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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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
____________________________________________


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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