Com. v. Rivera, E.

J-S13001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

EMILIO J. RIVERA,

Appellant No. 509 WDA 2013

Appeal from the Judgment of Sentence Entered November 15, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014290-2011

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 16, 2015

Appellant, Emilio J. Rivera, appeals from the judgment of sentence of

50 to 100 years’ incarceration, imposed after a jury convicted him of various

offenses, including burglary, robbery (serious bodily injury), unlawful

restraint, and recklessly endangering another person (REAP). On appeal,

Appellant seeks to challenge the sufficiency and weight of the evidence

supporting his convictions, as well as the discretionary aspects of his

sentence. Additionally, his counsel, Christy P. Foreman, Esquire, seeks

permission to withdraw her representation of Appellant pursuant to Anders

v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended

in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,

we agree with counsel that Appellant’s claims are frivolous. Accordingly, we
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affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

The trial court set forth the facts of this case as follows:

On April 4, 2011, Tasha Grayson and Keith Mullen were
watching television at home while their two children slept
upstairs, at 858 Miller Avenue in the City of Clairton, Allegheny
County. At approximately 10:30 P.M., Grayson and Mullen heard
a loud bang in the kitchen, which Mullen investigated. While
Mullen was looking out the back window, a man started banging
on the kitchen door, yelling, "This is the FBI. Open up." Mullen
went to the basement to get their dog and Grayson went
upstairs to the kids’ room.

As the man outside continued to knock, Mullen opened the
door, and Appellant and an accomplice pushed their way into the
home. Appellant and his accomplice turned Mullen around and
the accomplice put a gun to Mullen’s head. Appellant went
upstairs and brought Grayson and her children downstairs at
gunpoint. Appellant met his accomplice in the kitchen, and they
forced everyone down into the basement at gunpoint. Once in
the basement Appellant ordered everyone to lay [sic] on their
stomachs. Appellant and his accomplice looked around the
basement for drugs, knowing that Mullen sold cocaine from the
house. Appellant found Mullen’s bag of cocaine on top of the
refrigerator, but Appellant’s accomplice became agitated and
demanded money and more drugs. Mullen responded that was
all he had, and “I don't have that stuff.” In response Appellant
grabbed their four year old daughter and put a gun to her head,
asking Mullen, “Do you love her?” Appellant next grabbed
Grayson by the neck, put the gun in her mouth, and asked
Mullen, “Do you love her?” Mullen again stated that he did not
have what they wanted, but Grayson told Appellant, “I have
some money upstairs on the side of my bed, take it and go.”

Appellant ran upstairs and searched the bedroom but
returned after a few minutes and Appellant and his accomplice
ordered everyone up to the children’s room. Appellant’s
accomplice hit Mullen in the head several times with his
revolver until Grayson yelled at him to stop and she would
show them where the money was. Appellant’s accomplice
brought Mullen back down to the basement at gunpoint.

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Appellant grabbed Grayson by the shirt and took her to her
bedroom where he made her retrieve approximately $700
for him. They returned to the children’s room and Appellant
began to undress Grayson.
The neighbors were able to hear struggling and yelling
through the walls of the duplex which comprised 858 and
860 Miller Avenue, and they eventually became alarmed
and called the police. In response to a possible home
invasion call, City of Clairton police officers James Kuzak,
Matthew McDanel, and Jonathon Steiner arrived on scene in
separate vehicles and proceeded to the residence. The
three officers surrounded the home. Officer Kuzak
approached the rear door and knocked loudly, prompting
Appellant to bring Grayson downstairs to the kitchen door.
Officer Kuzak announced “this is Clairton police open up.”
Appellant told Grayson to tell the officer that everything
was okay and to go away, and she did so. Officer Kuzak
responded, “This is Clairton police. If you don't open up,
we're coming in.” Grayson again told Officer Kuzak that she
was fine, as instructed by Appellant, but the officer
continued to knock and attempt to gain entry. Appellant’s
accomplice came up to the kitchen from the basement and
told Appellant that they were going to have to shoot their
way out, but Appellant wanted to wait it out. Appellant then
left Grayson and his accomplice in the kitchen and briefly
went into the living room.
Appellant’s accomplice placed his hand on the door
handle, counted to three, and then opened the door and
shot Officer Kuzak four to six times before jumping over
Officer Kuzak’s fallen body and running away. Appellant
followed and both fled toward an alley behind the house.
Officers Steiner and McDanel both began to pursue
Appellant and his accomplice, but Officer McDanel stopped
in the backyard when he heard Officer Kuzak faintly state
that he was injured. Officer McDanel approached Officer
Kuzak and placed an “officer down” call for assistance.
Officer Steiner was unable to catch Appellant or his
accomplice in the alley, and returned to the scene. Officer
Kuzak was unable to move and was having difficulty

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breathing. Officer McDanel carried Officer Kuzak to the front
of the house to await the medics while Officer Steiner
provided cover.
Officer Kuzak was transported to Mercy Hospital where
he underwent several emergency surgeries that were
ultimately successful in saving his life. However, Officer
Kuzak was shot several times by Appellant’s accomplice:
(1) one bullet struck him in the hand which disarmed him;
(2) two bullets struck him in the center of his bulletproof
vest; and, (3) one bullet struck him in the upper chest
above the bulletproof vest. The bullet that entered Officer
Kuzak’s upper chest broke his spinal cord, causing
permanent paralysis.
Following witness interviews and information received
through a wire worn by a confidential informant, Appellant
was interviewed by police. Appellant gave a statement
acknowledging his involvement in the home invasion, but
placed primary blame on his accomplice.
Trial Court Opinion (TCO), 6/12/14, at 6-10 (citations to the record and

footnote omitted).

Appellant was arrested and charged with two counts of attempted

homicide, two counts of assault of a law enforcement officer, one count of

burglary, four counts of robbery (serious bodily injury), four counts of

aggravated assault, one count of attempted rape, one count of conspiracy,

four counts of unlawful restraint, one count of indecent assault, five counts

of REAP, and one count of impersonating a public servant. See TCO at 2-3.

On July 24, 2012, Appellant proceeded to a jury trial, at the conclusion of

which he was found guilty of one count of burglary, four counts of robbery,

four counts of unlawful restraint, four counts of REAP, and not guilty of the

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remaining counts. On November 15, 2012, Appellant was sentenced to an

aggregate term of 50 to 100 years’ incarceration.1

____________________________________________

1
The trial court set forth Appellant’s specific sentences as follows:

Count five: burglary – ten to twenty years[’] incarceration;

Count six: robbery serious bodily injury – ten to twenty years[’]
incarceration to be served consecutive to the period of
incarceration imposed at count five;

Count seven: robbery serious bodily injury – ten to twenty
years[’] incarceration to be served consecutive to the period of
incarceration imposed at count six;

Count eight: robbery serious bodily injury – ten to twenty
years[’] incarceration to be served consecutive to the period of
incarceration imposed at count seven;

Count nine: robbery serious bodily injury – ten to twenty
years[’] incarceration to be served consecutive to the period of
incarceration imposed at count eight;

Count sixteen: unlawful restraint – two to four years[’]
incarceration to be served concurrent with the period of
incarceration imposed at count five;

Count seventeen: unlawful restraint – two to four years[’]
incarceration to be served concurrent with the period of
incarceration imposed at count five;

Count eighteen: unlawful restraint – two to four years[’]
incarceration to be served concurrent with the period of
incarceration imposed at count five;

Count nineteen: unlawful restraint – two to four years[’]
incarceration to be served concurrent with the period of
incarceration imposed at count five;

Count twenty-one: [REAP] – one to two years[’] incarceration to
be served concurrent with the period of incarceration imposed at
count five;
(Footnote Continued Next Page)

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On November 19, 2012, Attorney Foreman entered her appearance as

counsel for Appellant. She filed a timely post-sentence motion on

Appellant’s behalf, which the court denied. On March 21, 2013, Appellant

filed a timely notice of appeal and the trial court subsequently ordered him

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. After Appellant requested and received several extensions of time

within which to do so, he filed a Rule 1925(b) statement raising the following

claims:

1. The evidence in this matter was insufficient to sustain
Appellant’s convictions for Burglary, Robbery-Inflict Serious
Bodily Injury, Unlawful Restraint-Serious Bodily Injury, and
[REAP].

a) The evidence presented was insufficient to prove
beyond a reasonable doubt that Appellant entered a
building or occupied structure, or separately secured or
occupied portion thereof, with intent to commit a crime
therein, and thus failed to prove the elements necessary to
convict Appellant of Burglary.

_______________________
(Footnote Continued)

Count twenty-two: [REAP] – one to two years[’] incarceration to
be served concurrent with the period of incarceration imposed at
count five;

Count twenty-three: [REAP] – one to two years[’] incarceration
to be served concurrent with the period of incarceration imposed
at count five;

Count twenty-four: [REAP] – one to two years[’] incarceration to
be served concurrent with the period of incarceration imposed at
count five.

TCO at 3-5.

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b) The evidence presented was insufficient to prove
beyond a reasonable doubt that Appellant, in the course of
committing a theft, inflicted serious bodily injury upon
another, and thus failed to prove the elements necessary
to convict Appellant of Robbery – Serious Bodily Injury.

(i) The Commonwealth failed to prove that a theft
occurred or that Appellant took any property
whatsoever from the victim(s) by force or threat of
force.

c) The evidence presented was insufficient to prove beyond
a reasonable doubt that Appellant knowingly restrained
another [person] unlawfully in circumstances exposing him
to risk of serious bodily injury, and thus failed to prove the
elements necessary to convict Appellant of Unlawful
Restraint-Serious Bodily Injury.

d) The evidence presented was insufficient to prove
beyond a reasonable doubt that Appellant recklessly
engaged in conduct, which placed or may place another
person in danger of death or serious bodily injury, and
thus failed to prove the elements necessary to convict
Appellant of [REAP].

2. The sentence imposed was excessive and/or illegal.

3. The verdict in this case was against the weight of the
evidence.

Rule 1925(b) Statement, 5/5/14, at 4-5 (unnumbered).

On June 12, 2014, the trial court issued a Rule 1925(a) opinion. On

December 1, 2014, Attorney Foreman filed with this Court a petition to

withdraw and an Anders brief. “When faced with a purported Anders brief,

this Court may not review the merits of the underlying issues without first

passing on the request to withdraw.” Commonwealth v. Rojas, 874 A.2d

638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d

1301, 1303 (Pa. Super. 1997)).

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Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The 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 case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right 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), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014). After

confirming that counsel satisfied these requirements, this Court must then

conduct its own review of the record and independently determine whether

the appeal is in fact wholly frivolous. Commonwealth v. Daniels, 999

A.2d 590, 594 (Pa. Super. 2010).

Instantly, Attorney Foreman’s Anders brief provides a detailed

summary of the procedural history and facts of Appellant’s case with

citations to the record. It also includes a discussion of the issues Appellant

seeks to raise on appeal, and an explanation of Attorney Foreman’s

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conclusion that an appeal on Appellant’s behalf would be wholly frivolous.

Attorney Foreman supports her rationale with citations to the record, as well

as relevant case law. She has also certified in her petition to withdraw that

she sent a copy of her Anders brief to Appellant, along with a letter advising

Appellant of the rights enumerated in Nischan, 928 A.2d at 353. Therefore,

we conclude that Attorney Foreman has complied with the technical

requirements for withdrawal. Accordingly, we will now independently review

whether Appellant’s claims are frivolous, and also determine whether there

are any other issues he could arguably present on appeal.

According to Attorney Foreman, Appellant first seeks to challenge the

sufficiency of the evidence to sustain his convictions. The trial court

concluded that Appellant’s sufficiency claim is waived, based on his failure to

state that issue with specificity in his Rule 1925(b) statement.

In … Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super.
2008), this Court reiterated that when challenging the sufficiency
of the evidence on appeal, the [a]ppellant's [Rule] 1925
statement must “specify the element or elements upon which
the evidence was insufficient” in order to preserve the issue for
appeal. Williams, 959 A.2d at 1257 (quoting Commonwealth
v. Flores, 921 A.2d 517, 522–23 (Pa. Super. 2007)). Such
specificity is of particular importance in cases where … the
[a]ppellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt. Id., at 1258 n. 9. … [W]e
have held that [the trial court’s decision to address the
sufficiency issue] is “of no moment to our analysis because we
apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in
a selective manner dependent on an appellee's argument or a
trial court's choice to address an unpreserved claim.” Id. at
1257 (quoting Flores at 522–23).

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Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010).

Here, the trial court emphasized that in Appellant’s Rule 1925(b)

statement, he did “not set forth which elements of his thirteen convictions

he is challenging …[;] rather[,] he merely state[d] that the Commonwealth

failed to prove beyond a reasonable doubt the statutory definitions of

robbery, burglary, unlawful restraint, and [REAP].” TCO at 10-11. The court

concluded that, “[g]iven the lack of specificity engendered by this claim, the

[t]rial [c]ourt cannot address it.” Id. at 11. Consequently, the court

deemed Appellant’s sufficiency of the evidence claim waived. Likewise, the

court also concluded that Appellant’s boilerplate challenge to the weight of

the evidence was too vague to preserve that issue for our review. See TCO

at 15 (citing Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super.

2002) (finding the appellant’s weight of the evidence claim waived where he

merely asserted in his Rule 1925(b) statement that “[t]he verdict of the jury

was against the weight of the credible evidence as to all of the charges”)).

We agree with the trial court’s waiver determinations. First, under

Seibert, it is apparent that Appellant waived his weight of the evidence

claim by setting it forth in boilerplate fashion in his Rule 1925(b) statement.

Second, in regard to his sufficiency challenge, Appellant specified the

convictions he is challenging, yet failed to identify what element(s) of those

offenses the Commonwealth failed to prove. Moreover, in Attorney

Foreman’s Anders brief, she asserts that Appellant seeks to challenge the

sufficiency of the evidence because “the Commonwealth failed to present

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any evidence of D.N.A., fingerprints, and/or a weapon.” Anders Brief at 17.

She also indicates that Appellant wants to argue that the evidence was

insufficient to convict him because “wiretap evidence” and statements he

provided to detectives on October 26, 2011, should have been suppressed.

Id. at 17, 21. None of these claims were presented in Appellant’s Rule

1925(b) statement; therefore, they are waived. See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).2
____________________________________________

2
We are aware that this Court has elected to assess the merits of otherwise
waived issues where counsel is seeking to withdraw on appeal. See
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(concluding that Anders requires review of issues otherwise waived on
appeal); Commonwealth v. Baney, 860 A.2d 127, 130 (Pa. Super. 2004)
(same). However, Hernandez and Baney (which relies on Hernandez)
both pre-date our Supreme Court’s 2007 amendment of Rule 1925, which
added section (c)(4). That provision states:

(4) In a criminal case, counsel may file of record and serve on
the judge a statement of intent to file an Anders/McClendon
brief in lieu of filing a Statement. If, upon review of the
Anders/McClendon brief, the appellate court believes that
there are arguably meritorious issues for review, those issues
will not be waived; instead, the appellate court may remand for
the filing of a Statement, a supplemental opinion pursuant to
Rule 1925(a), or both. Upon remand, the trial court may, but is
not required to, replace appellant's counsel.

Pa.R.A.P. 1925(c)(4). In the Comment to Rule 1925, the Supreme Court
elucidated the purpose of this amendment, stating:

This paragraph clarifies the special expectations and duties of a
criminal lawyer. Even lawyers seeking to withdraw pursuant to
the procedures set forth in Anders v. California, 386 U.S. 738
(1967) and Commonwealth v. McClendon, 495 Pa. 467, 434
(Footnote Continued Next Page)

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Finally, Appellant seeks to challenge discretionary aspects of his

sentence, arguing that the sentence imposed by the court was excessive.

“[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Crump,
995 A.2d 1280, 1282 (Pa. Super. 2010); 42 Pa.C.S. § 9781(b);
but see Pa. Const. Art. V § 9 (“there shall also be a right of
appeal from a court of record ... to an appellate court”). Rather,
an “[a]ppeal is permitted only after this Court determines that

_______________________
(Footnote Continued)

A.2d 1185 (1981) are obligated to comply with all rules,
including the filing of a Statement. See Commonwealth v.
Myers, 897 A.2d 493, 494-96 (Pa. Super. 2006);
Commonwealth v. Ladamus, 896 A.2d 592, 594 (Pa. Super.
2006). However, because a lawyer will not file an
Anders/McClendon brief without concluding that there are no
non-frivolous issues to raise on appeal, this amendment allows a
lawyer to file, in lieu of a Statement, a representation that no
errors have been raised because the lawyer is (or intends to be)
seeking to withdraw under Anders/McClendon. At that point,
the appellate court will reverse or remand for a supplemental
Statement and/or opinion if it finds potentially non-frivolous
issues during its constitutionally required review of the record.

Comment to Pa.R.A.P. 1925. Under Rule 1925(c)(4), counsel now has the
option of submitting a statement of intent to file an Anders brief rather than
a Rule 1925(b) statement raising specific issues. If, however, counsel
chooses to file a Rule 1925(b) statement, we do not overlook the firmly
established waiver principles in assessing what issues are preserved, simply
because counsel later elects to file an Anders brief with this Court. See
Myers, supra; Ladamus, supra. Only where Anders counsel fails to file
any court-ordered statement under Rule 1925, thus constituting per se
ineffectiveness, is the appropriate remedy to deny counsel’s petition to
withdraw and remand for counsel to file either a Rule 1925(b) or 1925(c)(4)
statement. See Commonwealth v. McBride, 957 A.2d 752, 758 (Pa.
Super. 2008) (holding that “absent the proper filing of any [Rule 1925]
statement of record by [Anders] counsel, this Court cannot properly
consider counsel’s request to withdraw”) (emphasis added).

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there is a substantial question that the sentence was not
appropriate under the sentencing code.” Crump, supra at 1282.

A defendant presents a substantial question when he “sets forth
a plausible argument that the sentence violates a provision of
the sentencing code or is contrary to the fundamental norms of
the sentencing process.” In order to properly present a
discretionary sentencing claim, a defendant is required to
preserve the issue in either a post-sentence motion or at
sentencing and in a court-ordered [Rule] 1925(b) concise
statement. Further, on appeal, a defendant “must provide a
separate statement [pursuant to Pa.R.A.P. 2119(f)] specifying
where the sentence falls in the sentencing guidelines, what
provision of the sentencing code has been violated, what
fundamental norm the sentence violates, and the manner in
which it violates the norm.” Commonwealth v. Naranjo, 53
A.3d 66, 72 (Pa. Super. 2012) (citations omitted).

Commonwealth v. Dodge, 77 A.3d 1263, 1268-1269 (Pa. Super. 2013)

(footnote omitted).

Here, in Appellant’s post-sentence motion, he stated: “The Defendant

believes his sentence was excessive and seeks to modify and reduce the

sentence of imprisonment imposed in this case.” Appellant’s Post-Sentence

Motion, 11/26/12, at 2 (unnumbered). Appellant raised the issue in a

similar, boilerplate fashion in his Rule 1925(b) statement. See Rule 1925(b)

Statement, 5/5/14, at 5 (“The sentence imposed was excessive and/or

illegal.”). The trial court concluded that Appellant’s bald assertion that his

sentence is excessive does not constitute a substantial question permitting

this Court to address the merits of his claim. TCO at 13. We are compelled

to agree. See Dodge, 77 A.3d at 1270 (clarifying that “a bald claim of

excessiveness due to the consecutive nature of a sentence will not raise a

substantial question”).

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In any event, we also emphasize that Attorney Foreman did not

include a Rule 2119(f) statement in her Anders brief to this Court, and the

Commonwealth has objected to this omission. See Commonwealth’s Brief at

14-15. This Court has held that under such circumstances, we are not

permitted to reach the merits of a discretionary aspect of sentencing claim.

See Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa. Super. 2003)

(stating “we may not reach the merits of [the] claims where the

Commonwealth has object[ed] to the omission of the statement”) (citation

omitted). Even in the Anders context, we have required counsel to comply

with Rule 2119(f). See Ladamus, 896 A.2d at 595-96; Commonwealth v.

Wilson, 578 A.2d 523, 525 (Pa. Super. 1990).

Accordingly, it is apparent that an appeal on Appellant’s behalf would

be wholly frivolous, as he has not preserved any of his claims for our review.

Moreover, after independently reviewing the record, we ascertain no other

issues that Appellant could assert herein. Therefore, we affirm Appellant’s

judgment of sentence and grant Attorney Foreman’s petition to withdraw.3

Judgment of sentence affirmed. Petition to withdraw granted.
____________________________________________

3
We concede that it is troubling to permit Attorney Foreman to withdraw
where she is the counsel who waived Appellant’s claims by filing an
inadequate Rule 1925(b) statement, an insufficient post-sentence motion,
and an Anders brief omitting a Rule 2119(f) statement. However, as with
any other criminal defendant whose counsel waives claims for our review,
Appellant may seek relief by filing a timely petition under the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541-9546, alleging ineffective representation by
Attorney Foreman.

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Judge Stabile joins this memorandum.

Judge Mundy concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2015

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