J-S73035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
LEONARD MONTALVO-RIVERA,                    :
                                            :
                    Appellant               :            No. 493 MDA 2014

       Appeal from the Judgment of Sentence entered on January 3, 2014
                in the Court of Common Pleas of Luzerne County,
                 Criminal Division, No. CP-40-CR-0003368-2012

BEFORE: BOWES, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED JANUARY 13, 2015

        Leonard    Montalvo-Rivera   (“Montalvo-Rivera”)    appeals   from   the

judgment of sentence entered following his conviction of robbery of a motor

vehicle, criminal conspiracy to commit robbery of a motor vehicle,

conspiracy to commit robbery, conspiracy to commit theft by unlawful

taking, and simple assault.1 Additionally, Montalvo-Rivera’s court-appointed

counsel, Matthew P. Kelly, Esquire (“Attorney Kelly”), has filed a Petition to

Withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738, 744 (1967). We grant Attorney Kelly’s Petition to

Withdraw, and affirm the judgment of sentence.

        The trial court concisely set forth the history underlying this appeal as

follows:



1
    See 18 Pa.C.S.A. §§ 3702(a), 903(c), 2701(a)(3).
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            Subsequent to a bench trial occurring on October 29,
      2013, [Montalvo-Rivera] was found guilty of [the above-
      described offenses, following] a carjacking [that he and three
      other co-conspirators (collectively referred to as “the co-
      conspirators”) committed on the side of the road of Interstate 81
      (“I-81”), outside of Kingston, Pennsylvania,] on June 26, 2012.
      On November 1, 2013[,] the trial … court announced [a guilty]
      verdict [] on all of the five counts contained in the criminal
      information. Sitting as a fact-finder, the trial judge additionally
      found [that Montalvo-Rivera] visibly possessed a firearm or
      replica of a firearm at the time of the commission of these
      offenses[,] which placed the victim[, MaryAnna Milner
      (“Milner”),] in reasonable fear of death or serious bodily injury.

Trial Court Opinion, 5/7/14, at 1 (some capitalization omitted).

      On January 3, 2014, the trial court sentenced Montalvo-Rivera to serve

an aggregate prison term of 60 to 160 months, followed by 24 months of

probation. Montalvo-Rivera timely filed a Notice of Appeal, after which the

trial court appointed Attorney Kelly to represent Montalvo-Rivera on appeal.

      The trial court ordered Montalvo-Rivera to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and Montalvo-Rivera

timely complied.2   In response, the trial court issued a Pa.R.A.P. 1925(a)

Opinion, ruling that Montalvo-Rivera had waived his sufficiency challenge by

failing to develop it with sufficient specificity.   See Trial Court Opinion,

5/7/14, at 2-3.



2
  In the Rule 1925(b) Concise Statement, Attorney Kelly raised the following
claim: “Whether there is sufficient evidence to convict [Montalvo-Rivera] of
robbery of a motor vehicle; criminal conspiracy to commit robbery of a
motor vehicle; criminal conspiracy to commit robbery; conspiracy to
[commit] theft by unlawful taking; and simple assault[?]”           Concise
Statement, 4/21/14 (capitalization omitted).


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      Subsequently, Attorney Kelly filed with this Court an Anders Brief and

Petition to Withdraw as counsel, opining that the sufficiency challenge that

Montalvo-Rivera wished to raise on appeal was wholly frivolous and that

there are no other meritorious issues to be presented.3 Before addressing

Montalvo-Rivera’s      sufficiency   challenge,   we   must   determine   whether

Attorney Kelly has complied with the dictates of Anders and its progeny in

petitioning to withdraw from representation.

      Pursuant to Anders, when counsel believes that an appeal is frivolous

and wishes to withdraw from representation, he must do the following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record and
      interviewing the defendant, counsel has determined the appeal
      would be frivolous, (2) file a brief referring to any issues in the
      record of arguable merit, and (3) furnish a copy of the brief to
      defendant and advise him of his right to retain new counsel or to
      raise any additional points that he deems worthy of the court’s
      attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

      Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders brief 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

3
   Montalvo-Rivera did not retain alternate counsel for this appeal, nor did he
file a response to the Petition to Withdraw.


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      case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).                 “Once

counsel has satisfied the Anders requirements, it is then this Court’s duty to

conduct its own review of the trial court’s proceedings and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)

(citation and brackets omitted).

      Our review of Attorney Kelly’s Anders Brief and Petition to Withdraw

reveals that he has substantially complied with the requirements of

Anders/Santiago.4     See Commonwealth v. O’Malley, 957 A.2d 1265,

1267 (Pa. Super. 2008) (stating that substantial compliance with the

requirements to withdraw as counsel will satisfy the Anders criteria).

Additionally, Attorney Kelly has properly (1) provided Montalvo-Rivera with a

copy of both the Anders Brief and Petition to Withdraw; and (2) appended

to the Petition to Withdraw a copy of the letter that he sent to Montalvo-

Rivera advising him of his right to retain new counsel, proceed pro se, or

raise any additional points that he deems worthy of this Court’s attention.

Accordingly, we next examine the record to make an independent

determination of whether Montalvo-Rivera’s appeal is, in fact, wholly

frivolous.


4
 Attorney Kelly did not provide a summary of the relevant facts in his
Anders Brief.


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      As mentioned above, the sole issue that Montalvo-Rivera presented in

his Rule 1925(b) Concise Statement was a vague challenge to the sufficiency

of the evidence supporting his convictions. It is well-established that

       when challenging the sufficiency of the evidence on appeal,
       the [a]ppellant’s [concise] statement must specify the
       element or elements upon which the evidence was insufficient
       in order to preserve the issue for appeal. Such specificity is
       of particular importance in cases where[, as here,] … the
       [a]ppellant was convicted of multiple crimes[,] each of which
       contains numerous elements that the Commonwealth must
       prove beyond a reasonable doubt.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations

and quotation marks omitted).        If the appellant does not specify such

elements, the sufficiency claim is deemed waived. Id. It is also well settled

that “[w]hen the appellant provides a concise statement which is too vague

to allow the trial court an opportunity to identify the issues raised on appeal,

he/she has provided the functional equivalent of no Concise Statement at

all.” Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008)

(citations and internal quotation marks omitted); see also Pa.R.A.P.

1925(b)(4)(ii) (providing that “[t]he Statement shall concisely identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.” (emphasis added)).

      Here, Montalvo-Rivera’s Concise Statement failed to specify the

element or elements involved in his sufficiency challenge. Based upon this

deficiency, the trial court determined that         Montalvo-Rivera’s Concise

Statement was too vague to allow proper review of his claim of insufficient


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evidence. See Trial Court Opinion, 5/7/14, at 2-3; see also Gibbs, supra.

Despite this defect, our independent review requires us to address the

merits of Montalvo-Rivera’s sufficiency challenge.

      In the Anders Brief, Attorney Kelly explains that Montalvo-Rivera

contends that his above-mentioned convictions were not supported by

sufficient evidence for the following reasons:

           [Montalvo-Rivera] points to the testimony of [Milner,]
      wherein she could not identify the perpetrators, specifically
      [Montalvo-Rivera]. Milner also could not specify which of the
      perpetrators did what at the scene.

            [Montalvo-Rivera] further notes the testimony of [his] co-
      defendant, Jean Carlos Ventura-Betancourt ([“]Betancourt[”]).
      Betancourt admitted [that,] while he was charged with the same
      offenses as [Montalvo-Rivera], he was given a “deal” by the
      Commonwealth to testify[,] thereby [undermining Betancourt’s]
      credibility.

Anders Brief at 6 (citations omitted).

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.   In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt


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      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact[,] while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Melvin, 2014 PA Super 181, at *83 (Pa. Super. 2014)

(citation omitted).   Moreover, in every criminal case, “[p]roof beyond a

reasonable doubt of the identity of the accused as the person who

committed the crime is essential to a conviction.”          Commonwealth v.

Hickman, 309 A.2d 564, 566 (Pa. 1973).

      Here, the transcript of the bench trial establishes that, in the early

morning hours of June 26, 2012, Milner pulled her car off to the side of I-81,

after an argument erupted between her and her husband.              See N.T.,

10/29/13, at 36. Milner’s husband stormed off, leaving Milner alone in the

car. Id. at 37. A short time later, another car, a silver Hyundai, pulled over

in front of Milner’s car, alongside I-81.   Id. at 37-38.    Four Hispanic men

exited the Hyundai and approached Milner, who was still behind the wheel of

her car. Id. at 39-40. After briefly questioning Milner through the driver’s

side window, three of the men lifted up their shirts and pointed what she

believed to be guns at Milner.       Id. at 41.   Milner complied with their

demands to exit the car, and pleaded with them to not shoot her because

she has a baby at home.     Id. at 41-42. Milner stated that the men then

split up into groups of two and drove both of the cars away, at which time

Milner ran for help. Id. at 43-44.


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     Betancourt testified as a witness for the Commonwealth and admitted

his involvement in the crime. Id. at 54-55, 60-61. Betancourt stated that

he, Montalvo-Rivera, and the other two co-conspirators had been drinking

heavily earlier on in the evening, and that at some point, the group decided

to go to a nearby Wal-Mart store to buy more beer, with Montalvo-Rivera

driving the Hyundai. Id. at 54-57. Betancourt stated that, while inside the

store, one of the co-conspirators stole several bb guns.     Id. at 57, 113.

According to Betancourt, while the group was driving back to their residence

in Hazleton, they were inebriated and “talking about taking a car, [or]

robbing a gas station[.]”   Id. at 59.   While driving on I-81, the men saw

Milner’s car pulled off to the side of the road, and Montalvo-Rivera decided

to pull over. Id. According to Betancourt, he, Montalvo-Rivera, and the two

other co-conspirators exited their car, approached Milner, and each pointed

a bb gun at her and demanded that she exit her car.            Id. at 59-60.

Betancourt stated that Montalvo-Rivera was “in charge” of the group of co-

conspirators, in that Montalvo-Rivera was giving them orders concerning

what to do during the carjacking.        Id. at 61.   Betancourt stated that,

pursuant to Montalvo-Rivera’s directives, Montalvo-Rivera and one of the co-

conspirators got into Milner’s car, and Betancourt and the other co-

conspirator returned to the Hyundai.     Id. at 61. According to Betancourt,




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Montalvo-Rivera got into the driver’s seat of Milner’s car and drove it away.

Id.5

       Montalvo-Rivera correctly asserts that Milner was unable to identify

him as one of the perpetrators, nor could she identify any of the co-

conspirators. Id. at 54. Nevertheless, Montalvo-Rivera testified at trial and

admitted that he was driving the Hyundai, and that he got out of the car

with the other co-conspirators and approached Milner. Id. at 101, 111, 114.

However, contrary to Betancourt’s testimony, Montalvo-Rivera testified that

he never pointed a weapon at Milner, and that he decided to immediately

return to the Hyundai upon seeing the co-conspirators pointing weapons at

Milner. Id. at 103, 115-18.

       Here, the trial court judge, as the fact-finder, ostensibly credited the

testimony of Milner and Betancourt, and discredited that of Montalvo-Rivera.

We may not substitute our credibility determination for that of the fact-

finder.   See Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013).

Moreover, to the extent that there were conflicts between the testimony of

Montalvo-Rivera and Betancourt, this issue goes to the weight of the

evidence, not its sufficiency, and the trial court judge assessed the weight, if

any, to be given this evidence. See Commonwealth v. Ratushny, 17 A.3d


5
  Shortly after learning of the carjacking, the Pennsylvania State Police
(“PSP”) responded to the scene, eventually found Montalvo-Rivera and the
co-conspirators hiding in the woods nearby, and arrested them. N.T.,
10/29/13, at 85-86. Upon further investigation, the PSP found six unloaded
bb guns inside of the Hyundai. Id. at 88-89.


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1269, 1272 (Pa. Super. 2011) (stating that it is exclusively the province of

the fact-finder to determine the weight to be accorded conflicting evidence).

     Accordingly, we conclude that Montalvo-Rivera’s sufficiency challenge

lacks merit, and our independent review discloses no non-frivolous issues

that he could present on appeal. Thus, we grant Attorney Kelly permission

to withdraw under the precepts of Anders, and affirm the judgment of

sentence.

     Petition to Withdraw as counsel granted; judgment of sentence

affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2015




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