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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WANDALEE BALCACER :
:
Appellant : No. 2002 MDA 2016
Appeal from the Judgment of Sentence November 8, 2016
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004025-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 20, 2017
Wandalee Balcacer (“Appellant”) appeals from the judgment of
sentence entered in the Court of Common Pleas of Luzerne County on
November 8, 2016. Appellant’s counsel has filed an application to withdraw
his representation and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
which govern a withdrawal from representation on direct appeal. Appellant
has not filed a response to counsel’s petition. After careful review, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
In an opinion to this Court, the trial court set forth the relevant
procedural and factual history of this case as follows:
On January 13, 2016, the Luzerne County District Attorney
filed a four (4) count Information charging [Appellant] with two
(2) counts of Criminal Homicide-Criminal Attempt 18 Pa.C.S.A.
§901(A) and two (2) counts of Criminal Conspiracy to commit
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Homicide 18 Pa.C.S.A. [§] 903. There being no objection to the
Commonwealth’s Motion to Consolidate Appellant’s case with
that of her co-defendant, Tony Edwards, by Order dated May 19,
2016, the cases of Commonwealth versus [Appellant] and
Commonwealth versus Tony Edwards were consolidated for trial
pursuant to Pa. R. Crim. P. 453.
It was alleged that the Appellant and her co-defendant,
Tony Edwards, were responsible for the attempted killing of
Sherry Ann Rivera and Izhar Ramos-Ramirez. Specifically,
evidence was presented that Ms. Rivera owed Appellant money
for narcotics. (N.T. p. 303) Appellant enlisted her co-defendant,
Tony Edwards to join her in confronting Ms. Rivera relative to the
aforementioned drug debt. On April 4, 2015, Appellant and
Edwards confronted Ms. Rivera and Mr. Ramirez in a stairway at
the Interfaith Heights Housing Complex in Wilkes-Barre City.
(N.T. p 401-405) The victims were ordered to the ground and
shot by Edwards at Appellant’s urging. (N.T. p. 404).
Following a trial before a jury, on September 19, 2016, the
Appellant was found guilty of count three (3), Criminal
Conspiracy to Commit Homicide of Sherry Ann Rivera. A Pre-
Sentence Investigation was ordered to be completed by the
Luzerne County Adult Probation and Parole Department, and a
sentencing hearing was scheduled. The sentencing hearing
commenced on November 8, 2016, when the Appellant was
sentenced to a minimum period of incarceration of fifteen (15)
years to a maximum of forty (40) years to be served in a state
correctional institution. (N.T. Sentencing 11/8//2016 [sic] p. 10)
[Appellant] was subsequently advised by this [c]ourt of her post-
sentence rights before the hearing concluded. Id.
Trial Court Opinion, 6/27/17, at 1–2 (footnote omitted).
Before we address the merits of this appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
direct appeal. The procedural mandates are that counsel must:
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1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that he conducted a thorough review of
Appellant’s case and determined that the appeal would be frivolous. Counsel
sent Appellant a copy of the Anders brief and petition to withdraw, as well
as a letter, a copy of which is attached to the petition. In the letter, counsel
advised Appellant that she could either represent herself on appeal or retain
private counsel to represent her.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case, outlines pertinent case authority, cites to
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the record, and refers to issues of arguable merit. Anders Brief at 4–6.
Further, the brief sets forth counsel’s conclusion that the appeal is frivolous
and the reasons for counsel’s conclusion. Id. at 6–7. “Therefore, we now
have the responsibility to make a full examination of the proceedings and
make an independent judgment to decide whether the appeal is in fact
wholly frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa.
Super. 2016) (citation and internal quotation marks omitted).
The Anders brief contains three issues for our consideration:
1. Whether the trial court committed an error of law in allowing
the Commonwealth’s improper impeachment of the Appellant
through use of bad character evidence via Facebook
messages from Appellant’s sister contrary to Pa. Rule of
Evidence 608.
2. Whether the trial court committed an error of law in allowing
the Commonwealth’s cross-examination of Appellant’s inquiry,
“whether there was any time during the day that you were
not breaking the law” which is impermissible bad character
evidence that violated the court’s limited instruction on
admissibility of Appellant’s drug selling activity.
3. Whether the trial court committed an error of law in
permitting the Commonwealth’s closing argument “that
Defendant can bring as many lawyers as she wants to feed
you bullshit” which violates the Appellant’s Sixth Amendment
Right to Counsel.
Anders Brief at 1.
The first issue concerns the admission of impeachment evidence. Our
standard of review for evidentiary matters is well established:
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. In
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determining whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the evidence
against the prejudicial impact of the evidence. Evidence is
relevant if it logically tends to establish a material fact in the
case or tends to support a reasonable inference regarding a
material fact.
Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2017), appeal
denied, 225 EAL 2017, 2017 WL 3393565 (Pa. filed Aug. 8, 2017) (quoting
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)
(citation omitted)). “An abuse of discretion is not merely an error of
judgment; rather, discretion is abused when the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by the evidence or
the record....” Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa.
Super. 2014) (citations and quotations omitted).
Appellant’s challenge stems from the prosecutor asking Appellant on
cross-examination if she would describe herself as a “manipulator.” N.T.,
9/19/16, at 951. When Appellant answered negatively, the Commonwealth
produced the following Facebook message:
My name is Wandalee Balcacer and I am 25 years old.
This is the email I have been using. It is my sister’s. Her name
is . . ., my number is . . . . I am the ultimate player because I
don’t play the physical part of things, I play the mental. I am a
manipulator of dudes, etc., or in it to win. I am one of the
smartest people you will ever meet, but I play dumb. Pick me
MTV. Love, Loren.
Id. at Commonwealth’s Exhibit 53. Defense counsel objected to the
Facebook message as an attack on Appellant’s character. Id. at 951.
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Following sidebar arguments, the trial court overruled the objection. Id. at
952–954.
In her Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
Appellant complained that the trial court violated Pa.R.E. 608 by admitting
evidence of Appellant’s character for truthfulness or untruthfulness. The trial
court rejected Appellant’s Rule 608 argument, instead allowing “the
questioning pursuant to [Pa.R.E.] 613 which permits a witness to be
confronted with a prior inconsistent statement and [Pa.R.E.] 803(25) which
governs the admissions of an opposing party.” Trial Court Opinion, 6/27/17,
at 6. According to the trial court, the Facebook message was relevant given
the Commonwealth’s theory of the case and Appellant’s defense that she
was merely present at the shooting. Id. at 7. Lastly, the trial court recalled
that:
Appellant flatly denied authoring the statement at issue and in
her case in chief, she called a witness who admitted to having
posted the comment.4 (N.T. Trial p. 955–956). Consequently, as
the testimony developed, the statement previously attributed to
the Appellant became irrelevant.
4 Defense witness, Anthony Velez AKA [Anthea]
Velez was shown the writing, represented to be an e-
mail, and the witness unequivocally testified that
[s]he authored the e-mail in an effort to present the
Appellant for consideration on MTV’s “The Real
World” television program. (N.T. Trial p. 1002)
Trial Court Opinion, 6/27/17, at 7.
Upon review, we discern no abuse of discretion in the trial court’s
ruling. The Facebook message was relevant to support the Commonwealth’s
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theory of complicity and to undermine Appellant’s defense. The
Commonwealth’s evidence suggested that “Appellant persuaded her co-
defendant, Tony Edwards to attempt to kill Sherry Ann Rivera and Izhar
Ramirez over a drug debt owed to Appellant by Ms. Rivera.” Trial Court
Opinion, 6/27/17, at 7. Contrarily, a defense witness testified that Appellant
was “in over her head” and that “Appellant’s co-defendant, Tony Edwards,
spontaneously robbed and shot the victims as Appellant was requesting the
return of her money or drugs.” Id.; N.T., 9/19/16, at 792, 821–822.
Moreover, the record confirms Appellant’s denial of authorship. After
directing Appellant to read the Facebook message into the record, the
prosecutor asked her, “So you -- you would admit you describe yourself in
this correspondence as a manipulator?” Id. at 955. Appellant responded, “I
wouldn’t admit anything because I didn’t write that.” Id. at 956. When
defense counsel questioned Appellant’s witness, Anthea Velez, about the
Facebook message, the witness admitted that she “wrote those words on
that email” in order to convince MTV that Appellant should be on their show.
Id. at 1002. In light of this record, we agree with Appellant’s counsel that
admission of the Facebook message “did not result in any prejudice to the
Appellant.” Anders Brief at 6.
The next issue presented is also an evidentiary challenge. The trial
court set forth the backdrop of this claim as follows:
[Appellant] next alleges that we erred by “allowing the
Commonwealth’s cross-examination of [Appellant] inquiring
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‘whether there was any time during the day when you weren’t
breaking the law’ which is impermissible bad character evidence
that violated the court’s limiting instruction on admissibility of
[Appellant’s] drug selling activity.”
On cross-exam Appellant was indeed asked “Is there an
hour in [the] day where you didn’t deal drugs or commit a
crime?” (N.T. Trial p. 948) Appellant responded to the inquiry
but no objection was made.
Trial Court Opinion, 6/27/17, at 8.
The trial court and appellate counsel advise that this issue is waived
because defense counsel made no objection to the prosecutor’s question.
Trial Court Opinion, 6/27/17, at 8; Anders Brief at 7. The record supports
their position. N.T., 9/19/16, at 948. Accordingly, we agree that this issue
is waived. See Commonwealth v. Sauers, 159 A.3d 1, 9 (Pa. Super.
2017) (stating that the failure to offer a timely and specific objection results
in waiver of the claim).
The third issue presented concerns the prosecutor’s closing argument.
Specifically, the Commonwealth told the jury, “You could have a thousand
lawyers come in here to feed you any line of bull –-.” N.T., 9/19/16, at
1122. Defense counsel promptly objected to the comment as “improper,”
and the trial court sustained the objection. Id. At the end of the
prosecutor’s closing argument, defense counsel moved for a mistrial, arguing
that the prosecutor’s comment impinged upon Appellant’s right to counsel.
Id. at 1124. Following sidebar arguments, the trial court denied the motion
and issued a cautionary instruction. Id. at 1127.
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Upon review, we dispose of this issue by adopting the trial court’s well-
reasoned analysis:
The [c]ourt instructed the jury at the outset of the trial as
to what they are to consider as evidence. Particularly, after the
jury panel was selected, the [c]ourt in the course of giving the
jurors prefatory instructions stated, “Statements made by
counsel do not constitute evidence. The questions which counsel
put to witnesses are not, themselves, evidence.” (N.T. Trial p.
168–169) We reiterated this just prior to counsels’ opening
statements noting that “The opening statements, as with any
other statement made by counsel, do not constitute evidence
. . .” (N.T. Trial p. 174) The [c]ourt again so instructed the jury
at the conclusion of the trial. (N.T. Trial p. 1160) The jury is
presumed to follow the Court’s instructions. Commonwealth v.
Reid, 627 Pa. 151, 202, 99 A.3d 470, 501 (2014) citing
Commonwealth v. Travaglia, 611 Pa. 481, 28 A.3d 868 (2011).
The Appellant offers no argument or evidence that the jury
disregarded the Court’s instructions. Thus, [Appellant’s]
allegation of error is meritless.
More importantly, our examination of the record further
reveals that Appellant’s counsel objected to the offending remark
and we sustained the objection. (N.T. Trial p. 1122) Appellant’s
counsel developed his objection further and moved for a mistrial
which we denied. (N.T. Trial p. 1124–1125)
The decision to declare a mistrial is within the sound
discretion of the trial court. Commonwealth v. Montgomery, 626
A.2d 109 (Pa. 2009). A mistrial is an extreme remedy that may
be granted only when an incident is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial.
Commonwealth v. Manley, 985 A.2d 256 (Pa. Super. 2009).
After the jury is exposed to unfairly prejudicial evidence the trial
court may implement any appropriate remedy, including offering
a remedial instruction or declaring a mistrial. Commonwealth v.
Sanchez, 36 A.3d 24, 47–48 (Pa. 2011).
Appellant’s counsel made [a] motion for a mistrial shortly
after we sustained his objection to the prosecutor’s objectionable
comment and he requested a limiting or cautionary instruction.
We denied his motion for a mistrial and promptly gave the jury
the following cautionary instruction:
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“Ladies and gentlemen of the jury, I just want to caution you, as
I have a number of times and you’re going to hear later on in my
closing instructions, that, once again, you just hearing closing
arguments. Those are arguments of counsel. Those arguments
are not evidence, and you are not to consider them as such.
And I am asking you to disregard the comment that was made
by the Commonwealth’s counsel about, Miss Balcacer’s attorney
being bull, or something along those lines. I’d just ask that that
be stricken and disregarded by you.” (N.T. Trial p. 1127).
Plainly, the offending argument of counsel did not so
prejudice the Appellant that she is entitled to a new trial. We did
not condone the objectionable argument of the prosecutor and
we sustained counsel’s objection, gave a cautionary instruction,
and directed the comment be stricken. Appellant’s final
allegation of error is without merit. . . .
Trial Court Opinion, 6/27/17, at 9–10.
Finally, we have independently reviewed the record in order to
determine if appellate counsel’s assessment about the frivolous nature of the
present appeal is correct. See Commonwealth v. Flowers, 113 A.3d 1246,
1250 (Pa. Super. 2015) (after determining that counsel has satisfied the
technical requirements of Anders and Santiago, this Court must conduct an
independent review of the record to determine if there are additional, non-
frivolous issues overlooked by counsel). We conclude that an appeal in this
matter is frivolous. Accordingly, we grant appellate counsel permission to
withdraw and affirm the judgment of sentence.
Application to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
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