J-S07035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

FELIX O. RODRIGUEZ-SAEZ, JR.

                            Appellant                     No. 1129 MDA 2014


                Appeal from the Judgment of Sentence June 11, 2014
                    In the Court of Common Pleas of Berks County
                 Criminal Division at No(s): CP-06-CR-0004210-2013


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                     FILED APRIL 22, 2015

        Felix O. Rodriguez-Saez, Jr., appeals from the judgment of sentence

entered June 11, 2014, in the Berks County Court of Common Pleas. The

trial   court    imposed    an   aggregate     sentence   of   three   to   12   years’

incarceration, following Rodriguez-Saez’s jury conviction of possession with

intent to deliver (“PWID”) heroin and two counts of possession of controlled

substances (heroin and cocaine).1              Contemporaneous with this appeal,

counsel has filed a petition to withdraw from representation and an Anders

brief. See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.

Santiago, 978 A.2d 349, 361 (Pa. 2009).            Counsel’s Anders brief identifies

three issues for our review:           (1) the excessiveness of Rodriguez-Saez’s
____________________________________________


1
    35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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sentence; (2) the lack of minorities in Rodriguez-Saez’s jury pool; and (3)

the ineffective assistance of trial counsel. For the reasons set forth below,

we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

     The facts underlying Rodriguez-Saez’s arrest and conviction are as

follows. On August 27, 2013, Detectives David McQuate and Michael Rowe,

County Detectives with the Berks County District Attorney’s Office, were

conducting surveillance of the zero hundred block of Neversink Street in

Reading, Pennsylvania. At approximately 12:52 p.m., they observed a man

arrive on a BMX style bicycle. He had a conversation with another individual

wearing a white tank top, later identified as Rodriguez-Saez. The man on

the bike pulled away, but circled and came back to the curb line. Meanwhile,

Rodriguez-Saez walked to a fountain on Neversink Street, and knelt down.

He then returned to the man on the bicycle.     At that time, the detectives

observed the man on the bicycle take money from his waistband and engage

in a hand-to-hand transaction with Rodriguez-Saez. After the man on the

bike left the area, the detectives continued surveillance of Rodriguez-Saez

for approximately 30 minutes, during which time he walked into a

breezeway between 6 and 8 Neversink Street several times.         See N.T.,

6/11/2014, at 9-26.

     The detectives radioed a description of Rodriguez-Saez to the arrest

team, which included Detective John Lackner. When Detective Lackner

approached, Rodriguez-Saez was with a Hispanic female and counting

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$12.00 he held in his hand.            The detective engaged Rodriguez-Saez in

conversation,2 and while doing so, noticed two rubber bands on his fingers,

which the detective immediately recognized as the type used in heroin

packaging.3     When Detective Lackner began talking to him about heroin,

Rodriguez-Saez admitted that he sold heroin to support his own habit. As

the conversation continued, Rodriguez-Saez claimed he was only a user of

the drug, not a seller. Rodriguez-Saez was then placed under arrest. See

id. at 33-37.

       Upon a search incident to arrest, the officers recovered two working

cell phones, two blue glassine packets containing heroin, and $83.00 in U.S.

currency from Rodriguez-Saez’s person. No paraphernalia typical of a heroin

user was recovered on or near Rodriguez-Saez.          While Detective Lackner

was talking to the suspect, other officers searched the fountain area and

breezeway, where they recovered additional packets of heroin and cocaine.

Id. at 37-44.

       As noted above, Rodriguez-Saez was charged with PWID and two

counts of possession of controlled substances. The case proceeded to a jury

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2
  During trial, Detective Lackner testified he provided Rodriguez-Saez with
Miranda warnings, and the suspect agreed to speak with him without an
attorney present. See N.T., 6/11/2014, at 34. See also Miranda v.
Arizona, 384 U.S. 486 (1966).
3
  When Detective Lackner asked Rodriguez-Saez about the rubber bands, he
replied that he used them to braid hair. See N.T., 6/11/2014, at 34.



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trial, and on June 11, 2014, the jury returned a verdict of guilty on all

charges.    Rodriguez-Saez was sentenced that same day4 to a term of two

and one-half to 10 years’ imprisonment for PWID,5 and a consecutive six to

24 months’ imprisonment for possession of cocaine.           The remaining

possession charge merged for sentencing purposes.

       Rodriguez-Saez filed a post-sentence motion seeking reconsideration

of his sentence,6 which was denied by the trial court on June 24, 2014. This

timely appeal followed.7

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4
  The record reveals that a presentence investigation report was completed
prior to trial, and reviewed by the trial court before sentencing. See N.T.
Sentencing, 6/11/2014, at 2.
5
  We note that prior to trial, the Commonwealth filed notice of its intention
to invoke the mandatory minimum sentencing provision in 18 Pa.C.S. §
6317, which provides for a minimum two-year sentence when, inter alia, a
defendant is convicted of selling drugs within 1,000 feet of a school. 18
Pa.C.S. § 6317(a). However, on the day of trial, the trial court, upon motion
of the Commonwealth, entered an order amending the criminal information
so that the PWID charge would “NOT include the language ‘within 1,000 feet
of a school.’” Order, 6/11/2014. Moreover, the mandatory minimum
provision was never discussed during the sentencing hearing. Accordingly, it
appears that the Commonwealth did not seek the two-year mandatory
minimum sentence in this case.
6
  Although the post sentence motion was untimely filed, counsel averred that
he had been away on vacation, and upon his return on June 23, 2014,
received a letter from Rodriguez-Saez requesting he file post-sentence
motions. See Post-Sentence Motion to Modify or Reconsider Sentence,
6/24/2014, at ¶ 3. The trial court subsequently denied the motion, and
Rodriquez-Saez filed a timely notice of appeal on July 8, 2014.
7
  On July 16, 2014, the trial court ordered Rodriguez-Saez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)


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      When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

of the substantive issues raised on appeal. Commonwealth v. Cartrette,

83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Here, our review of the

record reveals counsel has substantially complied with the requirements for

withdrawal outlined in Anders, supra, and its progeny, by (1) filing a

petition for leave to withdraw, in which she states her belief that the appeal

is frivolous, (2) filing an Anders brief pursuant to the dictates of Santiago,

supra, (3) furnishing a copy of the Anders brief to Rodriguez-Saez, and (4)

advising Rodriguez-Saez of his right to retain new counsel or proceed pro se.

Cartrette, supra, 83 A.3d at 1032. Further, Rodriguez-Saez has filed a pro

se response to counsel’s Anders brief, in which he expounds upon the

claims raised in the Anders brief, and also argues the trial court erred in

failing to recognize his pro se filings.          Accordingly, we will proceed to

examine the record and make an independent determination of whether the

appeal is wholly frivolous.

                       _______________________
(Footnote Continued)

Thereafter, on August 1, 2014, trial counsel filed a petition to withdraw
stating that Rodriquez-Saez wished to assert counsel’s ineffectiveness on
appeal. The trial court granted counsel’s motion, and appointed present
counsel, Abby L. Rigdon, Esq., to represent him on appeal. After receiving
an extension of time to file a Rule 1925(b) statement, on September 3,
2014, Rigdon filed a concise statement noting her intent to seek permission
to withdraw pursuant to Anders. See Pa.R.A.P. 1925(c)(4).



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       The   first   issue    identified   in   the   Anders   brief   challenges   the

discretionary aspects of Rodriguez-Saez’s sentence.8 “A challenge to the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citation

omitted).    In order to reach the merits of such a claim, this Court must

determine:

       (1) whether appellant has filed a timely notice of appeal; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence; (3) whether
       appellant’s brief has a fatal defect; and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).         Here, Rodriguez-Saez filed a post-sentence motion

challenging the discretionary aspects of his sentence, as well as a timely

direct appeal. Moreover, the Anders brief includes the requisite statement

pursuant to Pa.R.A.P. 2119(f), setting forth the reasons relied upon for

allowance of appeal.         Therefore, we may proceed to determine whether

Rodriguez-Saez has set forth a substantial question that his sentence is


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8
 “Sentencing is a matter vested in the sound discretion of the judge, and
will not be disturbed on appeal absent a manifest abuse of discretion.”
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).




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inappropriate under the Sentencing Code. See Commonwealth v. Titus,

816 A.2d 251, 255 (Pa. Super. 2003).

     A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). Here, the Anders brief sets forth a claim that Rodriguez-

Saez’s sentence was excessive because the trial court failed to properly

consider certain mitigating factors, and imposed an aggravated range

sentence “without proper reasons, focusing primarily on [Rodriguez-Saez’s]

prior record which was already taken into account by the prior record score.”

Anders Brief at 12. Further, the Anders brief asserts that the imposition of

consecutive sentences was “an extremely harsh punishment for this

particular [defendant,]” and that, in doing so, the trial court “totally

disregarded the character and rehabilitative needs of [Rodriguez-Saez.]” Id.

at 12-13.

     However, the only claims raised in Rodriguez-Saez’s post-sentence

motion challenged the court’s failure to consider mitigating factors and its

imposition of consecutive, rather than concurrent, sentences.     See Post-

Sentence Motion to Modify or Reconsider Sentence, 6/24/2014. Therefore,

any other claims are waived due to Roriguez-Saez’s failure to include them

in the post-sentence motion. See Commonwealth v. Mann, 820 A.2d 788,

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794 (Pa. Super. 2003) (holding appellant’s failure to raise “the specific claim

regarding the sentencing court’s alleged failure to state the reasons for his

sentence on the record” either at sentencing or in his post-sentence motion

waives the claim for appellate review), appeal denied, 831 A.2d 599 (Pa.

2003).

      Moreover, neither of the claims included in the motion raise a

substantial question for our review.     See Commonwealth v. Moury, 992

A.2d 162, 175 (Pa. Super. 2010).         Furthermore, we note that where, as

here, the trial court had the benefit of a presentence investigation report, we

will presume it was “aware of all appropriate sentencing factors and

considerations.”   Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (citation omitted). Thus, we agree with counsel’s assessment

that the first issue identified in the Anders brief is meritless.

      The second issue identified in the Anders brief challenges the lack of

minorities in Rodriguez-Saez’s jury pool. Specifically, Rodriguez-Saiz, who is

Hispanic, asserts that “the jury procedure used in his case selectively

excludes minorities” and resulted in a jury pool with no minority jurors.

Anders Brief at 13.

      With regard to such a challenge, our Supreme Court has explained:

      “Defendants are not entitled to a jury of any particular
      composition, but the jury wheels, pools of names, panels, or
      venires from which juries are drawn must not systematically
      exclude distinctive groups in the community and thereby fail
      to be reasonably representative thereof.” Taylor v. Louisiana,
      419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690, 703
      (1975) (citations omitted; emphasis added).

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      In order to establish a prima facie violation of the requirement
      that the jury array fairly represent the community, a defendant
      must show that: (1) the group allegedly excluded is a distinctive
      group in the community; (2) the representation of this group in
      venires from which juries are selected is not fair and reasonable
      in relation to the number of such people in the community; and
      (3) this underrepresentation is due to systematic exclusion of
      the group in the jury selection process. Duren v. Missouri, 439
      U.S. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 586-87.
      “Systematic” means caused by or inherent in the system by
      which juries were selected. Id. at 366-67, 99 S.Ct. at 669-70,
      58 L.Ed.2d at 588.

Commonwealth v. Craver, 688 A.2d 691, 696 (Pa. 1997) (emphasis

supplied), cert. denied, 522 U.S. 834 (1997). Furthermore,

      [p]roof is required of an   actual discriminatory practice in the jury
      selection process, not       merely under-representation of one
      particular group. The       defendant bears the initial burden of
      presenting prima facie      evidence of discrimination in the jury
      selection process.

Comonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2003), cert. denied,

543 U.S. 1008 (2004).

      In the present case, Rodriguez-Saez has offered no evidence to

support his contention that (1) his jury was devoid of members of Hispanic

descent, or (2) the juror selection process utilized by Berks County

systemically excludes potential Hispanic jurors. Accordingly, this claim fails.

See Id. (concluding appellant failed to establish constitutional violation

when he “presented evidence to suggest that African–Americans were

underrepresented, [but failed to] offer[] evidence or argument revealing

systematic exclusion.”).




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      In his pro se response to counsel’s Anders brief, Rodriguez-Saez

further asserts:

      [T]he lack of minorities in the pool was not the issue that he
      wanted to raise in this appeal, but rather the fact that there was
      (sic) minorities in the fifty (50) plus potential jurors, and his
      rights were violated, (mainly due process), when [he] was not
      allowed or permitted to select jurier (sic) of any race or ethnic
      background, mainly Hispanics.

Pro Se Amended Brief at unnumbered 3, ¶ VII. In addition, Rodriguez-Saez

claims the trial court asked the potential jurors an improper question,

namely, whether they believed they could impartially judge a Hispanic

defendant. Id.

      We conclude these additional claims are waived because the notes of

testimony from Rodriguez-Saez’s jury trial do not include the jury voir dire.

See N.T., 6/11/2014, at 7 (noting that jury voir dire was not transcribed).

It is the appellant’s duty to request all transcripts required for appeal, or, if

none is available, to prepare a statement in absence of the proceedings.

See Pa.R.A.P. 1911(a), 1923.      Thus, no relief is warranted on any of the

claims related to Rodriguez-Saez’s jury composition or selection process.

      The last issue identified in the Anders brief challenges the ineffective

assistance of counsel.   However, it is well-established that ineffectiveness

claims must be deferred until collateral review.       In Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013), the Pennsylvania Supreme Court

reaffirmed the general rule first set forth in Commonwealth v. Grant, 813

A.2d 726 (Pa. 2002), that “claims of ineffective assistance of counsel are to


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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, 79 A.3d at 576. Although

the Holmes Court recognized two exceptions to that general rule, neither is

applicable here.9 Accordingly, we dismiss Rodriguez-Saez’s challenge to the

ineffectiveness of trial counsel without prejudice to him to raise it in a timely

collateral proceeding.

       Rodriguez-Saez raises one additional claim in his pro se response to

counsel’s Anders brief, that is, whether the trial court erred in failing to

consider his pro se filings submitted before counsel petitioned to withdraw.

We remind Rodriguez-Saez that “[n]o defendant has a right to hybrid

representation, either at trial or on appeal.” Comonwealth v. Padilla, 80

A.3d 1238, 1259 (Pa. 2013), cert. denied, 134 S. Ct. 2725 (U.S. 2014).

Therefore, the trial court properly declined to consider Rodriquez-Saez’s pro

se filings when he was represented by counsel.




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9
  The Holmes Court limited those exceptions to the following: (1) where
the trial court determines that a claim of ineffectiveness is “both meritorious
and apparent from the record so that immediate consideration and relief is
warranted[;]” or (2) where the trial court finds “good cause” for unitary
review, and the defendant makes a “knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA.” Holmes, supra, 79
A.3d at 564, 577 (footnote omitted).



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     Accordingly, because we agree with counsel’s assessment that

Rodriguez-Saez’s appeal is wholly frivolous, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2015




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