J-S72001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JUAN CRISTO-MUNOZ, JR.                  :
                                         :
                   Appellant             :   No. 780 MDA 2018

           Appeal from the Judgment of Sentence April 11, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0001591-2017


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                            FILED APRIL 16, 2019

     Juan Cristo-Munoz, Jr. appeals from the judgment of sentence of two

consecutive terms of life imprisonment without the possibility of parole

(“LWOP”) imposed after he pled guilty to two counts of first-degree murder

and related charges. Appellant’s counsel has filed a petition to withdraw 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 the judgment of sentence.

     The Commonwealth charged Appellant with two counts each of criminal

homicide and robbery, and one count each of burglary and criminal conspiracy

to commit burglary, arising from a February 19, 2017 incident involving the

stabbing deaths of two disabled brothers, Richard Walton and Leroy Kinsey.

Appellant and his co-defendant, Joshua Michael Proper, forced their way into

the brothers’ home in Lancaster City, demanded money, and repeatedly
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stabbed the brothers to death. N.T. Guilty Plea/Sentencing, 4/11/18, at 25-

26. While this was occurring, a third resident was able to escape to the roof

of the residence and call 911. Id. at 25. When they heard police radios, the

co-defendants fled to the basement of the home, where they were

apprehended. Id. at 25-26. When Appellant was discovered, he was wearing

blood-soaked gloves and his clothing and shoes were covered in blood. Police

recovered a knife from Appellant’s sweatshirt, and two additional knives were

located in close proximity to where he was hiding in the basement. Id. After

being taken into custody, Appellant’s co-defendant confessed to breaking into

the residence to rob the victims, and stated that Appellant had stabbed both

victims. Id. at 26.

      The Commonwealth filed a Pa.R.Crim.P. 802 notice of intent to seek the

death penalty on March 22, 2017.      However, on April 11, 2018, Appellant

appeared before the trial court to enter a negotiated guilty plea, under which

the Commonwealth would waive the death penalty in exchange for Appellant’s

guilty plea to all of the charges. N.T. Guilty Plea/Sentencing, 4/11/18, at 30.

The court engaged in a colloquy of Appellant, wherein he demonstrated a

knowledge of the charges pending, the elements of the offenses, and the

maximum penalties for each offense.        Id. 3-18.    Appellant verified his

understanding that, in exchange for his guilty plea, he would give up his right




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to a jury trial and receive consecutive LWOP sentences. Id. at 4, 20. The

court’s sentence was consistent with the negotiated plea agreement.1

        No post-sentence motions were filed. Appellant filed a timely notice of

appeal on May 10, 2018. The trial court ordered Appellant to file a concise

statement of errors complained of on appeal. Appellant’s counsel complied,

listing four issues that Appellant wished to raise and indicating counsel’s intent

to file an Anders brief, explaining that he had been unable to discern any

non-frivolous issues.      On June 19, 2018, the trial court filed its Pa.R.A.P.

1925(a) opinion.

        In this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review of

this matter:

               Direct appeal counsel seeking to withdraw under Anders
        must file a petition averring that, after a conscientious
        examination of the record, counsel finds the appeal to be wholly
        frivolous. Counsel must also file an Anders brief setting forth
        issues that might arguably support the appeal along with any
        other issues necessary for the effective appellate presentation
        thereof . . . .

               Anders counsel must also provide a copy of the Anders
        petition and brief to the appellant, advising the appellant of the
        right to retain new counsel, proceed pro se or raise any additional
        points worthy of this Court’s attention.

               If counsel does not fulfill the aforesaid technical
        requirements of Anders, this Court will deny the petition to
        withdraw and remand the case with appropriate instructions (e.g.,
        directing counsel either to comply with Anders or file an
____________________________________________


1   Appellant was also ordered to pay $33,470.60 in restitution.

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       advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
       petition and brief satisfy Anders, we will then undertake our own
       review of the appeal to determine if it is wholly frivolous. If the
       appeal is frivolous, we will grant the withdrawal petition and affirm
       the judgment of sentence. However, if there are non-frivolous
       issues, we will deny the petition and remand for the filing of an
       advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

       [I]n the Anders brief that accompanies court-appointed counsel’s
       petition to withdraw, counsel 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 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 statues on point that have led
       to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

       Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above. As required by Santiago, counsel set

forth the case history, referred to issues that arguably support the appeal,

stated his conclusion that the appeal is frivolous, and cited to controlling case

law which supports that conclusion. See Anders brief at unnumbered 5-6,

8-9.    Additionally, counsel gave Appellant proper notice of his right to




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immediately proceed pro se or retain another attorney.2               See Santiago,

supra; Application for leave to withdraw, 10/5/18, at Exhibit A. Accordingly,

we proceed to an independent examination of the record in order to discern if

any non-frivolous issues exist. Commonwealth v. Dempster, 187 A.3d 266,

273 (Pa.Super. 2018) (en banc).

        Counsel   identified    four   issues    that   Appellant   wished   to   raise:

(1) Appellant was not provided the opportunity to speak at his sentencing

hearing or testify against his co-defendant; (2) the facts of the case, as

outlined by the Commonwealth, were inaccurate and based upon a “corrupt

source;” (3) the Assistant District Attorney insulted Appellant by calling him a

“monster;” and (4) Appellant was subjected to torture and malnourishment

during his stay at Lancaster County prison. Anders brief at unnumbered 8.

        We first consider whether Appellant has any viable claim regarding

allocution at sentencing. The right of allocution is guaranteed by Pa.R.Crim.P.

704(c)(1) and the sentencing code. 42 Pa.C.S. § 9752(a)(2). The Supreme

Court has interpreted Rule 704 broadly, expanding its protections to require

the trial court to inform a defendant of his right to speak at sentencing.

Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa.Super. 2003).

        Our independent review of the record reveals that Appellant was given

the opportunity to speak at sentencing. Trial Court Opinion, 6/19/18, at 6.



____________________________________________


2   Appellant did not file a response to counsel’s petition.

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Specifically, Appellant was advised of his right to make a statement and

provided with an opportunity to do so, but he declined.             N.T. Guilty

Plea/Sentencing, 4/11/18, at 31-32. As Appellant was afforded his right to

allocution, this claim is frivolous.

      Appellant’s additional argument, that he was denied the opportunity to

testify against his co-defendant, is also frivolous. Although appellate counsel

and the trial court maintain that co-defendant has yet to proceed to trial, there

is no indication in the record as to the status of co-defendant’s case.

Regardless, Appellant is not entitled to testify at his co-defendant’s trial.

Stated plainly, the decision to present a witness in a criminal prosecution rests

with the Commonwealth, not Appellant. Also, there is no indication, from a

review of the record, that Appellant’s plea was predicated on such a

commitment.

      Next, Appellant alleges that the factual summary was inaccurate, as it

contained his co-defendant’s statement that Appellant was the primary actor.

We disagree. When the Court asked the Commonwealth to state the factual

basis for the plea, the Commonwealth responded as follows:

            Your Honor, on February 19th of 2017, at approximately
      1:05 a.m., officers from the Lancaster City Bureau of Police were
      dispatched to 627 Poplar Street for a burglary in progress.

             Upon arrival, officers were able to observe a male in the
      living room area bleeding heavily from the upper body area.
      Officers forced entry into the residence and found Leroy Kinsey,
      who had been in a wheelchair, deceased and covered in blood.
      Blood was observed on the wall and ceiling of the main living room
      as well.

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           Officers continued to search the residence for additional
     victims and went to the second floor of the residence and
     immediately came upon a second deceased victim in the front
     bedroom.

           The second victim, identified as Richard Walton, was on the
     bed and covered in blood, having sustained trauma to his upper
     and lower body. Mr. Walton was an amputee.

           A third resident, Brian Taska, was able to escape onto the
     roof of the house and call 911.

           As officers continued their search throughout the residence,
     they located [Appellant] attempting to conceal himself in the
     basement area, along with [co-defendant].

            [Appellant] was located near the exit of the basement with
     a hooded sweatshirt and blood-soaked gloves on his hands, a
     black fingerless glove on his left hand and a yellow latex glove on
     his right hand.

           [Appellant’s] clothing and shoes were covered in blood. A
     knife was located in [Appellant’s] middle sweatshirt, and two
     additional knives in close proximity to where he was located were
     also recovered.

           [Appellant and co-defendant] were both taken into custody
     and transported to the police station.

           [Co-defendant] immediately confessed to detectives that he
     and [Appellant] broke into the residence to rob the residents
     inside and then began stabbing Mr. Kinsey multiple times in the
     chest, shoulder, and neck area.

           Both men then went to the second floor and [Appellant]
     stabbed Mr. Walton, using a large sword, in the torso and leg area,
     causing massive trauma.

           When [Appellant and co-defendant] heard police radios,
     they ran to the basement and hid from the police.

          Additionally, during this brutal attack of Mr. Kinsey and Mr.
     Walton, their pet dog suffered lacerations at some point during

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      the incident but was able to escape the home. The dog received
      emergency treatment at PETS for the knife wounds she sustained.

            During these horrific acts, Mr. Kinsey was stabbed and cut
      over ten times and suffered a broken nose. He also had defensive
      wounds to the back of his hand.

            Mr. Walton was stabbed 54 times and also had defensive
      wounds to the back of his hands consistent with [Appellant’s] knife
      wounds to his hands that had to be treated that night at the
      hospital.

           Mr. Walton had multiple bruises over his mouth area that
      were compatible also with suffocation.

           Dr. Ross determined the causes of death to be multiple
      traumatic injuries and the manner of death for both Mr. Kinsey
      and Mr. Walton to be homicide.

             Both of these crimes occurred in Lancaster County, within
      this [c]ourt’s jurisdiction.

Id. at 24-27.

      At the conclusion of the summary, Appellant was asked if the factual

summary was correct.       Id. at 27.     He responded in the affirmative.   Id.

Subsequently, he pled guilty to all of the charges, acknowledging that he

performed the acts outlined in the factual basis for the plea.        Therefore,

because Appellant twice admitted to the details of the crimes outlined in the

factual basis, his claim is frivolous.

      Appellant further argues that the Commonwealth’s usage of the term

“monster” during sentencing was “insulting.” Anders brief at unnumbered 8.

Specifically, the Assistant District Attorney stated the following:

           Juan Munoz is a monster and state prison is definitely where
      he belongs. He brutally stabbed and killed two brothers, two

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       disabled brothers. He slaughtered them with multiple knives and
       swords.

Id. at 31.      Importantly, the trial court found that “the remarks played

absolutely no part in the imposition of the negotiated sentence.” Trial Court

Opinion, 6/19/18, at 9. The certified record supports this finding. Since, the

trial court imposed the negotiated sentence, Appellant was not prejudiced by

the prosecutor’s argument.

       Finally, Appellant contends that he was subjected to “torture and

malnourishment” during his fourteen month stay at Lancaster County prison.

Pursuant to the Pennsylvania statute governing prison litigation, claims

challenging the conditions of confinement are separate and distinct from

criminal proceedings “challenging the fact or duration of confinement in

prison.” 42 Pa.C.S. § 6601. Accordingly, this claim is not cognizable on direct

appeal from Appellant’s judgment of sentence.

       Further, we have conducted a “full examination of the proceedings” and

determined that “the appeal is in fact wholly frivolous.”3 Commonwealth v.

Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since our review did not




____________________________________________


3 We undertook our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.”            Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on
those subjects are apparent from the record before us.

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disclose any other arguably meritorious claims, we grant counsel’s petition to

withdraw and affirm the judgment of sentence. Dempster, supra at 273.

      Petition of Edwin G. Pfursich, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/16/2019




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