J-S70030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
WANDALEE BALCACER                        :
                                         :
                   Appellant             :   No. 2002 MDA 2016

          Appeal from the Judgment of Sentence November 8, 2016
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0004025-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 20, 2017

      Wandalee Balcacer (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Luzerne County on

November 8, 2016. Appellant’s counsel has filed an application to withdraw

his representation and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

which govern a withdrawal from representation on direct appeal. Appellant

has not filed a response to counsel’s petition. After careful review, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.

      In an opinion to this Court, the trial court set forth the relevant

procedural and factual history of this case as follows:

             On January 13, 2016, the Luzerne County District Attorney
      filed a four (4) count Information charging [Appellant] with two
      (2) counts of Criminal Homicide-Criminal Attempt 18 Pa.C.S.A.
      §901(A) and two (2) counts of Criminal Conspiracy to commit
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     Homicide 18 Pa.C.S.A. [§] 903. There being no objection to the
     Commonwealth’s Motion to Consolidate Appellant’s case with
     that of her co-defendant, Tony Edwards, by Order dated May 19,
     2016, the cases of Commonwealth versus [Appellant] and
     Commonwealth versus Tony Edwards were consolidated for trial
     pursuant to Pa. R. Crim. P. 453.

           It was alleged that the Appellant and her co-defendant,
     Tony Edwards, were responsible for the attempted killing of
     Sherry Ann Rivera and Izhar Ramos-Ramirez.            Specifically,
     evidence was presented that Ms. Rivera owed Appellant money
     for narcotics. (N.T. p. 303) Appellant enlisted her co-defendant,
     Tony Edwards to join her in confronting Ms. Rivera relative to the
     aforementioned drug debt. On April 4, 2015, Appellant and
     Edwards confronted Ms. Rivera and Mr. Ramirez in a stairway at
     the Interfaith Heights Housing Complex in Wilkes-Barre City.
     (N.T. p 401-405) The victims were ordered to the ground and
     shot by Edwards at Appellant’s urging. (N.T. p. 404).

           Following a trial before a jury, on September 19, 2016, the
     Appellant was found guilty of count three (3), Criminal
     Conspiracy to Commit Homicide of Sherry Ann Rivera. A Pre-
     Sentence Investigation was ordered to be completed by the
     Luzerne County Adult Probation and Parole Department, and a
     sentencing hearing was scheduled.         The sentencing hearing
     commenced on November 8, 2016, when the Appellant was
     sentenced to a minimum period of incarceration of fifteen (15)
     years to a maximum of forty (40) years to be served in a state
     correctional institution. (N.T. Sentencing 11/8//2016 [sic] p. 10)
     [Appellant] was subsequently advised by this [c]ourt of her post-
     sentence rights before the hearing concluded. Id.

Trial Court Opinion, 6/27/17, at 1–2 (footnote omitted).

     Before we address the merits of this appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc).       There are procedural and

briefing requirements imposed upon an attorney who seeks to withdraw on

direct appeal. The procedural mandates are that counsel must:


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      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 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a thorough review of

Appellant’s case and determined that the appeal would be frivolous. Counsel

sent Appellant a copy of the Anders brief and petition to withdraw, as well

as a letter, a copy of which is attached to the petition. In the letter, counsel

advised Appellant that she could either represent herself on appeal or retain

private counsel to represent her.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

      in 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 statutes
      on point that have led to the conclusion that the appeal is
      frivolous.

Santiago, 978 A.2d at 361.

      Counsel’s brief is compliant with Santiago.     It sets forth the factual

and procedural history of this case, outlines pertinent case authority, cites to

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the record, and refers to issues of arguable merit.      Anders Brief at 4–6.

Further, the brief sets forth counsel’s conclusion that the appeal is frivolous

and the reasons for counsel’s conclusion. Id. at 6–7. “Therefore, we now

have the responsibility to make a full examination of the proceedings and

make an independent judgment to decide whether the appeal is in fact

wholly frivolous.”   Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa.

Super. 2016) (citation and internal quotation marks omitted).

      The Anders brief contains three issues for our consideration:

      1. Whether the trial court committed an error of law in allowing
         the Commonwealth’s improper impeachment of the Appellant
         through use of bad character evidence via Facebook
         messages from Appellant’s sister contrary to Pa. Rule of
         Evidence 608.

      2. Whether the trial court committed an error of law in allowing
         the Commonwealth’s cross-examination of Appellant’s inquiry,
         “whether there was any time during the day that you were
         not breaking the law” which is impermissible bad character
         evidence that violated the court’s limited instruction on
         admissibility of Appellant’s drug selling activity.

      3. Whether the trial court committed an error of law in
         permitting the Commonwealth’s closing argument “that
         Defendant can bring as many lawyers as she wants to feed
         you bullshit” which violates the Appellant’s Sixth Amendment
         Right to Counsel.

Anders Brief at 1.

      The first issue concerns the admission of impeachment evidence. Our

standard of review for evidentiary matters is well established:

      The admission of evidence is a matter vested within the sound
      discretion of the trial court, and such a decision shall be reversed
      only upon a showing that the trial court abused its discretion. In

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      determining whether evidence should be admitted, the trial court
      must weigh the relevant and probative value of the evidence
      against the prejudicial impact of the evidence. Evidence is
      relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact.

Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2017), appeal

denied, 225 EAL 2017, 2017 WL 3393565 (Pa. filed Aug. 8, 2017) (quoting

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)

(citation omitted)).   “An abuse of discretion is not merely an error of

judgment; rather, 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. Trinidad, 96 A.3d 1031, 1036 (Pa.

Super. 2014) (citations and quotations omitted).

      Appellant’s challenge stems from the prosecutor asking Appellant on

cross-examination if she would describe herself as a “manipulator.”        N.T.,

9/19/16, at 951. When Appellant answered negatively, the Commonwealth

produced the following Facebook message:

              My name is Wandalee Balcacer and I am 25 years old.
      This is the email I have been using. It is my sister’s. Her name
      is . . ., my number is . . . . I am the ultimate player because I
      don’t play the physical part of things, I play the mental. I am a
      manipulator of dudes, etc., or in it to win. I am one of the
      smartest people you will ever meet, but I play dumb. Pick me
      MTV. Love, Loren.

Id. at Commonwealth’s Exhibit 53.          Defense counsel objected to the

Facebook message as an attack on Appellant’s character.           Id. at 951.

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Following sidebar arguments, the trial court overruled the objection. Id. at

952–954.

        In her Pa.R.A.P. 1925(b) statement of errors complained of on appeal,

Appellant complained that the trial court violated Pa.R.E. 608 by admitting

evidence of Appellant’s character for truthfulness or untruthfulness. The trial

court rejected Appellant’s Rule 608 argument, instead allowing “the

questioning pursuant to [Pa.R.E.] 613 which permits a witness to be

confronted with a prior inconsistent statement and [Pa.R.E.] 803(25) which

governs the admissions of an opposing party.” Trial Court Opinion, 6/27/17,

at 6. According to the trial court, the Facebook message was relevant given

the Commonwealth’s theory of the case and Appellant’s defense that she

was merely present at the shooting. Id. at 7. Lastly, the trial court recalled

that:

        Appellant flatly denied authoring the statement at issue and in
        her case in chief, she called a witness who admitted to having
        posted the comment.4 (N.T. Trial p. 955–956). Consequently, as
        the testimony developed, the statement previously attributed to
        the Appellant became irrelevant.

             4  Defense witness, Anthony Velez AKA [Anthea]
             Velez was shown the writing, represented to be an e-
             mail, and the witness unequivocally testified that
             [s]he authored the e-mail in an effort to present the
             Appellant for consideration on MTV’s “The Real
             World” television program. (N.T. Trial p. 1002)

Trial Court Opinion, 6/27/17, at 7.

        Upon review, we discern no abuse of discretion in the trial court’s

ruling. The Facebook message was relevant to support the Commonwealth’s

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theory   of   complicity   and   to   undermine   Appellant’s   defense.    The

Commonwealth’s evidence suggested that “Appellant persuaded her co-

defendant, Tony Edwards to attempt to kill Sherry Ann Rivera and Izhar

Ramirez over a drug debt owed to Appellant by Ms. Rivera.”           Trial Court

Opinion, 6/27/17, at 7. Contrarily, a defense witness testified that Appellant

was “in over her head” and that “Appellant’s co-defendant, Tony Edwards,

spontaneously robbed and shot the victims as Appellant was requesting the

return of her money or drugs.” Id.; N.T., 9/19/16, at 792, 821–822.

      Moreover, the record confirms Appellant’s denial of authorship. After

directing Appellant to read the Facebook message into the record, the

prosecutor asked her, “So you -- you would admit you describe yourself in

this correspondence as a manipulator?” Id. at 955. Appellant responded, “I

wouldn’t admit anything because I didn’t write that.”       Id. at 956.    When

defense counsel questioned Appellant’s witness, Anthea Velez, about the

Facebook message, the witness admitted that she “wrote those words on

that email” in order to convince MTV that Appellant should be on their show.

Id. at 1002. In light of this record, we agree with Appellant’s counsel that

admission of the Facebook message “did not result in any prejudice to the

Appellant.” Anders Brief at 6.

      The next issue presented is also an evidentiary challenge.       The trial

court set forth the backdrop of this claim as follows:

          [Appellant] next alleges that we erred by “allowing the
      Commonwealth’s cross-examination of [Appellant] inquiring

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        ‘whether there was any time during the day when you weren’t
        breaking the law’ which is impermissible bad character evidence
        that violated the court’s limiting instruction on admissibility of
        [Appellant’s] drug selling activity.”

              On cross-exam Appellant was indeed asked “Is there an
        hour in [the] day where you didn’t deal drugs or commit a
        crime?” (N.T. Trial p. 948) Appellant responded to the inquiry
        but no objection was made.

Trial Court Opinion, 6/27/17, at 8.

        The trial court and appellate counsel advise that this issue is waived

because defense counsel made no objection to the prosecutor’s question.

Trial Court Opinion, 6/27/17, at 8; Anders Brief at 7. The record supports

their position. N.T., 9/19/16, at 948. Accordingly, we agree that this issue

is waived.    See Commonwealth v. Sauers, 159 A.3d 1, 9 (Pa. Super.

2017) (stating that the failure to offer a timely and specific objection results

in waiver of the claim).

        The third issue presented concerns the prosecutor’s closing argument.

Specifically, the Commonwealth told the jury, “You could have a thousand

lawyers come in here to feed you any line of bull –-.”        N.T., 9/19/16, at

1122.    Defense counsel promptly objected to the comment as “improper,”

and the trial court sustained the objection.         Id.   At the end of the

prosecutor’s closing argument, defense counsel moved for a mistrial, arguing

that the prosecutor’s comment impinged upon Appellant’s right to counsel.

Id. at 1124. Following sidebar arguments, the trial court denied the motion

and issued a cautionary instruction. Id. at 1127.


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     Upon review, we dispose of this issue by adopting the trial court’s well-

reasoned analysis:

            The [c]ourt instructed the jury at the outset of the trial as
     to what they are to consider as evidence. Particularly, after the
     jury panel was selected, the [c]ourt in the course of giving the
     jurors prefatory instructions stated, “Statements made by
     counsel do not constitute evidence. The questions which counsel
     put to witnesses are not, themselves, evidence.” (N.T. Trial p.
     168–169) We reiterated this just prior to counsels’ opening
     statements noting that “The opening statements, as with any
     other statement made by counsel, do not constitute evidence
     . . .” (N.T. Trial p. 174) The [c]ourt again so instructed the jury
     at the conclusion of the trial. (N.T. Trial p. 1160) The jury is
     presumed to follow the Court’s instructions. Commonwealth v.
     Reid, 627 Pa. 151, 202, 99 A.3d 470, 501 (2014) citing
     Commonwealth v. Travaglia, 611 Pa. 481, 28 A.3d 868 (2011).
     The Appellant offers no argument or evidence that the jury
     disregarded the Court’s instructions.         Thus, [Appellant’s]
     allegation of error is meritless.

           More importantly, our examination of the record further
     reveals that Appellant’s counsel objected to the offending remark
     and we sustained the objection. (N.T. Trial p. 1122) Appellant’s
     counsel developed his objection further and moved for a mistrial
     which we denied. (N.T. Trial p. 1124–1125)

           The decision to declare a mistrial is within the sound
     discretion of the trial court. Commonwealth v. Montgomery, 626
     A.2d 109 (Pa. 2009). A mistrial is an extreme remedy that may
     be granted only when an incident is of such a nature that its
     unavoidable effect is to deprive the defendant of a fair trial.
     Commonwealth v. Manley, 985 A.2d 256 (Pa. Super. 2009).
     After the jury is exposed to unfairly prejudicial evidence the trial
     court may implement any appropriate remedy, including offering
     a remedial instruction or declaring a mistrial. Commonwealth v.
     Sanchez, 36 A.3d 24, 47–48 (Pa. 2011).

           Appellant’s counsel made [a] motion for a mistrial shortly
     after we sustained his objection to the prosecutor’s objectionable
     comment and he requested a limiting or cautionary instruction.
     We denied his motion for a mistrial and promptly gave the jury
     the following cautionary instruction:

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      “Ladies and gentlemen of the jury, I just want to caution you, as
      I have a number of times and you’re going to hear later on in my
      closing instructions, that, once again, you just hearing closing
      arguments. Those are arguments of counsel. Those arguments
      are not evidence, and you are not to consider them as such.
      And I am asking you to disregard the comment that was made
      by the Commonwealth’s counsel about, Miss Balcacer’s attorney
      being bull, or something along those lines. I’d just ask that that
      be stricken and disregarded by you.” (N.T. Trial p. 1127).

            Plainly, the offending argument of counsel did not so
      prejudice the Appellant that she is entitled to a new trial. We did
      not condone the objectionable argument of the prosecutor and
      we sustained counsel’s objection, gave a cautionary instruction,
      and directed the comment be stricken.              Appellant’s final
      allegation of error is without merit. . . .

Trial Court Opinion, 6/27/17, at 9–10.

      Finally, we have independently reviewed the record in order to

determine if appellate counsel’s assessment about the frivolous nature of the

present appeal is correct. See Commonwealth v. Flowers, 113 A.3d 1246,

1250 (Pa. Super. 2015) (after determining that counsel has satisfied the

technical requirements of Anders and Santiago, this Court must conduct an

independent review of the record to determine if there are additional, non-

frivolous issues overlooked by counsel). We conclude that an appeal in this

matter is frivolous.   Accordingly, we grant appellate counsel permission to

withdraw and affirm the judgment of sentence.

      Application to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




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