J-S22038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PHILLIP MALDONADO,

                            Appellant                No. 1504 MDA 2016


            Appeal from the Judgment of Sentence August 31, 2016
               in the Court of Common Pleas of Lebanon County
              Criminal Division at No.: CP-38-CR-0000656-2015


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 13, 2017

        Appellant, Phillip Maldonado, appeals from the judgment of sentence

imposed on August 31, 2016, following his jury conviction of drug delivery

resulting in death1 and related offenses. Appellant’s counsel has filed a brief

and a petition to withdraw under Anders v. California, 386 U.S. 738

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

alleging that the appeal is wholly frivolous.     We affirm the judgment of

sentence and grant counsel’s request to withdraw.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2506(a).
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        On April 27, 2015, the Commonwealth filed a criminal information

charging Appellant with one count each of drug delivery resulting in death,

criminal    conspiracy,2    possession         with   intent    to   deliver   a    controlled

substance,3 and receiving stolen property.4 A jury trial took place on August

3, 2016.

        At trial, Commonwealth eyewitness Tiffany Hoover testified that, on

May 16, 2014, she purchased drugs from Appellant.                         (See N.T. Trial,

8/03/16, at 18-20). Appellant introduced her to the victim and asked her if

she wanted to make some money, which Ms. Hoover understood as having

sex or “doing other things” with the victim.                   (Id. at 20).        Ms. Hoover

observed that the victim had bags of heroin that he purchased from

Appellant; bags identical in appearance to bags she purchased from

Appellant. (See id. at 20-21). The victim and Ms. Hoover then drove to a

motel, smoking crack cocaine, purchased from Appellant, together.                        (See

id.).    When they got into the motel room, Ms. Hoover stated that she

injected heroin that she had purchased from Appellant, while the victim

sniffed his heroin. (See id. at 21-23). Then, at the victim’s request, Ms.

Hoover contacted Appellant to purchase more heroin.                      (See id. at 22).

____________________________________________


2
    18 Pa.C.S.A. § 903(a)(1).
3
    35 P.S. § 780-113(a)(30).
4
    18 Pa.C.S.A. § 3925(a).



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Appellant came to the motel and delivered an additional four bags of heroin.

(See id.). Ms. Hoover helped the victim inject one bag of heroin; shortly

thereafter, she observed the victim get sick and then go into a sleepy state.

(See id. at 24-25).   At that point, Ms. Hoover stole some of the victim’s

property and left. (See id. at 25). The next morning, the motel’s assistant

manager found the victim dead in the room and contacted the police. (See

id. at 11-12).

      Lebanon City Police Detective William Walton testified that he spoke

with Appellant on three separate occasions.   (See id. at 46-50). In his first

statement, Appellant admitted that he purchased a specific brand of heroin

called Sale on Ms. Hoover’s behalf, then sold it to her on May 16, 2014.

(See id. at 46). He also admitted going to the motel to sell additional drugs

to her, but claimed it was crack cocaine not heroin.        (See id. at 47).

During the second conversation, Appellant claimed that when Ms. Hoover

contacted him for additional heroin, it was too late in the evening to contact

the dealer he purchased it from and that this was why he delivered crack

cocaine. (See id. at 48). During the third conversation, Appellant admitted

delivering the second batch of heroin to Ms. Hoover but claimed that she

must have tampered with it before giving it to the victim. (See id. at 50).

      Sergeant Jonathan Hess of the Lebanon City Police testified that when

he gave Appellant a copy of the charges in the instant matter, Appellant




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stated that he gave the heroin to Ms. Hoover and she “shot [the victim] up.”

(Id. at 65).

      The parties stipulated that the victim died because of mixed substance

toxicity.   (See id. at 68).    Namely, he had ethanol (alcohol), morphine,

cocaine, cocaethylene, benzoylecgonine, and 6-monoacetylmorphine in his

blood at the time of death. (See id.).

      Joann Sell, the retired manager of the toxicology department for

Health Network Laboratories, also testified as an expert at trial. (See id. at

69, 79).       Ms. Sell stated that neither the amounts of alcohol nor the

amounts of cocaine in the victim’s blood were sufficient to cause death.

(See id. at 90, 92-94).        She testified that, to a reasonable degree of

scientific certainty, the victim would not have died but for the use of heroin.

(See id. at 94-95, 105, 108).

      At the close of the Commonwealth’s evidence, Appellant moved for a

judgment of acquittal with respect to the count of receiving stolen property.

(See id. at 112). The trial court granted the motion. (See id.).

      Appellant took the stand on his own behalf.          (See id. at 113).

Appellant testified that he both used and sold drugs, sometimes acting as an

intermediary, purchasing drugs from another dealer and selling them to a

user. (See id. at 113-15). He admitted that he purchased the Sale brand

of heroin from another dealer and sold it to Ms. Hoover on May 16, 2014.

(See id. at 115).     He also admitted that, later that day, after receiving a


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phone call from Ms. Hoover, he took a cab to the motel and sold her crack

cocaine; he believed it was too late at night to get more of the Sale brand of

heroin. (See id. at 116-18). Appellant claimed that Ms. Hoover was alone

at the motel room and averred that he had never sold drugs to the victim

and did not ever see him. (See id. at 118-19).

       The jury convicted Appellant of all remaining charges, including

involuntary manslaughter, which Appellant requested. (See id. at 133, 139-

40).    On August 31, 2016, the trial court sentenced Appellant to an

aggregate term of incarceration of not less than nine nor more than nineteen

years to be served consecutively to any other sentence.     (See Sentencing

Order, 8/31/16, at i-iii).   On September 8, 2016, Appellant filed both a

timely notice of appeal and a concise statement of errors complained of on

appeal.   See Pa.R.A.P. 1925(b).      On November 2, 2016, the trial court

issued an order adopting an earlier opinion as its Rule 1925 opinion. (See

Order, 11/02/16, at unnumbered page 1); Pa.R.A.P. 1925(a).

       On December 9, 2016, counsel filed a motion to withdraw and Anders

brief in this Court. Appellant has filed a response.

       On appeal, both the Anders brief and Appellant’s response raise

identical issues, namely that the evidence was insufficient to sustain

Appellant’s conviction and that he received ineffective assistance of trial

counsel. (See Anders Brief, at 7-12; Appellant’s Brief, at 4-11).




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      Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

appeal on the basis that the appeal is frivolous 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, supra at 361. When we receive an Anders brief, we first rule on

the petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).

In addition, “[p]art and parcel of Anders is our Court’s duty to review the

record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

      In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, he has petitioned this

Court to withdraw because “the appeal filed in this matter is wholly frivolous

and without any merit.” (Application for Relief in the Nature of a Motion to

Withdraw as Counsel, 12/09/16, at unnumbered page 1). In addition, after

his review of the record, counsel filed a brief with this Court that provides a

summary of the procedural history and facts with citations to the record,

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refers to any facts or legal theories that arguably support the appeal, and

explains why he believes the appeal is frivolous. (See Anders Brief, at 4-

13). Lastly, he has attached, as an exhibit to his motion to withdraw, a copy

of the letter sent to Appellant giving him notice of his rights, and including a

copy of the Anders brief and the petition. (See Application for Relief in the

Nature of a Motion to Withdraw as Counsel, 12/09/16, at Exhibit A); see

also Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa. Super.

2005). As noted above, Appellant responded with a brief raising the same

issues as those raised in the Anders brief.                   Because counsel has

substantially    complied     with   the   dictates   of   Anders,   Santiago,   and

Millisock, we will examine the issues set forth in both briefs. See Garang,

supra at 240-41.

       In his first and second issues, Appellant claims the evidence was

insufficient to sustain his conviction for drug delivery resulting in death.5

(See Anders Brief, at 7-12; Appellant’s Brief, at 5-11). Because Appellant’s

sufficiency issues are interrelated, we address them together.

       Our standard of review for sufficiency of the evidence claims is well

settled:

            We must determine whether the evidence admitted at trial,
       and all reasonable inferences drawn therefrom, when viewed
____________________________________________


5
  Appellant does not challenge the sufficiency of the evidence underlying his
conviction on the remaining charges.         (See Anders Brief, at 7-12;
Appellant’s Brief, at 5-11).



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     in a light most favorable to the Commonwealth as verdict
     winner, support the conviction beyond a reasonable doubt.
     Where there is sufficient evidence to enable the trier of fact to
     find every element of the crime has been established beyond a
     reasonable doubt, the sufficiency of the evidence claim must fail.

           The evidence established at trial need not preclude every
     possibility of innocence and the fact-finder is free to believe all,
     part, or none of the evidence presented. It is not within the
     province of this Court to re-weigh the evidence and substitute
     our judgment for that of the fact-finder. The Commonwealth’s
     burden may be met by wholly circumstantial evidence and any
     doubt about the defendant’s guilt is to be resolved by the fact
     finder unless the evidence is so weak and inconclusive that, as a
     matter of law, no probability of fact can be drawn from the
     combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

     The jury convicted Appellant of drug delivery resulting in death, 18

Pa.C.S.A. § 2506(a), which states:

     (a) Offense defined.—A person commits a felony of the first
     degree if the person intentionally administers, dispenses,
     delivers, gives, prescribes, sells or distributes any controlled
     substance or counterfeit controlled substance in violation of
     section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233,
     No. 64) known as The Controlled Substance, Drug, Device and
     Cosmetic Act, and another person dies as a result of using the
     substance.

18 Pa.C.S.A. § 2506(a) (footnote omitted).

     Appellant contends that the evidence was insufficient to sustain his

conviction because the Commonwealth did not prove that: (1) he supplied

the heroin to the victim, (see Anders Brief, at 10-12; Appellant’s Brief, at

7-8); and (2) the heroin was the sole cause of death, i.e. that the victim


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died of mixed toxicity (see Anders Brief, at 7-9; Appellant’s Brief, at 5-7).

We disagree.

      Here, as discussed above, Ms. Hoover testified that both she and the

victim purchased heroin and crack cocaine from Appellant. (See N.T. Trial,

8/03/16, at 18-21).     After using the initial bags of heroin, Ms. Hoover

contacted Appellant to purchase additional heroin; Appellant came to their

motel room and sold them additional heroin.       (See id. at 21-22).    Ms.

Hoover helped the victim inject one bag of the heroin, and when he began to

get sleepy she left, stealing some of the victim’s property. (See id. at 24-

25). This evidence is clearly sufficient to show that Appellant supplied the

heroin to the victim.

      Moreover, Appellant’s claim is, in essence, a contention that the jury

should have credited his testimony that he did not sell the heroin to the

victim and not credited Ms. Hoover’s testimony.   (See Anders Brief, at 12;

Appellant’s Brief, at 7-8). However, such an argument goes to the weight of

the evidence, not the sufficiency of the evidence. See Commonwealth v.

W.H.M., Jr., 932 A.2d 155, 160 (Pa. Super. 2007) (claim that jury should

have believed appellant’s version of event rather than that of victim goes to

weight, not sufficiency of evidence); Commonwealth v. Wilson, 825 A.2d

710, 713-14 (Pa. Super. 2003) (review of sufficiency of evidence does not

include assessment of credibility of testimony; such claim goes to weight of

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super.


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1997) (credibility determinations are made by finder of fact and challenges

to those determinations go to weight, not sufficiency of evidence).

Accordingly, Appellant’s claim that the evidence was insufficient to show that

he supplied the heroin lacks merit.

          Appellant also claims that the Commonwealth failed to prove that the

heroin caused the victim’s death.     (See Anders Brief, at 7-9; Appellant’s

Brief, at 5-7).     Initially, we note that Appellant does not point to any

Pennsylvania case that has found that a court cannot convict a person of

drug delivery resulting in death in a case of mixed toxicity.      (See id.).

Rather, in Commonwealth v. Kakhankham, 132 A.3d 986 (Pa. Super.

2015), appeal denied, 138 A.3d 4 (Pa. 2016), this Court held that the

statute, “requires a ‘but-for’ test of causation.”   Kakhankham, supra at

993.

       Here, the parties stipulated that the cause of the victim’s death was

mixed substance toxicity.         (See N.T. Trial, 8/03/16, at 68).       The

Commonwealth’s expert averred that the victim had used alcohol, cocaine,

and heroin prior to his death. (See id. at 89). She stated that the levels of

alcohol and cocaine in the victim’s blood were not at amounts that would

cause a fatality. (See id. at 90, 93). However, she stated that the heroin,

which the victim had used immediately prior to his death, was above fatal

levels.     (See id. at 89-92).   When questioned about causation, Ms. Sell

testified as follows:


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     [Ms. Sell]: . . . Had he not used the heroin, it’s my opinion that
     alcohol of .10 would not have killed him. And the little bit of
     cocaine and the combination of the alcohol would not have killed
     him. Whether he would’ve died with just the morphine and not
     alcohol, I-I can’t say that.

     [The Commonwealth]: So from what you just said then, the
     alcohol and the cocaine, alone or together, would not have
     resulted in death, but when you add heroin to the combination it
     becomes fatal, correct?

     [Ms. Sell]: Correct.

     [The Commonwealth]: And so if he didn’t use heroin he would
     not have died?

     [Ms. Sell]: Correct.

                                 *     *      *

     [Ms. Sell]: . . . If he only had alcohol and he only had cocaine,
     he would not have — in my opinion, he would not have died.

                                 *     *      *

     [The Commonwealth]: But what you can say is the alcohol and
     the cocaine alone didn’t kill him?

     [Ms. Sell]: Correct.

     [The Commonwealth]:         Only when you add heroin to the
     equation does he die?

     [Ms. Sell]: Correct.

(N.T. Trial, 8/03/16, at 94-95, 105, 108). Therefore, the evidence at trial

showed that but-for the victim’s use of heroin, he would not have died.

Thus, the evidence was sufficient to demonstrate that the victim died

because he used heroin sold to him by Appellant.         See Kakhankham,

supra at 993.   Appellant’s first and second issues lack merit.

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      In his final issue, Appellant maintains that he received ineffective

assistance of trial counsel because of a conflict of interest.        (See Anders

Brief, at 9-10; Appellant’s Brief, at 9-11). However, this claim is not ripe for

review.

      Our Supreme Court reaffirmed the holding of Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), in Commonwealth v. Holmes, 79 A.3d

562 (Pa. 2013). In Holmes, our Supreme Court held, “claims of ineffective

assistance of counsel are to be deferred to [PCRA] review; trial courts should

not entertain claims of ineffectiveness upon post[-]verdict motions; and such

claims should not be reviewed upon direct appeal.” Holmes, supra at 576

(footnote omitted).

      The Holmes Court noted two narrow exceptions for “extraordinary

circumstances” to the broader rule, holding “where the trial court, in the

exercise   of   its   discretion,   determines   that   a   claim   (or   claims)   of

ineffectiveness is both meritorious and apparent from the record so that

immediate consideration and relief is warranted,” and allowing review for

“good cause,” such as the shortness of a sentence, of “multiple, and indeed

comprehensive, ineffectiveness claims” if such review is accompanied by a

knowing, voluntarily, and express waiver of PCRA rights.            Id. at 577–78.

Instantly, neither      of these    exceptions applies. Therefore, Appellant’s

ineffective assistance of counsel issue is premature and we decline to




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address the merits. This is without prejudice to Appellant’s right to present

these ineffectiveness claims in a timely PCRA petition.

      Appellant’s issues lack merit.    Further, this Court has conducted an

independent review of the record as required by Anders and Santiago and

finds that no non-frivolous issues exist.

      Judgment of sentence affirmed.          Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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