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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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