J-S22038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PHILLIP MALDONADO,
Appellant No. 1504 MDA 2016
Appeal from the Judgment of Sentence August 31, 2016
in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0000656-2015
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 13, 2017
Appellant, Phillip Maldonado, appeals from the judgment of sentence
imposed on August 31, 2016, following his jury conviction of drug delivery
resulting in death1 and related offenses. Appellant’s counsel has filed a brief
and a petition to withdraw under Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
alleging that the appeal is wholly frivolous. We affirm the judgment of
sentence and grant counsel’s request to withdraw.
We take the underlying facts and procedural history in this matter
from our independent review of the certified record.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2506(a).
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On April 27, 2015, the Commonwealth filed a criminal information
charging Appellant with one count each of drug delivery resulting in death,
criminal conspiracy,2 possession with intent to deliver a controlled
substance,3 and receiving stolen property.4 A jury trial took place on August
3, 2016.
At trial, Commonwealth eyewitness Tiffany Hoover testified that, on
May 16, 2014, she purchased drugs from Appellant. (See N.T. Trial,
8/03/16, at 18-20). Appellant introduced her to the victim and asked her if
she wanted to make some money, which Ms. Hoover understood as having
sex or “doing other things” with the victim. (Id. at 20). Ms. Hoover
observed that the victim had bags of heroin that he purchased from
Appellant; bags identical in appearance to bags she purchased from
Appellant. (See id. at 20-21). The victim and Ms. Hoover then drove to a
motel, smoking crack cocaine, purchased from Appellant, together. (See
id.). When they got into the motel room, Ms. Hoover stated that she
injected heroin that she had purchased from Appellant, while the victim
sniffed his heroin. (See id. at 21-23). Then, at the victim’s request, Ms.
Hoover contacted Appellant to purchase more heroin. (See id. at 22).
____________________________________________
2
18 Pa.C.S.A. § 903(a)(1).
3
35 P.S. § 780-113(a)(30).
4
18 Pa.C.S.A. § 3925(a).
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Appellant came to the motel and delivered an additional four bags of heroin.
(See id.). Ms. Hoover helped the victim inject one bag of heroin; shortly
thereafter, she observed the victim get sick and then go into a sleepy state.
(See id. at 24-25). At that point, Ms. Hoover stole some of the victim’s
property and left. (See id. at 25). The next morning, the motel’s assistant
manager found the victim dead in the room and contacted the police. (See
id. at 11-12).
Lebanon City Police Detective William Walton testified that he spoke
with Appellant on three separate occasions. (See id. at 46-50). In his first
statement, Appellant admitted that he purchased a specific brand of heroin
called Sale on Ms. Hoover’s behalf, then sold it to her on May 16, 2014.
(See id. at 46). He also admitted going to the motel to sell additional drugs
to her, but claimed it was crack cocaine not heroin. (See id. at 47).
During the second conversation, Appellant claimed that when Ms. Hoover
contacted him for additional heroin, it was too late in the evening to contact
the dealer he purchased it from and that this was why he delivered crack
cocaine. (See id. at 48). During the third conversation, Appellant admitted
delivering the second batch of heroin to Ms. Hoover but claimed that she
must have tampered with it before giving it to the victim. (See id. at 50).
Sergeant Jonathan Hess of the Lebanon City Police testified that when
he gave Appellant a copy of the charges in the instant matter, Appellant
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stated that he gave the heroin to Ms. Hoover and she “shot [the victim] up.”
(Id. at 65).
The parties stipulated that the victim died because of mixed substance
toxicity. (See id. at 68). Namely, he had ethanol (alcohol), morphine,
cocaine, cocaethylene, benzoylecgonine, and 6-monoacetylmorphine in his
blood at the time of death. (See id.).
Joann Sell, the retired manager of the toxicology department for
Health Network Laboratories, also testified as an expert at trial. (See id. at
69, 79). Ms. Sell stated that neither the amounts of alcohol nor the
amounts of cocaine in the victim’s blood were sufficient to cause death.
(See id. at 90, 92-94). She testified that, to a reasonable degree of
scientific certainty, the victim would not have died but for the use of heroin.
(See id. at 94-95, 105, 108).
At the close of the Commonwealth’s evidence, Appellant moved for a
judgment of acquittal with respect to the count of receiving stolen property.
(See id. at 112). The trial court granted the motion. (See id.).
Appellant took the stand on his own behalf. (See id. at 113).
Appellant testified that he both used and sold drugs, sometimes acting as an
intermediary, purchasing drugs from another dealer and selling them to a
user. (See id. at 113-15). He admitted that he purchased the Sale brand
of heroin from another dealer and sold it to Ms. Hoover on May 16, 2014.
(See id. at 115). He also admitted that, later that day, after receiving a
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phone call from Ms. Hoover, he took a cab to the motel and sold her crack
cocaine; he believed it was too late at night to get more of the Sale brand of
heroin. (See id. at 116-18). Appellant claimed that Ms. Hoover was alone
at the motel room and averred that he had never sold drugs to the victim
and did not ever see him. (See id. at 118-19).
The jury convicted Appellant of all remaining charges, including
involuntary manslaughter, which Appellant requested. (See id. at 133, 139-
40). On August 31, 2016, the trial court sentenced Appellant to an
aggregate term of incarceration of not less than nine nor more than nineteen
years to be served consecutively to any other sentence. (See Sentencing
Order, 8/31/16, at i-iii). On September 8, 2016, Appellant filed both a
timely notice of appeal and a concise statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b). On November 2, 2016, the trial court
issued an order adopting an earlier opinion as its Rule 1925 opinion. (See
Order, 11/02/16, at unnumbered page 1); Pa.R.A.P. 1925(a).
On December 9, 2016, counsel filed a motion to withdraw and Anders
brief in this Court. Appellant has filed a response.
On appeal, both the Anders brief and Appellant’s response raise
identical issues, namely that the evidence was insufficient to sustain
Appellant’s conviction and that he received ineffective assistance of trial
counsel. (See Anders Brief, at 7-12; Appellant’s Brief, at 4-11).
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Appellant’s counsel has petitioned for permission to withdraw and has
submitted an Anders brief, which is procedurally proper for counsel seeking
to withdraw on direct appeal. See Anders, supra at 744. Court-appointed
counsel who seeks to withdraw from representing an appellant on direct
appeal on the basis that the appeal is frivolous 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, supra at 361. When we receive an Anders brief, we first rule on
the petition to withdraw and then review the merits of the underlying issues.
See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).
In addition, “[p]art and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or misstated.”
Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).
In the instant matter, counsel has substantially complied with all the
requirements of Anders and Santiago. Specifically, he has petitioned this
Court to withdraw because “the appeal filed in this matter is wholly frivolous
and without any merit.” (Application for Relief in the Nature of a Motion to
Withdraw as Counsel, 12/09/16, at unnumbered page 1). In addition, after
his review of the record, counsel filed a brief with this Court that provides a
summary of the procedural history and facts with citations to the record,
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refers to any facts or legal theories that arguably support the appeal, and
explains why he believes the appeal is frivolous. (See Anders Brief, at 4-
13). Lastly, he has attached, as an exhibit to his motion to withdraw, a copy
of the letter sent to Appellant giving him notice of his rights, and including a
copy of the Anders brief and the petition. (See Application for Relief in the
Nature of a Motion to Withdraw as Counsel, 12/09/16, at Exhibit A); see
also Commonwealth v. Millisock, 873 A.2d 748, 751-52 (Pa. Super.
2005). As noted above, Appellant responded with a brief raising the same
issues as those raised in the Anders brief. Because counsel has
substantially complied with the dictates of Anders, Santiago, and
Millisock, we will examine the issues set forth in both briefs. See Garang,
supra at 240-41.
In his first and second issues, Appellant claims the evidence was
insufficient to sustain his conviction for drug delivery resulting in death.5
(See Anders Brief, at 7-12; Appellant’s Brief, at 5-11). Because Appellant’s
sufficiency issues are interrelated, we address them together.
Our standard of review for sufficiency of the evidence claims is well
settled:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed
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5
Appellant does not challenge the sufficiency of the evidence underlying his
conviction on the remaining charges. (See Anders Brief, at 7-12;
Appellant’s Brief, at 5-11).
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in a light most favorable to the Commonwealth as verdict
winner, support the conviction beyond a reasonable doubt.
Where there is sufficient evidence to enable the trier of fact to
find every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation
omitted) (emphasis added).
The jury convicted Appellant of drug delivery resulting in death, 18
Pa.C.S.A. § 2506(a), which states:
(a) Offense defined.—A person commits a felony of the first
degree if the person intentionally administers, dispenses,
delivers, gives, prescribes, sells or distributes any controlled
substance or counterfeit controlled substance in violation of
section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233,
No. 64) known as The Controlled Substance, Drug, Device and
Cosmetic Act, and another person dies as a result of using the
substance.
18 Pa.C.S.A. § 2506(a) (footnote omitted).
Appellant contends that the evidence was insufficient to sustain his
conviction because the Commonwealth did not prove that: (1) he supplied
the heroin to the victim, (see Anders Brief, at 10-12; Appellant’s Brief, at
7-8); and (2) the heroin was the sole cause of death, i.e. that the victim
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died of mixed toxicity (see Anders Brief, at 7-9; Appellant’s Brief, at 5-7).
We disagree.
Here, as discussed above, Ms. Hoover testified that both she and the
victim purchased heroin and crack cocaine from Appellant. (See N.T. Trial,
8/03/16, at 18-21). After using the initial bags of heroin, Ms. Hoover
contacted Appellant to purchase additional heroin; Appellant came to their
motel room and sold them additional heroin. (See id. at 21-22). Ms.
Hoover helped the victim inject one bag of the heroin, and when he began to
get sleepy she left, stealing some of the victim’s property. (See id. at 24-
25). This evidence is clearly sufficient to show that Appellant supplied the
heroin to the victim.
Moreover, Appellant’s claim is, in essence, a contention that the jury
should have credited his testimony that he did not sell the heroin to the
victim and not credited Ms. Hoover’s testimony. (See Anders Brief, at 12;
Appellant’s Brief, at 7-8). However, such an argument goes to the weight of
the evidence, not the sufficiency of the evidence. See Commonwealth v.
W.H.M., Jr., 932 A.2d 155, 160 (Pa. Super. 2007) (claim that jury should
have believed appellant’s version of event rather than that of victim goes to
weight, not sufficiency of evidence); Commonwealth v. Wilson, 825 A.2d
710, 713-14 (Pa. Super. 2003) (review of sufficiency of evidence does not
include assessment of credibility of testimony; such claim goes to weight of
evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super.
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1997) (credibility determinations are made by finder of fact and challenges
to those determinations go to weight, not sufficiency of evidence).
Accordingly, Appellant’s claim that the evidence was insufficient to show that
he supplied the heroin lacks merit.
Appellant also claims that the Commonwealth failed to prove that the
heroin caused the victim’s death. (See Anders Brief, at 7-9; Appellant’s
Brief, at 5-7). Initially, we note that Appellant does not point to any
Pennsylvania case that has found that a court cannot convict a person of
drug delivery resulting in death in a case of mixed toxicity. (See id.).
Rather, in Commonwealth v. Kakhankham, 132 A.3d 986 (Pa. Super.
2015), appeal denied, 138 A.3d 4 (Pa. 2016), this Court held that the
statute, “requires a ‘but-for’ test of causation.” Kakhankham, supra at
993.
Here, the parties stipulated that the cause of the victim’s death was
mixed substance toxicity. (See N.T. Trial, 8/03/16, at 68). The
Commonwealth’s expert averred that the victim had used alcohol, cocaine,
and heroin prior to his death. (See id. at 89). She stated that the levels of
alcohol and cocaine in the victim’s blood were not at amounts that would
cause a fatality. (See id. at 90, 93). However, she stated that the heroin,
which the victim had used immediately prior to his death, was above fatal
levels. (See id. at 89-92). When questioned about causation, Ms. Sell
testified as follows:
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[Ms. Sell]: . . . Had he not used the heroin, it’s my opinion that
alcohol of .10 would not have killed him. And the little bit of
cocaine and the combination of the alcohol would not have killed
him. Whether he would’ve died with just the morphine and not
alcohol, I-I can’t say that.
[The Commonwealth]: So from what you just said then, the
alcohol and the cocaine, alone or together, would not have
resulted in death, but when you add heroin to the combination it
becomes fatal, correct?
[Ms. Sell]: Correct.
[The Commonwealth]: And so if he didn’t use heroin he would
not have died?
[Ms. Sell]: Correct.
* * *
[Ms. Sell]: . . . If he only had alcohol and he only had cocaine,
he would not have — in my opinion, he would not have died.
* * *
[The Commonwealth]: But what you can say is the alcohol and
the cocaine alone didn’t kill him?
[Ms. Sell]: Correct.
[The Commonwealth]: Only when you add heroin to the
equation does he die?
[Ms. Sell]: Correct.
(N.T. Trial, 8/03/16, at 94-95, 105, 108). Therefore, the evidence at trial
showed that but-for the victim’s use of heroin, he would not have died.
Thus, the evidence was sufficient to demonstrate that the victim died
because he used heroin sold to him by Appellant. See Kakhankham,
supra at 993. Appellant’s first and second issues lack merit.
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In his final issue, Appellant maintains that he received ineffective
assistance of trial counsel because of a conflict of interest. (See Anders
Brief, at 9-10; Appellant’s Brief, at 9-11). However, this claim is not ripe for
review.
Our Supreme Court reaffirmed the holding of Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), in Commonwealth v. Holmes, 79 A.3d
562 (Pa. 2013). In Holmes, our Supreme Court held, “claims of ineffective
assistance of counsel are to 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 at 576
(footnote omitted).
The Holmes Court noted two narrow exceptions for “extraordinary
circumstances” to the broader rule, holding “where the trial court, in the
exercise of its discretion, determines that a claim (or claims) of
ineffectiveness is both meritorious and apparent from the record so that
immediate consideration and relief is warranted,” and allowing review for
“good cause,” such as the shortness of a sentence, of “multiple, and indeed
comprehensive, ineffectiveness claims” if such review is accompanied by a
knowing, voluntarily, and express waiver of PCRA rights. Id. at 577–78.
Instantly, neither of these exceptions applies. Therefore, Appellant’s
ineffective assistance of counsel issue is premature and we decline to
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address the merits. This is without prejudice to Appellant’s right to present
these ineffectiveness claims in a timely PCRA petition.
Appellant’s issues lack merit. Further, this Court has conducted an
independent review of the record as required by Anders and Santiago and
finds that no non-frivolous issues exist.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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