately, over twenty police officers from several different
      departments and agencies engaged in an extensive foot chase
      through a busy area of town, searching for [Hackley] for at least
      an hour before he was eventually apprehended. Even after he
      was found hiding in tall grass, [Hackley] ignored the commands
      of Officer Ryan Mahovick, who was holding him at gun point.

Trial Court Opinion, 1/18/19, at 3-7.

      Hackley was charged at docket number 2017-3536 as follows: three

counts of Conspiracy; two counts of Possession with Intent to Deliver Heroin;

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and one count of Possession of Heroin. At docket number 2017-3539, Hackley

was charged with one count each of Escape, Flight to Avoid Apprehension, and

Resisting Arrest. Following a non-jury trial, he was convicted as charged at

2017-3536, and of Escape at 2017-3539.

       Hackley was sentenced at docket number 2017-3536 to a term of 24 to

48 months as to the Delivery count, and 24 to 48 months as to the Conspiracy

to Deliver count. As agreed by the parties, the remaining counts merged for

sentencing purposes. He was also sentenced at docket number 2017-3539 to

consecutive term of 24 months to 48 months. Hackley appealed following the

denial of timely post-sentence motions, and appellate counsel has petitioned

to withdraw.1


____________________________________________


1  In Commonwealth v. Walker, 185 A. 3d 969 (Pa. 2018), our Supreme
Court held that under Pa.R.A.P. 341, an appeal must be quashed if a defendant
files only a single notice of appeal as to multiple docket numbers. Although
Hackley filed one notice of appeal for two docket numbers, Walker is
inapplicable here because the trial court and the Prothonotary treated the
proceedings in a way that is tantamount to complete consolidation under one
docket number.

Here, certified records on appeal were prepared for docket numbers 2017-
3539 and 2017-3536, but only the latter includes an order of judgment of
sentence. The order bears both docket numbers, but advises Hackley of
having 30 days “from this order” (in the singular), to appeal to the Superior
Court. In so writing, the trial court essentially told Hackley that there was one
order, and that he was entitled to only one appeal. This Court held recently
in Commonwealth v. Stansbury, 303 EDA 2019 *3 (Pa. Super. September
5, 2019), that a party may file a single notice of appeal in these circumstances
because it results from a breakdown of court operations.




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                                               II.

       We must first address appellate counsel’s application to withdraw. See

Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2013) (“When

presented with an Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”). Both

procedural and substantive requirements must be satisfied.        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



____________________________________________


The case docket for 2017-3539 further confirms the existence of at most a
single order because it does not contain a judgment of sentence or any other
document relating to the present appellate proceedings.          Instead, the
Prothonotary’s handwritten notes next to several entries on the case docket
sheet direct the reader to “See 3536-17.” Pa.R.A.P. 301(b) provides that
“Every order shall be set forth on a separate document,” but the trial court
only set forth one document – the order entered at 2017-3536, which bore
the two docket numbers. This means there was no separate order entered at
2017-3539 for Hackley to appeal. See Pa.R.A.P. 301(a) (“no order of a court
shall be appealable until it has been entered upon the appropriate docket in
the lower court.”) (Emphasis added). Indeed, the inclusion of two docket
numbers in the one order raises the question of whether any appealable order
was entered at all. See Pa.R.A.P. 301(b) (making entry of a separate
document for each order a “requisite” for appealability). Thus, it is clear that
Hackley’s notice of appeal comports with Walker because the trial court was
responsible for any of its potential defects.




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worthy of the court’s attention. See Commonwealth v. Cartrette, 83 A.3d

1030, 1032 (Pa. Super. 2013).

       Counsel has complied with these procedural mandates. The application

indicates that counsel reviewed the entire record and concluded that the

instant appeal is wholly frivolous. The application states that a copy of the

Anders brief was attached to a letter, which informed Hackley that he has the

right to hire private counsel or file a pro se brief.2 See Commonwealth v.

Woods, 939 A.2d 896, 900 (Pa. Super. 2007) (noting this Court’s precedents

requiring that counsel attach to their withdrawal petition a copy of the letter

sent to the client).

       We now examine the substantive elements. The brief accompanying

the petition to withdraw 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; (3) set forth

counsel’s conclusion that the appeal isf frivolous; and (4) state counsel’s

reasons for concluding that the appeal is frivolous. See Santiago, 978 A.2d

at 361. Counsel’s Anders brief summarizes the factual and procedural history

and identifies two potential issues. It cites to parts of the record that tend to


____________________________________________


2Hackley sought and received two extensions of time to file a pro se response.
On June 27, 2019, we extended the deadline to July 15, 2019, and noted that
no further extensions would be granted. Hackley filed a response on July 17,
2019, and he included an exhibit showing that he placed the brief in the prison
mail system on July 12, 2019. We consider the brief timely filed.


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support the claim and outlines the legal analysis that led counsel to conclude

that any appeal would be frivolous.

                                           III.

       Because counsel has complied with the aforementioned requirements,

we now “make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.” Santiago,

978 A.2d at 355 n.5. We will consider “not only the brief filed by counsel but

also any pro se appellate brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa. Super. 2007).          The Anders brief identifies two issues arguably

supporting an appeal: (1) a sufficiency challenge to all convictions and (2)

whether the sentence was an abuse of discretion. The pro se brief addresses

several other issues.3


____________________________________________


3 The pro se brief is 185 pages and its list of questions presented simply
declares that Hackley was wrongfully convicted in violation of the 4th, 5th,
6th, and 14th Amendments to the United States Constitution, and that all of
his attorneys were ineffective. While Hackley obviously expended considerable
effort in preparing the brief, the failure to raise and argue discrete issues
precludes meaningful discussion.

In any event, the vast majority of his issues appear to be ineffectiveness
claims. By way of example, Hackley avers that trial counsel failed to impeach
one of the testifying officers: “[Counsel] failed to impeach Officer Miller for
falsely testifying (as indicated under Section (B)(1), (IV), (a), (b), and (c),
and (d)) , when there [was] no person identified and no person accused by
Officer Miller . . . “). Pro se Brief at 37. Other claims not challenging trial
counsel’s stewardship fail to identify or discuss any applicable case law. An
example is Hackley’s allegation that the search warrant for Laimo’s residence
was defective. Hackley fails to explain why he would be entitled to relief even
if that were true. In short, nothing in Hackley’s pro se brief persuades this
Court that there is a non-frivolous issue.

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      The Anders brief addresses the merits of some of the sufficiency claims

and opines that the verdict cannot be attacked because the trial judge rejected

Hackley’s testimony at trial, where he stated that the object he handed to

Laimo was not drugs but a cigarette.       Hackley further stated that he was

simply with Laimo in the car because of their relationship and had no

knowledge of the sale. Counsel correctly observes that this is a credibility

determination properly left to the fact-finder.

      However, this merits analysis presumes that the issues are preserved

for review. In his 1925(b) Statement, Hackley framed his challenge to the

verdicts as follows:

      Whether the Commonwealth proved beyond a reasonable doubt
      and the evidence was sufficient to convict the Defendant of the
      following charges: No. 3536 of 2017, Count I, Delivery of Heroin;
      Count II, Criminal Conspiracy to Deliver Heroin; Count III,
      Possession with Intent to Deliver Heroin; Count IV, Criminal
      Conspiracy to Possess with Intent to Deliver Heroin; Count V,
      Possession of a Controlled Substance; Count VI, Criminal
      Conspiracy to Possess Heroin; No. 3539, Count I, Escape.

Concise Statement, 11/9/18, at 1.

      We agree with the trial court that the Rule 1925(b) statement waived

all issues respecting the sufficiency of the evidence. See Commonwealth v.

Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (“If a Rule 1925(b) statement is too

vague, the trial judge may find waiver and disregard any argument.”). This

generic boilerplate challenge to all elements of every single conviction is too

vague.   See Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.

2013) (sufficiency claims waived where statement alleged that “the evidence

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was legally insufficient to support the convictions”).   Furthermore, the fact

that Anders counsel’s defective Statement caused these issues to be waived

does not alter that analysis. See Commonwealth v. Garang, 9 A.3d 237,

244 (Pa. Super. 2010) (examining merits of issue discussed in Anders brief

and concluding issue was waived for failing to include it in the Pa.R.A.P. 1925

statement).

      Moving on to the other identified issue – a challenge to the trial court’s

discretion in imposing sentence – we find the claim to be frivolous. “The right

to appellate review of the discretionary aspects of a sentence is not absolute,

and   must    be   considered    a   petition   for   permission    to   appeal.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation

omitted). An appellant must satisfy a four-part test to invoke our jurisdiction.

Among these requirements is establishing a “substantial question” that the

sentence is not appropriate under the Sentencing Code.             “A substantial

question exists only when the appellant advances a colorable argument that

the sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Clarke, 70 A.3d

1281, 1286–87 (Pa. Super. 2013) (citation omitted).

      Hackley cannot present a substantial question.        The post-sentence

motion simply stated:      “Defendant is requesting This Honorable Court




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reconsider the sentence imposed because the sentence . . . is running

consecutively[.]” He then asked the judge to impose a concurrent sentence.

      In general, the decision to impose consecutive sentences instead of

concurrent does not present a substantial question.        Commonwealth v.

Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). Something more, such as an

allegation that the sentence is excessive in relation to the nature of the crimes

or that the judge ignored mitigating circumstances, is needed.              See

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015). Hackley

simply requested that the judge reconsider his sentence. Since he did not

allege that his sentence is excessive or violates the Sentencing Code in any

way, the claim is frivolous.

      Petition to withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/23/2019




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