Com. v. Gutierrez-Garcia, D.

• Court: Superior Court of Pennsylvania
• Decided: October 25, 2024
• Docket: 1018 MDA 2023
• Status: Unpublished

Opinion

J-S30040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEIVIS GUTIERREZ-GARCIA : : Appellant : No. 1018 MDA 2023

Appeal from the Judgment of Sentence Entered June 14, 2023 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002776-2022

BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: OCTOBER 25, 2024

Appellant, Deivis Gutierrez-Garcia, appeals from the judgment of

sentence entered in the Court of Common Pleas of Berks County after a jury

convicted him of murder in the first degree and related offenses on evidence

that he fatally shot his ex-girlfriend’s paramour at close range. Additionally,

Appellant’s counsel, Assistant Public Defender William Bispels, Esq., has filed

an application to withdraw as counsel and an accompanying Anders 1 brief.

Upon review, we grant Attorney Bispels’ application to withdraw, but given

both this Court’s delay in discerning Appellant’s promptly filed motion to

proceed pro se and the subsequent entry of appearance by privately retained ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Anders v. California, 368 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S30040-24

counsel, we retain jurisdiction and grant privately retained counsel 30 days

from the filing of this decision to submit either an advocate’s brief or Anders

brief, to which the Commonwealth then will have 30 days to file a responsive

brief if it so chooses.

On February 26, 2022, Appellant shot and killed Jackson Reyes-Negron

as Reyes-Negron sat in the passenger seat of a car driven by his girlfriend,

Amarie Torres. Several years earlier, Appellant and Torres were romantically

involved as teenagers and shared a child from that relationship. Evidence

adduced at Appellant’s jury trial described how Appellant exited from the

passenger side of a vehicle that had double-parked alongside Torres’ car to

trap it in front of Reyes-Negron’s residence. N.T., 5/1/23, at 240-41. He

walked to the front of Torres’ car and screamed at her about the baby and

about her relationship with Reyes-Negron. He then walked back to his car to

retrieve a gun, returned to the front of Torres’ car, and while ignoring Torres’

pleas to stop, fired five gunshots through the front windshield directly into

Reyes-Negron’s chest. N.T. at 247-254. Appellant fled the scene, and Torres

raced to Reading Hospital, where Reyes-Negron was pronounced dead shortly

after his arrival. N.T. at 256-57, 392.

In the ensuing investigation, Torres initially denied knowing the

identity of the shooter, but in her second interview with police, she implicated

Appellant. N.T. at 272, 371-72. Multiple fingerprints were acquired from the

surface of Torres’ car, and one of them belonged to Appellant. N.T. at 480,

485. The physician who conducted the autopsy testified that the five gunshot

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entrance wounds from which Mr. Reyes-Negron died were atypically shaped,

consistent with the altered flight line the bullets would have taken after

colliding with the windshield. N.T. at 399. She confirmed that she ruled Mr.

Reyes-Negron died by homicide. N.T. at 403-04.

On May 5, 2023, the jury returned a verdict of guilty on Murder in the

first degree, two counts of Aggravated Assault, Firearms Not to be Carried

without a License, and Possessing Instruments of Crime. On June 14, 2023,

the trial court imposed a sentence of life without parole on the count of first-

degree murder and a concurrent sentence of two to five years for the Firearms

Not to be Carried Without a License charge. The remaining charges merged

for sentencing. On July 14, 2023, trial counsel filed a notice of appeal, but he

was allowed to withdraw as counsel on July 20, 2023.

The trial court opinion aptly recites the remaining relevant procedural

history, as follows:

On August 1, 2023, [the trial court] granted Appellant’s Motion to Proceed in Forma Pauperis. On August 8, 2023, [the trial court] entered an Order directing Appellant to file a Concise Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b). On August 21, 2023, Appellant requested an extension of time to comply with the 1925(b) Order, which [the trial court] granted. On August 31, 2023, the trial court entered an Order directing the Berks County Public Defender’s Office to take an application from [the Appellant] for representation and extended the time for filing the Concise Statement. On November 14, 2023, Assistant Public Defender William Bispels entered his appearance on behalf of [Appellant]. Transcripts were ordered and filed on December 22, 2023. On February 24, 2024, when no concise statement was filed, the trial court entered an order, in accordance with Pa.R.A.P. 1925(b) finding the issues must be deemed waived for the purpose of appellate review. On March 26, 2024, the Superior

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Court directed Attorney Bispels to file a concise statement. On April 10, 2024, Appellant filed a Concise Statement of Errors Complained of on Appeal raising two issues:

1) The verdict of guilty was contrary to the weight of the evidence

2) The evidence presented at Trial was insufficient to convict Garcia of the charges.

Trial Court Opinion, 5/21/24, at 1-2.

As noted, Attorney Bispels filed an Anders Brief indicating Appellant

wished to challenge both the sufficiency and the weight of the evidence. As

discussed infra, however, Appellant has filed a pro se response and retained

private counsel. When an appellant files a pro se or counseled response to an

Anders brief, this Court will first determine whether counsel has complied

with the dictates of Anders and Santiago. See Commonwealth v.

Bennett, 124 A.3d 327, 333 (Pa. Super. 2015) (outlining the proper

procedure where counsel files an Anders Brief and the appellant files a pro se

response). If counsel has complied with Anders and Santiago, we address

the issues raised in the Anders Brief. Bennett, 124 A.3d at 333. If we

determine that those issues are without merit, we examine the allegations the

appellant raised in his pro se reply. Id. We treat this filing as an advocate's

brief and review it “as we do any advocate's brief.” Id. We are mindful that

this Court is limited to examining only those issues raised and developed in

the pro se reply. Id. “We do not act as, and are forbidden from acting as,

appellant's counsel.” Id.

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Before we begin our substantive analysis, we must first review Counsel

Bispels’ Anders brief and motion to withdraw based on frivolity. See

Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007) (en banc).

“When faced with a purported Anders brief, this Court may not review the

merits of any possible underlying issues without first examining counsel's

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted). Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court's attention.

Goodwin, 928 A.2d at 290.

Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

(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.

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“If counsel does not fulfill the aforesaid technical requirements of

Anders [and Santiago], this Court will deny the petition to withdraw and

remand the case with appropriate instructions (e.g., directing counsel either

to comply with Anders [and Santiago] or file an advocate's brief on

Appellant's behalf).” Commonwealth v. Falcey, 310 A.3d 313, 314-15 (Pa.

Super. 2024) (citation omitted).

Upon review, it appears that counsel has substantially complied with the

procedural requirements of Anders, McClendon, and their progeny. Counsel

provided Appellant with a letter advising him of his rights pursuant to

Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005). The letter is

attached to counsel’s petition to withdraw. Further, although the petition and

brief do not contain certificates of service demonstrating service on Appellant,

counsel states in the petition that a copy of the Anders brief has been mailed

to Appellant along with the Millisock letter attached to the petition, and the

letter references the Anders brief as having been enclosed.2

Counsel has also complied with the requirements set forth in Santiago.

However, counsel did not attach a copy of the Pa.R.A.P. 1925(b) statement or

the trial court’s Pa.R.A.P. 1925(a) opinion. Cf. Pa.R.A.P. 2111(d) (stating that

in Superior Court, copy of the concise statement shall be appended to

Appellant’s brief; if trial court has not entered order directing filing of such ____________________________________________

2 The conclusion section of the Anders brief itself also states that a copy of

the brief was forwarded to Appellant with instructions on retaining private counsel or continuing pro se and raising any additional arguments or points with this Court.

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statement, brief shall contain averment that no order to file a concise

statement was entered); see also Pa.R.A.P. 2111(b) (stating that “[t]here

shall be appended to the brief a copy of any opinions delivered by any trial

court . . .”). Counsel did, on the other hand, attach copies of the sentencing

orders to the Anders brief.

Having confirmed counsel’s compliance with the above requirements,

we turn to the issues raised in the Anders Brief. First raised is a challenge to

the weight of the evidence. We note that a weight challenge must be

preserved either in a post-sentence motion, a written motion before

sentencing, or orally prior to sentencing. See Pa.R.Crim.P. 607(A)(1)-(3);

see also id., cmt. (providing that “[t]he purpose of this rule is to make it

clear that a challenge to the weight of the evidence must be raised with the

trial judge or it will be waived.”). An appellant's failure to pursue any of the

prescribed methods for presenting a weight of the evidence issue to the trial

court constitutes waiver of that claim. Commonwealth v. Burkett, 830 A.2d

1034, 1037 (Pa. Super. 2003); Commonwealth v. Wilson, 825 A.2d 710,

713 (Pa. Super. 2003) (holding that a claim challenging the weight of the

evidence cannot be raised for the first time on appeal). Our review of the

record discloses no attempt, by post-sentence motion or oral or written motion

prior to sentencing, to challenge the weight of the evidence. Thus, Appellant

has waived this claim. Even if it were not waived, this Court discerns from

the record no basis upon which to disturb the jury’s decision as sole finder of

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fact to accept Ms. Torres’ eyewitness testimony as credible while rejecting

defense evidence offered to undermine such testimony.

In Appellant’s second issue raised in the Anders brief, Appellant

challenges the sufficiency of the evidence. As we have previously observed:

[A]ppellate review of a challenge to the sufficiency of the evidence is governed by the following principles:

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 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. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005) (quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003)). This Court has further explained:

[E]vidence of identification need not be positive and certain to sustain a conviction. Although common items of clothing and general physical characteristics

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are usually insufficient to support a conviction, such evidence can be used as other circumstances to establish the identity of a perpetrator. ... Given additional evidentiary circumstances, any indefiniteness and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc), appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations omitted).

The Crimes Code defines first-degree murder as follows:

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

18 Pa.C.S.A. § 2502(a).

To find a defendant guilty of first-degree murder a jury must find that the Commonwealth has proven that he or she unlawfully killed a human being and did so in an intentional, deliberate and premeditated manner.

It is the element of a willful, premeditated and deliberate intent to kill that distinguishes first-degree murder from all other criminal homicide. ...

The mens rea required for first-degree murder, specific intent to kill, may be established solely from circumstantial evidence.

Commonwealth v. Schoff, 911 A.2d 147, 159-60 (Pa.Super. 2006) (internal citations and quotation marks omitted).

“Specific intent to kill can be established through circumstantial evidence, such as the use of a deadly weapon on a vital part of the victim's body.” Commonwealth v. N. Montalvo, 598 Pa. 263, 274, 956 A.2d 926, 932 (2008), cert. denied, 556 U.S. 1186, 129 S.Ct. 1989, 173 L.Ed.2d 1091 (2009). See also Commonwealth v. Sepulveda, 579 Pa. 217, 226-27, 855 A.2d

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783, 789 (2004), cert. denied, 546 U.S. 1169, 126 S.Ct. 1330, 164 L.Ed.2d 47 (2006) (stating abdomen is vital part of body); Commonwealth v. Drumheller, 570 Pa. 117, 142-43, 808 A.2d 893, 908 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003) (stating torso may be considered vital part of body).

Commonwealth v. Correa, No. 1480 EDA 2023, 2024 WL 4261789, at *6

(Pa. Super. Ct. Sept. 23, 2024) (non-precedential decision)3.

Instantly, eyewitness Amarie Torres testified in detail about how an

enraged Appellant trapped her and Reyes-Negron in their car, screamed

invectives and threats at them, retrieved a firearm and fired five shots through

the windshield without provocation, striking Reyes-Negron in vital parts of his

body as he remained seated inside Torres’ car. Viewed in the light most

favorable to the Commonwealth as verdict-winner, the evidence was sufficient

to sustain Appellant's conviction for first-degree murder.4 Thus, to the extent

Appellant has properly advanced a sufficiency challenge, it merits no relief.

Our inquiry does not end here, as the docket reveals that 33 days after

appointed counsel filed his petition to withdraw and Anders brief, Appellant

filed his June 17, 2024, pro se “Appellant’s Motion to Proceed on Appeal Pro

Se, and Request for Trial Transcripts” in response to counsel’s Millisock letter

____________________________________________

3 See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers

to an unpublished non-precedential memorandum decision of ... th[is] Court filed after January 15, 2008. Non-precedential decisions ... may be cited for their persuasive value.”).

4 Appellant appears to challenge only his first-degree murder conviction, so

we do not address the sufficiency of the evidence for Appellant's remaining convictions.

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advising him that he may, in response to counsel’s stated intention to file an

Anders brief, exercise his right to proceed pro se or hire private counsel. We

misunderstood Appellant’s responsive filing to indicate his intention to proceed

pro se and, therefore, docketed the motion as a “Pro se Response to Anders

Brief” without entering an order in response to his motion seeking this Court’s

permission to proceed pro se.

Furthermore, Appellant has, in the meantime, exercised his right under

Anders to hire private counsel, as the record reflects not only Appellant’s pro

se request for transcripts but also the August 29, 2024, entry of private

counsel, Jay M. Nigrini, Esq. Given Appellant’s promptly filed pro se motion,

the miscommunication between him and this Court with respect to his motion,

and private counsel’s entry on his behalf, we grant private counsel 30 days

from the filing date of this decision to file with this Court either an advocate’s

brief or an Anders brief in the present appeal.5 Upon such filing, the

Commonwealth will have 30 days to file a responsive brief if it so chooses.

5 Appellant has exercised his right to file a pro se response seeking to raise

issues he believes are both meritorious and overlooked by counsel, see Commonwealth v. Flowers, 113 A.3d 1246, 1248–49 (Pa. Super. 2015) (after Anders brief has been filed, appellant has the right to proceed pro se or hire private counsel), and by subsequently hiring private counsel, the appellant has essentially filed an advocate's brief. Id.

Because Appellant has taken steps to have an advocate's brief filed on his behalf, we must review the counseled filing and forgo an independent review of the record that would typically follow a review of the Anders brief, for to conduct such a review and conclude that no non-frivolous issues exist therein (Footnote Continued Next Page)

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Attorney Bispel’s petition to withdraw is granted. Appellant’s pro se

motion to file a responsive brief through privately retained counsel is granted

in part, as counsel has 30 days from the filing date of this decision to file his

brief. The Commonwealth then will have 30 days to file a responsive brief.

Panel jurisdiction retained.

would render Appellant’s right under the Anders rubric to proceed pro se or to hire private counsel meaningless. Bennett, 124 A.3d at 333–34.

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