J-S07041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    MAXIMILLIANO DEJESUS-BATISTA                  :
                                                  :
                       Appellant                  :   No. 1462 MDA 2018

         Appeal from the Judgment of Sentence Entered July 18, 2018
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0005347-2017


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                              FILED MARCH 18, 2019

       Maximilliano     Dejesus-Batista        (Dejesus-Batista)   appeals   from   the

judgment of sentence entered following his jury trial for identity theft and

related crimes. Appellate counsel, Lauren E. Otero (Counsel), has petitioned

to withdraw from representation and has submitted a brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).1 We grant the petition to withdraw and

affirm Dejesus-Batista’s judgment of sentence.



____________________________________________


1 The Anders procedure strikes a balance between an attorney’s duty “to
refuse to prosecute a frivolous appeal,” McCoy v. Court of Appeals of
Wisconsin, Dist. 1, 486 U.S. 429, 435-36 (1988), and ensuring that “an
indigent defendant has the same right to effective representation by an active
advocate as a defendant who can afford to retain counsel of his or her choice.”



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07041-19



                                               I.

       This case involves the fraudulent use of credits cards belonging to Mark

Riegel2 and his wife. On June 1, 2017, at approximately 6:00 a.m., Mr. Riegel

arrived at Body Zone for physical therapy. His session ended a little after

8:00 a.m. and Mr. Riegel realized on the drive home that his wallet was

missing. His bank statements showed that his Mastercard ending in 6146 was

used at an Ephrata Wal-Mart for $2,400. His Visa card ending in 9995 was

used at a Lancaster Wal-Mart for $1,800. The Ephrata Wal-Mart was about a

20-minute drive from Body Zone.

       With   the    assistance    of   Wal-Mart    asset management protection

personnel, the Commonwealth linked these transactions to particular

purchases. Video surveillance showed Dejesus-Batista purchasing gift cards

at the Ephrata Wal-Mart on June 1 at 7:12 a.m.              Wal-Mart’s databases

recorded that a Mastercard ending in 6146 and a Visa card ending in 9995

were used to purchase the cards.

       Because the gift cards could only be used at Wal-Mart or Sam’s Club,

the investigators could determine when the gift cards were used.           Those

transactions were then cross-referenced with video surveillance. Videos of

purchases made with the gift cards on June 1st, 2nd, 3rd and 4th were shown

to the jury. On some of these occasions, Dejesus-Batista was accompanied

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2 His last name is spelled as “Reigle” in the trial transcript, but as “Riegel” in
the exhibits.


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by his girlfriend. On at least one occasion, Dejesus-Batista was not present.

Finally, Dejesus-Batista purchased a Sam’s Club membership which was linked

to a unique member number, photograph and address upon enrollment. He

used the membership to purchase items with the gift cards.

       The parties proceeded to a jury trial on 12 counts dealing with the theft

of the credit cards.3 The trial court granted a motion for judgment of acquittal

at counts three, four, eight and nine. Dejesus-Batista was convicted of the

remaining charges and sentenced to an aggregate period of five and one-half

to 12 years’ incarceration. His post-sentence motions were denied and he

timely appealed.

                                               II.

       Before examining the merits of Dejesus-Batista’s claims as set forth in

his brief, we must first rule on the petition to withdraw. See Commonwealth

v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (“When presented with an

Anders brief, this Court may not review the merits of the underlying issues

without first passing on the request to withdraw.”).           Procedural and

substantive requirements must be satisfied. Procedurally, counsel must (1)

petition the court for leave to withdraw stating that, after making a

conscientious examination of the record, counsel has determined that the
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3 Specifically, the Commonwealth charged Dejesus-Batista with two counts
each of the following crimes: dealing in proceeds of unlawful activities, 18
Pa.C.S. § 5111(a)(1); forgery, 18 Pa.C.S. § 4101(a)(2); theft by deception,
18 Pa.C.S. § 3922(a)(1); receipt of stolen property, 18 Pa.C.S. § 3925(a);
access device fraud, 4106(a)(1)(i); and identify theft, 18 Pa.C.S. § 4120(a).


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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.   See Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.

Super. 2013) (en banc).

      These procedural elements have been met.          Counsel examined the

record, certified her belief that any appeal would be frivolous, and stated that

she provided Dejesus-Batista with a copy of the brief. Additionally, Counsel

attached a copy of the letter sent to Dejesus-Batista informing him of her

conclusions and his right to hire counsel or file his own brief.             See

Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007) (noting

that this Court’s precedents require counsel to attach to a withdrawal petition

a copy of the letter sent to the client).   We next examine the substantive

requirements. The brief accompanying the petition to withdraw 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.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

Santiago, supra at 361).

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       The Anders brief summarizes the factual and procedural history and

identifies three potential issues. It cites to parts of the record which tend to

support the claims and outlines the legal analysis that led Counsel to conclude

that any appeal would be frivolous. Since the brief complies with Santiago,

we consider the three issues raised therein:

       I.     Whether the trial court abused its discretion when it failed
              to overturn the jury’s guilty verdict considering the evidence
              identifying Appellant as the culprit was a blurry photograph
              of an individual covered from head-to-toe.

       II.    Whether the Commonwealth presented sufficient evidence
              pertaining to Dealing in Proceeds from Unlawful Activities
              based on his conviction for Identity Theft, and pertaining to
              whether he had the requisite mind set to commit the crimes.

       III.   Whether the trial court abused its discretion when it
              imposed a consecutive sentence that totaled five and one-
              half (5 1/2) to twelve (12) years on Appellant.

Anders brief at 16.

                                           III.

       The first claim involves a challenge to the weight of the evidence.4 The

argument is premised upon the identification by Daniel McCartin, Dejesus-

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4 In Commonwealth v. Roberts, 133 A.3d 759 (Pa. Super. 2016), we
explained the applicable standard of review as follows:

       A motion for a new trial based on a claim that the verdict is against
       the weight of the evidence is addressed to the discretion of the
       trial court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. Rather, the role of
       the trial judge is to determine that notwithstanding all the facts,



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Batista’s parole officer.5 Mr. McCartin testified that Detective Cory Huntsinger

provided him with two photographs, introduced at trial as Commonwealth

Exhibits 21 and 22.       The former was a photo taken when Dejesus-Batista

signed up for his Sam’s Club membership and the latter was a still photograph

taken from the video showing the initial Ephrata Wal-Mart purchases.

Dejesus-Batista maintains that the photographs could not serve as a basis for

Mr. McCartin’s identification.

       Preliminarily, the Commonwealth argues that the claim was waived, as

the post-sentence motion merely raised a boilerplate challenge to the weight

of the evidence. See Post-Sentence Motion, 7/25/18, at 2 (“Defendant avers

that the evidence [sic] was against the weight of the evidence.”). We agree.

As the Commonwealth notes, a bare-bones challenge to the weight of the

evidence results in waiver. See Commonwealth v. Seibert, 799 A.2d 54,

62 (Pa. Super. 2002) (finding weight claim waived where concise statement

____________________________________________


       certain facts are so clearly of greater weight that to ignore them
       or to give them equal weight with all the facts is to deny justice.

       In order for an appellant to prevail on a challenge to the weight of
       the evidence, the evidence must be so tenuous, vague and
       uncertain that the verdict shocks the conscience of the court.

Id. at 769-70 (citations and quotation marks omitted).

5 The jury was not told of the parties’ specific relationship and Mr. McCartin
informed the jury that their interactions were work-related. N.T., 5/21-22/18,
at 210-11.




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merely stated the “verdict of the jury was against the weight of the credible

evidence as to all of the charges.”).6 Dejesus-Batista has waived his claim by

not specifying the identification by Mr. McCartin as the basis for his weight

claim.

       Even if preserved, we would not grant relief. Our review is not to the

weight of the evidence itself but rather the trial court’s ruling on the weight

claim. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). As such,

our standard of review is distinct and we cannot “revisit[ ] the underlying

question of whether the verdict was against the weight of the evidence.” Id.

at 1056. We, therefore, view the challenged evidence through the lens of the

trial court’s conclusion that the jury’s verdict did not shock its conscience. As

to the Sam’s Club photo, the jury could conclude the photograph depicted

Dejesus-Batista.7     Turning to Commonwealth’s Exhibit 22, that photograph

shows the individual who initially activated the first set of gift cards at the

Ephrata Wal-Mart. While this individual is partially obscuring his features in

____________________________________________


6 The Pa.R.A.P. 1925(b) statement was likewise vague: “The trial court
abused its discretion when it failed to overturn a jury verdict that went against
the weight of the evidence.” Concise Statement, 9/25/18, at 1.

7  In fact, defense counsel conceded the photo was of his client and used it to
illustrate how brazen Dejesus-Batista would have to be. “You see he went to
Sam’s Club, he had his picture taken. You saw that picture. . . . Does it make
sense someone who took credit cards [and] bought gift cards with them would
use the gift card to open an account when they would have to use their own
driver’s license and address to open an account[?]” N.T., 5/21-22/18, at 233.




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the photo, Mr. McCartin’s identification, based on approximately 60

interactions with Dejesus-Batista, did not shock the trial court’s conscience.8

We find no abuse of discretion in that ruling. This claim is frivolous.

                                               IV.

       The second claim pertains to the sufficiency of the evidence supporting

the verdict for the two counts of dealing in proceeds of unlawful activities. The

statute defining the offense reads:

       A person commits a felony of the first degree if the person
       conducts a financial transaction under any of the following
       circumstances:

              (1) With knowledge that the property involved,
              including stolen or illegally obtained property,
              represents the proceeds of unlawful activity, the
              person acts with the intent to promote the carrying on
              of the unlawful activity.

18 Pa.C.S. § 5111(a)(1). The statute also contains the following definitions

which are relevant to this claim:

       “Financial transaction.” A transaction involving the movement
       of funds by wire or other means or involving one or more
       monetary instruments. The term includes any exchange of stolen
       or illegally obtained property for financial compensation or
       personal gain.

       “Unlawful activity.” Any activity graded a misdemeanor of the
       first degree or higher under Federal or State law.


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8 Dejesus-Batista does not address the separate question of whether the jury
could identify him from the photographs. The Anders brief limits its
discussion to the identification given by Mr. McCartin. Even excluding Mr.
McCartin’s testimony, the jury simply had to compare the photos and all the
video surveillance against Dejesus-Batista’s appearance.

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18 Pa.C.S. § 5111(f).

       We agree that the sufficiency claim is frivolous. There is no doubt that

Batista “conduct[ed] a financial transaction,” as that term is explicitly defined

to include “any exchange of stolen or illegally obtained property for financial

compensation or personal gain.” The property in question is gift cards, which

were illegally obtained through the unauthorized use of Mr. Riegel’s credit

cards. Next, the Commonwealth had to prove that Dejesus-Batista conducted

that transaction “With knowledge that the property involved, including stolen

or illegally obtained property, represents the proceeds of unlawful activity[.]”

18 Pa.C.S. § 5111(a)(1). “Unlawful activity” includes “any activity graded a

misdemeanor of the first degree or higher,” and the gift cards represented the

proceeds of his identity theft.9

       The Anders brief sets forth Dejesus-Batista’s complaint that since the

underlying identity theft crime is not financial in nature, this statute was not

intended to encompass his conduct. But as the Anders brief correctly notes,

this Court has rejected the claim that § 5111 must be so narrowly construed.

Commonwealth v. Barnhart, 722 A.2d 1093, 1097 (Pa. Super. 1998)

(“[W]e must conclude that if the legislature had meant to confine Section




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9 The jury was instructed that the unlawful activity in question was identity
theft. N.T., 5/21-22/18, at 260.


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5111’s scope to dealings in drug money it could have easily done so. The

legislature chose, instead, to draft and enact a more wide-reaching statute.”).

       Dejesus-Batista committed identity theft by illegally using credit cards

to obtain gift cards, which he then used in subsequent financial transactions.

Finally, regarding the applicable mens rea, the jury could find this entire

course of conduct was done with “the intent to promote the carrying on of the

unlawful activity.” The sufficiency claim is frivolous.

                                               V.

       The final claim is that the trial court abused its discretion in imposing

sentence.10     We do not reach the merits of this claim.        Challenges to

discretionary aspects of sentencing are not appealable by right and an

appellant must invoke our jurisdiction by satisfying a four-part test. Among




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10Our review of a challenge to the discretionary aspects of sentencing is
governed by the following principles:

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather,
       the appellant must establish, by reference to the record, that the
       sentencing court ignored or misapplied the law, exercised its
       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted).


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the four requirements is establishing that “there is a substantial question that

the sentence appealed from is not appropriate under the Sentencing Code[.]”

Commonwealth v. Bebout, 186 A.3d 462, 470 (Pa. Super. 2018) (citation

omitted). Dejesus-Batista asserts the sentence is inappropriate because it “is

so excessive that it violates the general principles underlying the Sentencing

Guideline[s].” Anders brief at 25.

      We disagree. Dejesus-Batista received consecutive identical sentences

of 33 to 72 months at the convictions for dealing in the proceeds of unlawful

activity. His prior record score was five and the offense gravity score for that

crime is eight. The guidelines call for a sentence of 27 to 33 months in the

standard range, 204 Pa. Code 303.16(a), which Batista received.            That

sentence was presumptively reasonable. See Commonwealth v. Fowler,

893 A.2d 758, 767 (Pa. Super. 2006) (noting that a sentence within the

guideline “is presumptively where a defendant should be sentenced.”). Hence,

Batista’s excessiveness claim relates to the decision to impose the sentences

consecutively, which generally does not raise a substantial question.

      A court’s exercise of discretion in imposing a sentence
      concurrently or consecutively does not ordinarily raise a
      substantial question. Commonwealth v. Mastromarino, 2 A.3d
      581, 587 (Pa.Super.2010). Rather, the imposition of consecutive
      rather than concurrent sentences will present a substantial
      question in only “the most extreme circumstances, such as where
      the aggregate sentence is unduly harsh, considering the nature of
      the crimes and the length of imprisonment.” Commonwealth v.
      Lamonda, 52 A.3d 365, 372 (Pa.Super.2012).

            To make it clear, a defendant may raise a substantial
            question where he receives consecutive sentences

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            within the guideline ranges if the case involves
            circumstances where the application of the guidelines
            would be clearly unreasonable, resulting in an
            excessive sentence; however, a bald claim of
            excessiveness due to the consecutive nature of a
            sentence will not raise a substantial question.

Commonwealth v. Swope, 123 A.3d 333, 338–39 (Pa. Super. 2015)

(quoting Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013)).

Indeed, in Dodge, we cautioned “that a simple citation . . . may not be

sufficient where the facts of the case do not warrant the conclusion that there

is a plausible argument that the sentence is prima facie excessive based on

the criminal conduct involved.” Dodge, 77 A.3d at 1271. That is all Dejesus-

Batista has done and he has failed to present a substantial question.

      In any event, we would not grant relief. Our review of a sentence is

highly deferential, as the “sentencing court is in the best position to determine

the proper penalty for a particular offense based upon an evaluation of the

individual circumstances before it.” Commonwealth v. Walls, 926 A.2d 957,

961 (Pa. 2007) (citation and quotation marks omitted). Since the sentence is

within the guidelines, we may vacate and remand only if we find that “the

case involves circumstances where the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2).

      Walls noted that reasonableness is not statutorily defined and

“commonly connotes a decision that is ‘irrational’ or ‘not guided by sound

judgment.’” Id. at 963. A sentence may be deemed unreasonable for two

reasons.   The first is if the sentencing court did not weigh the “general

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standards applicable to sentencing found in Section 9721, i.e., the protection

of the public; the gravity of the offense in relation to the impact on the victim

and the community; and the rehabilitative needs of the defendant.” Id. at

964 (quoting 42 Pa.C.S. § 9721(b)).            The other is where the sentence is

unreasonable under the guidelines provided by 42 Pa.C.S. § 9781(d), which

directs this Court to consider four factors in assessing whether the sentence

is clearly unreasonable.11

       The instant sentence does not fall under either situation.      As to the

general § 9721 factors, the trial judge clearly weighed them. The prosecutor

noted Dejesus-Batista’s multiple convictions, including a 2013 conviction

involving similar conduct, and requested a lengthy sentence due to failed

rehabilitative attempts.      Dejesus-Batista asked for leniency, citing his age,

family background, employment history and substance abuse issues.              He

presented the testimony of his mother and gave both written and oral

statements.     The trial judge commented at length why she imposed her

sentence, and it is obvious from reviewing these comments that the sentence

was not the product of irrationality. Finally, we have considered all four factors

of § 9781(d) and find no merit to the discretionary claim.



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11The four factors are: “(1) The nature and circumstances of the offense and
the history and characteristics of the defendant; (2) The opportunity of the
sentencing court to observe the defendant, including any presentence
investigation; (3) The findings upon which the sentence was based; and (4)
The guidelines promulgated by the commission.” 42 Pa.C.S. § 9781.

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                                       VI.

     Lastly, pursuant to Commonwealth v. Yorgey, 188 A.3d 1190 (Pa.

Super. 2018) (en banc), we have independently reviewed the record to

identify any preserved, non-frivolous issues which were not raised in the

Anders brief. Finding none, we grant counsel’s petition to withdraw.

     Petition to withdraw granted. Judgment of sentence affirmed.

     Judge Olson joins this memorandum.

     Judge McLaughlin concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/18/2019




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