Com. v. Ruiz, B.

• Court: Superior Court of Pennsylvania
• Decided: April 16, 2024
• Docket: 990 MDA 2023
• Status: Unpublished

Opinion

J-S08039-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BENJAMIN A. RUIZ : : Appellant : No. 990 MDA 2023

Appeal from the Judgment of Sentence Entered June 12, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003410-2022

BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 16, 2024

Appellant, Benjamin A. Ruiz, appeals from the judgment of sentence

entered in the Court of Common Pleas of Lancaster County on June 12, 2023.

We affirm and grant counsel’s application to withdraw.

The relevant facts and procedural history are as follows: On August 20,

2021, several Lancaster City police officers observed Appellant sell 0.4 grams

of cocaine to a confidential informant (CI). N.T. at 179. The officers were

conducting a surveillance operation in the area of 50 Stevens Avenue, a

location at which the CI had previously been involved in operations. N.T. at

107. It was prearranged that the CI would use $40 of documented “buy

money” to purchase cocaine. N.T. at 99-100. Detective Jacob Bingham

observed the CI make contact with a middle-aged Hispanic male with a

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* Former Justice specially assigned to the Superior Court. J-S08039-24

mustache, glasses, and a peach-colored t-shirt who was identified as

Appellant. N.T. at 109. Appellant conversed with the CI, entered the driver's

seat of his vehicle, a silver Nissan hatchback, and then engaged in a hand-to-

hand transaction. N.T. at 110. The CI returned to Detective Bingham and

handed him two baggies of cocaine which the CI had just obtained from

Appellant. N.T. at 116.

Another officer, William Hamby, drove past Appellant and his vehicle at

a speed of approximately five miles per hour in order to view Appellant’s face

and vehicle information. N.T. at 168-69. Officer Hamby recorded the Nissan’s

registration number and identified the suspect as a light-skinned Hispanic

male wearing a peach-colored shirt and glasses with a mustache. N.T. at 168.

The officers searched the JNET system for the vehicle’s owner, and their

search revealed a photo of Appellant, Benjamin Ruiz. N.T. at 123. Detective

Bingham and Officer Hamby both testified that the JNET photo of the vehicle’s

owner was the man they observed make the drug transaction. N.T. at 123,

174. A third officer, Brandon McCormick, the primary officer on the

surveillance operation, also testified at trial to the details of the operation.

During the operation, he was located nearby in a vehicle which was not in

direct sight of the drug transaction. N.T. at 151. He communicated with the

officers involved through radio channels and audio monitoring. N.T. at 150-

53.

The trial occurred on March 13-14, 2023, and Appellant was convicted

by a jury of the sole charge. N.T. at 226. Appellant was sentenced on June

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12, 2023, to six to twenty-three months of house arrest. Defense counsel filed

a notice of appeal on July 12, 2023. On August 3, 2023, Defense Counsel filed

a Statement of Intent to File Anders/McClendon Brief in Lieu of Statement

of Errors Complained of on Appeal. The trial court filed a Statement in Lieu of

Opinion on October 16, 2023.

On January 9, 2024, counsel filed in this Court a petition seeking to

withdraw his representation, as well as an Anders brief. Appellant filed no

further submissions either pro se or through privately retained counsel.

Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa. Super. 2007) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal

pursuant to which counsel must:

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 [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders 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

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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, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her 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) (citation omitted). Substantial compliance with the

Anders requirements is sufficient. See id.

Herein, counsel filed a petition to withdraw as counsel and an Anders

brief. After review of the Anders/McClendon Brief, we find that counsel

sufficiently complied with the procedural requirements of Anders v.

California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981), and their progeny. The brief contains a factual and

procedural summary, a conclusion that the appeal is frivolous, and counsel’s

reasoning for it. Appellant’s Br. at 6. Attached to the application to withdraw

was a copy of a letter advising Appellant of his rights pursuant to

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

Millisock letter and certificates of service attached to the brief and application

to withdraw indicate Appellant was served a copy of the documents. Counsel

has also substantially complied with the requirements set forth in

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Therefore, we

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proceed to examine the issues counsel identified in the Anders brief and then

conduct “a full examination of all the proceedings, to decide whether the case

is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.

Super. 2018) (en banc) (quotation omitted).

Counsel raises the following issue on Appellant’s behalf:

Should appellate counsel be granted leave to withdraw as counsel because any appellate issues in the instant case are frivolous?

Appellant’s Br. at 4.

The first issue set forth by counsel on appeal challenges the sufficiency

of the evidence. The standard of review of a challenge to the sufficiency of the

evidence follows:

The standard we apply when 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.

Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009). “[T]his

Court may not substitute its judgment for that of the factfinder, and where

the record contains support for the convictions, they may not be disturbed.”

Commonwealth v. Smith, 146 A.3d 257, 261 (Pa. Super. 2016) (citations

omitted). The finder of fact is permitted to believe all, part, or none of the

evidence presented at trial. Id. at 262.

Appellant was convicted of delivery of cocaine pursuant to section 35

P.S. § 780-113(a)(30) which states:

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(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: . . . (30) . . . the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act[.]

35 P.S. § 780-113(a)(30). “Delivery is defined as ‘the actual, constructive or

attempted transfer from one person to another of a controlled substance....’”

Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. Super. 1994), appeal

denied, 659 A.2d 986 (1995) (quoting 35 P.S. § 780-102).

Instantly, the police utilized a CI to conduct a controlled purchase of

cocaine on August 20, 2021. Detective Bingham testified that he observed

Appellant sell cocaine directly to the CI through a hand-to-hand transaction.

The CI handed Appellant $40 of United States currency which was previously

documented as “buy money.” N.T. at 106. The parties stipulated that the

substance transferred by Appellant was 0.4 grams of cocaine. N.T. at 178,

218.

Detective Bingham closely observed Appellant’s face and vehicle, and

had another officer record the vehicle’s license plate number. N.T. at 109.

Upon viewing the JNET results showing a photo of the vehicle’s owner,

Detective Bingham identified the owner as Appellant, the man he observed

engage in the drug transaction with the CI. N.T. at 123. Lancaster City Police

Officer Hamby, a secondary surveillance officer on the August 20 operation,

located Appellant and drove by him to get an accurate description of him and

his vehicle. N.T. at 168. Officer Hamby also confirmed that the photo of the

registered owner of the vehicle matched the identity of Appellant. N.T. at 174.

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Based upon the foregoing, sufficient evidence supported Appellant's

convictions for three counts of delivery of a controlled substance. See 35 P.S.

780-113(a)(30). See also Commonwealth v. McLean, 578 A.2d 4 (Pa.

Super. 1990) (holding sufficient evidence supported defendant's convictions

for two counts of delivery of controlled substance; undercover state trooper

testified that he personally purchased cocaine from defendant on two

occasions at defendant's apartment; trooper positively identified defendant as

seller). Accordingly, Appellant’s first claim fails.

The second issue counsel sets forth is a Batson1 issue. During voir dire,

Appellant’s trial counsel raised a Batson challenge when the prosecutor

exercised two peremptory strikes against Hispanic jurors. N.T. at 47. The trial

court heard arguments from each attorney and denied the Batson challenge.

N.T. at 49.

We review a trial court's denial of a Batson claim for clear error.

Commonwealth v. Cook, 952 A.2d 594, 603 (Pa. 2008) (stating that the

trial court's decision on the ultimate question of discriminatory intent

represents a finding of fact that is accorded great deference on appeal and

will not be overturned unless clearly erroneous). Batson and its progeny

established a three-part inquiry for evaluating a claim of racial discrimination

in jury selection.

[T]he [movant] has to initially establish a prima facie showing that the circumstances give rise to an inference that the [opposing ____________________________________________

1 Batson v. Kentucky, 476 U.S. 79 (1986).

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party] struck one or more prospective jurors on account of race. If the prima facie showing is made, the burden shifts to the [opposing party] to articulate a race-neutral explanation for striking the juror(s) at issue. The trial court ultimately makes a determination of whether the [movant] has carried [the] burden of proving purposeful discrimination.

Commonwealth v. Sanchez, 36 A.3d 24, 44 (Pa. 2011).

The requirements for a prima facie Batson showing are well settled:

Generally, in order ... to satisfy the first requirement of demonstrating a prima facie Batson claim, the movant must establish that he or she is a member of a cognizable racial group, that the opposing party exercised peremptory challenges to remove from the venire members of his or her race, and that other relevant circumstances combine to raise an inference that the opposing party removed the jurors for racial reasons. Whether the movant has carried this threshold burden of establishing a prima facie case should be determined in light of all the relevant circumstances. A showing that a number of strikes were used against venirepersons of one race will not, without more, create the inference necessary to establish a prima facie Batson claim. Rather, our Supreme Court has continually recognized that a moving party must preserve a full and complete record of the asserted Batson violation, as it would otherwise be impossible to conduct meaningful appellate review of the motivations of prosecutors in individual cases without such a record. This full and complete record requirement necessitates that the movant make a record identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury. When a movant fails to make such a record, we cannot review the trial court's determination that a movant failed to establish a prima facie case under Batson.

Commonwealth v. Thompson, 106 A.3d 742, 751-52 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

Here, Appellant’s trial counsel raised a Batson claim after the

Commonwealth exercised its fifth peremptory challenge as to Juror 333. N.T.

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at 47-48. Appellant’s counsel made a record identifying only the race of Jurors

290 and 333; Appellant failed to state the race of any other venirepersons or

identify on the record the racial composition of the jury. Id. The only evidence

of record as to the racial makeup of the venirepersons or the jury was stated

by the prosecutor, who indicated that of the five peremptory strikes at that

point, two were Hispanic and three were not, and other Hispanic individuals

were on the panel. N.T. at 49. Because Appellant failed to make the requisite

full and complete record to facilitate appellate review, we cannot address this

claim. See Thompson, supra. Thus, Appellant is entitled to no relief on his

Batson claim.

The final issue counsel sets forth is a challenge to the police

identification of Appellant. During cross-examination of Officer Hamby,

Appellant’s trial counsel questioned him about the photo identification,

pointing out that the officers viewed only one photo of Appellant—after

searching his vehicle on JNET—and did not produce a photo lineup. N.T. at

174. However, any claim regarding the photo identification is waived because,

as counsel acknowledges, “this issue was not raised at trial, other than

through cross-examination of the police officers, so the potentially tainted

identification was properly considered by the jury and there is no issue to raise

on appeal.” Appellant’s Br. at 14. It is well-settled “the failure to raise a

suppression issue prior to trial precludes its litigation for the first time at trial,

in post-trial motions or on appeal.” Commonwealth v. Douglass, 701 A.2d

1376, 1378 (Pa. Super. 1997) (citation omitted). See also Pa.R.A.P. 302

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(“Issues not raised in the trial court are waived and cannot be raised for the

first time on appeal.”). Here, Appellant’s trial counsel did not file a suppression

motion regarding the JNET photo identification, did not object to the

identification testimony at trial, and did not preserve this claim through any

post-sentence motion. Therefore, it is waived.

After examining the issues contained in the Anders brief, we agree with

counsel that the appeal is wholly frivolous. “Furthermore, after conducting a

full examination of all the proceedings as required pursuant to Anders, we

discern no non-frivolous issues to be raised on appeal.” Yorgey, 188 A.3d at

1195. Thus, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/16/2024

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