J-S45017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JORGE GUZMAN-RODRIGUEZ

                            Appellant                No. 2082 MDA 2014


        Appeal from the Judgment of Sentence of November 18, 2014
               In the Court of Common Pleas of Berks County
             Criminal Division at No.: CP-06-CR-0001491-2014


COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JORGE VICTOR GUZMAN-RODRIGUEZ

                            Appellant                No. 2083 MDA 2014


        Appeal from the Judgment of Sentence of November 18, 2014
               In the Court of Common Pleas of Berks County
             Criminal Division at No.: CP-06-CR-0001476-2014


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 08, 2015

       Jorge Victor Guzman-Rodriguez appeals two judgments of sentence,

which were imposed at CP-06-CR-0001491-2014 and CP-06-CR-0001476-

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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2014 after Guzman-Rodriguez was convicted at each case number of

delivery of a controlled substance, possession of a controlled substance with

intent to deliver (“PWID”), and possession of a controlled substance.1

Guzman-Rodriguez’ counsel has filed a petition to withdraw as counsel,

together with an Anders brief.2          We find that Guzman-Rodriguez’ counsel

has satisfied the       Anders/Santiago           requirements and that Guzman-

Rodriguez’ has no meritorious issues to pursue on appeal. Consequently, we

grant counsel’s petition to withdraw as counsel, and we affirm Guzman-

Rodriguez’ judgments of sentence.

       The charges filed against Guzman-Rodriguez at CP-06-CR-0001491-

2014 stem from an incident that occurred on June 10, 2013. In May 2013,

the police were alerted to possible drug trafficking occurring at 305 South 3 rd

Street in Reading, Pennsylvania.           During the course of investigating the

report, the police decided to try and purchase drugs using a confidential

informant and an undercover officer.             On June 10, 2013, Detective Edwin

Santiago, in an undercover capacity, was with a confidential informant who

placed a phone call to a number assigned to a person that was believed to

be involved in the drug trafficking at South 3rd Street. Detective Santiago
____________________________________________


1
     35 P.S.       §   780-113(a)(30)          (delivery   and   PWID),   and   (a)(16),
respectively.
2
     See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).



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and the confidential informant were directed to the 300 block of North 5 th

Street. Detective Santiago drove to that location, and pulled the vehicle to

the side of the road. Shortly thereafter, Guzman-Rodriguez walked across

the street and got into the back of Detective Santiago’s vehicle.      Guzman-

Rodriguez and the informant spoke briefly, and then Detective Santiago

asked Guzman-Rodriguez for the price of a “whole one,” which is a

commonly used term to refer to a ten-pack of heroin.         Guzman-Rodriguez

responded that the price for a “whole one” was fifty dollars.          Guzman-

Rodriguez instructed Detective Santiago to drive around the block.          While

Detective Santiago did so, Guzman-Rodriguez handed the detective ten

packets of heroin.

      Detective Santiago made another purchase of heroin from Guzman-

Rodriguez on June 26, 2013, which served as the basis for the charges filed

at CP-06-CR-0001476-2014.        On that date, Detective Santiago and the

confidential informant were directed to go to 305 South 3rd Street to make

the purchase.    At that location, the detective and informant met Guzman-

Rodriguez in the first floor hallway inside the residence. Guzman-Rodriguez

again sold them ten packets of heroin for fifty dollars.

      Initially, the police did not know Guzman-Rodriguez’s identity.       After

the first purchase, Detective Joseph Walsh took pictures of the people

coming and going from the residence at 305 South 3rd Street.           Guzman-

Rodriguez was one of the individuals that had been photographed at that

location   by   Detective   Walsh.    Additionally,   Detective   Michael   Rowe

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determined through Pennsylvania Department of Transportation Records

that Guzman-Rodriguez listed the address as his residence.            Detective

Santiago reviewed the pictures and records before making the second

purchase of heroin. After the purchase, Detective Santiago confirmed that

Guzman-Rodriguez was the person who had sold him the heroin on both

occasions. Detective Santiago also identified Guzman-Rodriguez at trial.

      As   noted,    Guzman-Rodriguez      was   charged   in   two   separate

informations with an identical set of crimes.    The cases were consolidated

before one trial judge for unitary disposition.       Before trial, Guzman-

Rodriguez filed a motion seeking, inter alia, severance of the two cases for

separate trials.    The trial court denied the motion to sever following a

hearing.

      Following a jury trial, Guzman-Rodriguez was convicted of all three

charges in both cases. In the aggregate, Guzman-Rodriguez was sentenced

to serve three to six years’ imprisonment, and a consecutive three year

period of probation. Guzman-Rodriguez filed a timely post-sentence motion,

in which he argued, inter alia, that the verdict was against the weight of the

evidence. The motion was denied by the trial court.

      On December 8, 2014, Guzman-Rodriguez filed a notice of appeal. On

December 10, 2014, the trial court directed Guzman-Rodriguez to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Guzman-Rodriguez timely filed a concise statement. On January

22, 2015, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

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     Counsel for Guzman-Rodriguez has identified two issues for this

Court’s consideration, but ultimately concludes that the issues have no

discernable merit. Those issues are as follows:

     A. Whether the trial court erred in denying [Guzman-Rodriguez’]
        pretrial motion for severance?

     B. Whether the guilty verdicts were against the weight of the
        evidence presented when the Commonwealth’s witnesses
        failed to credibly establish [Guzman-Rodriguez’] identity?

Anders Brief for Guzman-Rodriguez at 7.

     Because counsel for Guzman-Rodriguez proceeds pursuant to Anders

and Santiago, this Court first must pass upon counsel’s petition to withdraw

before reviewing the merits of the issues presented by Guzman-Rodriguez.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Prior to withdrawing as counsel under Anders, counsel must file a

brief that meets the requirements established by our Supreme Court in

Santiago. The brief must provide the following information:

     (1) a summary of the procedural history and facts, with
     citations to the record;

     (2) reference to anything in the record that counsel believes
     arguably supports the appeal;

     (3)   counsel’s conclusion that the appeal is frivolous; and

     (4) 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.



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      Counsel also must provide a copy of the Anders brief to her client.

Attending the brief must be a letter that advises the client of his rights to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court’s

attention in addition to the points raised by counsel in the Anders brief.”

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see

also Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).

Finally, to facilitate our review of counsel’s satisfaction of his obligations, she

must attach to her petition to withdraw the letter that she transmitted to her

client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.

2005).

      Our review of counsel’s petition to withdraw and the accompanying

brief demonstrates that counsel has satisfied the Anders requirements.

Counsel has provided procedural and factual histories of this case, detailing

the facts and events relevant to this appeal with appropriate citations to the

record.   Anders Brief at 8-13.        Counsel also has articulated Guzman-

Rodriguez’ positions and has analyzed the issues in light of the record with

appropriate citations to the record and case law. Id. at 16-23. Ultimately,

counsel has concluded that Guzman-Rodriguez has no non-frivolous bases

for challenging his sentence. Id. at 24.

      Counsel also has sent Guzman-Rodriguez a letter informing him that

she has identified no meritorious issues to pursue on appeal; that counsel

has filed an application to withdraw as Guzman-Rodriguez’ attorney; and

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that Guzman-Rodriguez may find new counsel or proceed pro se. Counsel

has attached the letter to her petition to withdraw, as required by Millisock.

See Petition to Withdraw as Counsel, 3/18/2015, Exh. A. Accordingly, we

conclude that counsel has complied substantially with Anders’ technical

requirements. See Millisock, 873 A.2d at 751.

        We must now conduct an independent review of the record to

determine whether this appeal is, as counsel claims, wholly frivolous, or if

any meritorious issues may remain.        Santiago, 978 A.2d at 355 (“[T]he

court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds it

may grant counsel’s request to withdraw[.]”) (quoting Anders, 386 U.S. at

744).

        We begin with the issues identified by counsel.         First, Guzman-

Rodriguez would contend that the trial court abused its discretion by denying

his motion to sever the two drug cases.       We agree with counsel that this

issue has no merit.

        Recently, in Commonwealth v. Ferguson, 107 A.3d 206 (Pa. Super.

2015), a panel of this Court set forth a comprehensive discussion of the

standards and principles that govern a challenge to the denial of a motion to

sever as follows:

        “Whether [ ] separate indictments should be consolidated for
        trial is within the sole discretion of the trial court and such
        discretion will be reversed only for a manifest abuse of discretion
        or prejudice and clear injustice to the defendant.”
        Commonwealth v. Robinson, 864 A.2d 460, 481 (Pa. 2004)

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     (quoting Commonwealth v. Newman, 598 A.2d 275, 277 (Pa.
     1991)).    Furthermore, “[an a]ppellant bears the burden of
     establishing such prejudice.” Commonwealth v. Melendez–
     Rodriguez, 856 A.2d 1278, 1282 (Pa. Super. 2004) (en banc).

     The Pennsylvania Rules of Criminal Procedure govern the joinder
     and severance of offenses as follows:

     Joinder—Trial of Separate Indictments or Informations

       (A) Standards

       (1) Offenses charged in separate            indictments    or
       informations may be tried together if:

          (a) the evidence of each of the offenses would be
          admissible in a separate trial for the other and is
          capable of separation by the jury so that there is no
          danger of confusion; or

          (b) the offenses charged are based on the same act
          or transaction.

     Pa.R.Crim.P. 582(A)(1).

     Severance of Offenses or Defendants

       The court may order separate trials of offenses or
       defendants, or provide other appropriate relief, if it
       appears that any party may be prejudiced by offenses or
       defendants being tried together.

     Pa.R.Crim.P. 583. Under Rule 583, the prejudice the defendant
     suffers due to the joinder must be greater than the general
     prejudice any defendant suffers when the Commonwealth’s
     evidence links him to a crime. Commonwealth v. Lauro, 819
     A.2d 100, 107 (Pa. Super. 2003).

     [T]he “prejudice” of which Rule [583] speaks is not simply
     prejudice in the sense that appellant will be linked to the crimes
     for which he is being prosecuted, for that sort of prejudice is
     ostensibly the purpose of all Commonwealth evidence. The
     prejudice of which Rule [583] speaks is, rather, that which would
     occur if the evidence tended to convict [the] appellant only by
     showing his propensity to commit crimes, or because the jury
     was incapable of separating the evidence or could not avoid
     cumulating the evidence.


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     Id. (emphasis in original) (quoting Commonwealth v. Collins,
     703 A.2d 418, 423 (Pa. 1997)). Moreover, “the admission of
     relevant evidence connecting a defendant to the crimes charged
     is a natural consequence of a criminal trial, and it is not grounds
     for severance by itself.” Id. (quoting Collins, 703 A.2d at 423).

     Reading these rules together, our Supreme Court established the
     following test for severance matters:

        Where the defendant moves to sever offenses not based
        on the same act or transaction that have been
        consolidated in a single indictment or information, or
        opposes joinder of separate indictments or informations,
        the court must therefore determine: [1] whether the
        evidence of each of the offenses would be admissible in a
        separate trial for the other; [2] whether such evidence is
        capable of separation by the jury so as to avoid danger of
        confusion; and, if the answers to these inquiries are in the
        affirmative, [3] whether the defendant will be unduly
        prejudiced by the consolidation of offenses.

     Collins, 703 A.2d at 422 (quoting Commonwealth v. Lark,
     543 A.2d 491, 496-97 (Pa. 1988)).

     Pursuant to this test, we must first determine whether the trial
     court abused its discretion in holding that evidence of each of
     the offenses would be admissible in a separate trial for the other.
     In making this determination, we are mindful that “[e]vidence of
     crimes other than the one in question is not admissible solely to
     show the defendant’s bad character or propensity to commit
     crime.” Id.; see Pa.R.E. 404(b)(1) (providing that “[e]vidence
     of a crime, wrong, or other act is not admissible to prove a
     person’s character in order to show that on a particular occasion
     the person acted in accordance with the character”).
     Nevertheless, “[t]his evidence may be admissible for another
     purpose, such as proving motive, opportunity, intent,
     preparation, plan, knowledge, identity, absence of mistake, or
     lack of accident.”       Pa.R.E. 404(b)(2); see Melendez–
     Rodriguez, 856 A.2d at 1283 (explaining that evidence of other
     crimes is admissible to show, inter alia, motive, intent, absence
     of mistake or accident, common scheme or plan, and identity).
     “In order for evidence of prior bad acts to be admissible as
     evidence of motive, the prior bad acts ‘must give sufficient
     ground to believe that the crime currently being considered grew
     out of or was in any way caused by the prior set of facts and


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      circumstances.’”    Melendez–Rodriguez, 856 A.2d at 1283
      (quoting Commonwealth v. Reid, 811 A.2d 530, 550 (Pa.
      2002)). “Additionally, evidence of other crimes may be admitted
      where such evidence is part of the history of the case and forms
      part of the natural development of the facts.” Lauro, 819 A.2d
      at 107 (quoting Collins, 703 A.2d at 423).

Ferguson, 107 A.2d at 211 (citations modified).

      Instantly, the issue of whether Guzman-Rodriguez was the perpetrator

of the drug deals was a central issue in the case.           In fact, Guzman-

Rodriguez’ second issue addresses whether the jury’s conclusion that he was

the perpetrator was against the weight of the evidence.           Hence, Guzman-

Rodriguez continues to maintain that he was not the person who met with

and sold drugs to Detective Santiago and the confidential informant. After

the first transaction, Detective Santiago did not know the identity of the

person who sold him the drugs. However, after additional investigation, the

police were able to identify Guzman-Rodriguez as the suspect, despite

Guzman-Rodriguez’ arguments to the contrary. Identity clearly was an issue

in this case.   Pursuant to Pa.R.E. 403(b), evidence of other bad acts is

admissible to prove identity.   Consequently, the evidence of each crime is

admissible in a separate trial for the other to prove identity.

      Next, we also agree with Guzman-Rodriguez’ counsel that the jury was

capable of separating the two crimes. The events in question occurred more

than two weeks apart.       The transactions differed in that the first one

occurred in a vehicle, while the second one took place inside the residence.

As our Supreme Court has noted, “[w]here a trial concerns distinct criminal


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offenses that are distinguishable in time, space and the characters involved,

a jury is capable of separating the evidence.”     Collins, 703 A.2d at 423.

There is no meaningful risk that the jurors would be confused or incapable of

separating the crimes in their minds.

        Finally, Guzman-Rodriguez was not unduly prejudiced by the trial

court’s decision to allow the jury to hear evidence of the separate, yet

interrelated,   crimes.      Guzman-Rodriguez   committed    a   pair   of   drug

transactions. As was said in Lark, “[This was a] series of crimes committed

by the [appellant] which were all related.       He created the sequence of

events and cannot fairly now demand that the . . . matters be severed and

tried in separate trials.”   Lark, 543 A.2d at 500.    Consequently, the trial

court did not abuse its discretion in consolidating the informations in this

case.

        In the second listed issue, Guzman-Rodriguez would challenge the

weight of the evidence offered by the Commonwealth to prove that he was

the perpetrator of the two drug transactions. “For this Court to reverse the

jury’s verdict on weight of the evidence grounds, we must determine that

the verdict is so contrary to the evidence as to shock one’s sense of justice.”

Commonwealth v. Johnson, 910 A.2d 60, 64 (Pa. Super. 2006) (citation

and internal quotation marks omitted).

        Appellate review of a weight claim is a review of the exercise of
        discretion, not of the underlying question of whether the verdict
        is against the weight of the evidence. Because the trial judge
        has had the opportunity to hear and see the evidence presented,
        an appellate court will give the gravest consideration to the

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      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Id.

      Here, Detective Santiago identified Guzman-Rodriguez as the person

who sold him drugs in each transaction. It is true that Detective Santiago

could not identify Guzman-Rodriguez after the first transaction.      However,

from PennDOT records and surveillance photographs, Detective Santiago

was able to identify Guzman-Rodriguez before and after the second

transaction, as well as at trial. The jury was free to believe all or none of

this evidence.   See Commonwealth v. Hackenberger, 795 A.2d 1040,

1045 (Pa. Super. 2002). We discern nothing in the record that evinces an

abuse of discretion by the trial court’s conclusion that the verdict did not

shock its conscience. Again, we agree with counsel that this issue has no

merit.

      Guzman-Rodriguez has filed multiple responses to counsel’s Anders

brief. Within those pages, Guzman-Rodriguez identifies other claims of error

in the record, including, inter alia, challenges to the jury selection, the

sufficiency of the evidence, and the failure to produce the identity of the

confidential informant. None of the issues that Guzman-Rodriguez identifies

for this Court were included within his Rule 1925(b) statement.         In fact,

counsel for Guzman-Rodriguez only identified the two errors discussed above


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in his statement. Issues that are not raised in a timely concise statement

are waived for purposes of the appeal. See Commonwealth v. McBride,

957 A.2d 752, 755 (Pa. Super. 2008).        Thus, because these issues are

waived and cannot be reviewed by this Court, they necessarily lack merit.

     As set forth above, we have reviewed counsel’s Anders brief carefully,

and find that it complies with the technical requirements imposed by those

precedents. We further find that counsel has taken all steps necessary to

ensure that her client’s interests are protected.   We have conducted an

independent   review   of   the   record    and   conclude   that   counsel’s

characterization and analysis of the record are accurate, and that no non-

frivolous challenges to Guzman-Rodriguez’ judgments of sentence will lie.

Moreover, our review has revealed no other non-frivolous issues that merit

consideration on appeal.




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       Judgments of sentence affirmed.             Counsel’s petition to withdraw

granted.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




____________________________________________


3
       Guzman-Rodriguez also has filed with this Court a petition for the
appointment of counsel. As a result of our conclusions that counsel has
satisfied the requirements of Anders and Santiago, and that counsel is
permitted to withdraw as counsel, Guzman-Rodriguez no longer is entitled to
court-appointed counsel. Guzman-Rodriguez’ petition is denied.



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