J-S19030-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANGEL JOSE SANTIAGO-RODRIGUEZ : : Appellant : No. 1636 MDA 2023
Appeal from the Judgment of Sentence Entered October 7, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002449-2021
BEFORE: DUBOW, J., BECK, J., and COLINS, J.*
MEMORANDUM BY BECK, J.: FILED AUGUST 15, 2024
Angel Jose Santiago-Rodriguez (“Santiago-Rodriguez”) appeals from the
judgment of sentence imposed by the Berks County Court of Common Pleas
(the “trial court”) following his convictions of flight to avoid apprehension,
escape, resisting arrest, unsworn falsification to authorities, false identification
to law enforcement officer, fleeing and eluding police, and various summary
offenses.1 Santiago-Rodriguez’s counsel, Attorney Douglas J. Waltman
(“Counsel”), seeks to withdraw from representation pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 5126(a), 5121(a), 5104, 4904(a)(1), 4914(a)(1); 75 Pa.C.S.
§ 3733(a). J-S19030-24
A.2d 349, 361 (Pa. 2009). Upon review, we grant Counsel’s petition to
withdraw and affirm Santiago-Rodriguez’s judgment of sentence.
On July 5, 2021, Officer Kevin Mickle observed a silver-colored Ford
traveling southbound on Pottsville Pike. Officer Mickle checked the vehicle
registration, which indicated that the male co-owner of the vehicle had a
suspended license.2 Officer Mickle observed the driver of the vehicle matched
the characteristics of the photograph of the owner on the computer screen.
Based upon his observations, Officer Mickle activated his emergency lights,
and initiated a traffic stop.
Officer Mickle approached the vehicle and observed the driver and a
female passenger. He asked the driver for his license, registration, and
insurance information. Santiago-Rodriguez provided Officer Mickle with his
registration and insurance but indicated that he did not have his license.
Santiago-Rodriguez then provided Officer Mickle with a fake name, “Gerrado
Santiago,” birthdate and phone number. Officer Mickle could not find the
license in the database; he then went back to speak to Santiago-Rodriguez.
Officer Mickle informed Santiago-Rodriguez that he would be arrested if he
gave false information. Santiago-Rodriguez indicated his license was from
Puerto Rico. Officer Mickle then asked dispatch to check the name in Puerto
Rico. As Officer Mickle was waiting for the results, Santiago-Rodriguez fled
2 The vehicle was co-owned by a male and female. Santiago-Rodriguez is not one of the owners of the car.
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the scene. Officer Mickle pursued him in his police cruiser. After a chase
lasting three to five minutes, during which Officer Mickle indicated he was
driving 100 miles per hour in a 55 mile-per-hour zone, Santiago-Rodriguez
stopped the car, alighted from the driver’s side door, and jumped into the
Schuylkill River. Officer Mickle ran after Santiago-Rodriguez, but failed to
apprehend him. In the meantime, the female passenger riding with Santiago-
Rodriguez drove the car away. Officer Mickle again pursued the vehicle. Upon
stopping the vehicle for a second time, Officer Mickle obtained Santiago-
Rodriguez’s identity from the female driver and found that he was wanted for
a felony. Around an hour after the initial traffic stop, police apprehended
Santiago-Rodriguez as he was exiting the river. At the time of his arrest,
Santiago-Rodriguez was on parole at a treatment facility that he had left on
June 13, 2021, without permission and in violation of the rules.
Santiago-Rodriguez filed a pre-trial motion to suppress, arguing that
Officer Mickle did not have a reasonable basis for the traffic stop. The trial
court held a hearing, after which it denied the motion. The case ultimately
proceeded to a jury trial in September 2022, following which the jury found
Santiago-Rodriguez guilty of the aforementioned crimes.3 The trial court
sentenced Santiago-Rodriguez to four to nine years in prison, followed by five
years of special probation, and the payment of fines.
3 The trial court found him guilty of the summary offenses.
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Santiago-Rodriguez filed a notice of appeal nunc pro tunc.4 Both the
trial court and Santiago-Rodriguez have complied with Rule 1925 of the
Pennsylvania Rules of Appellate Procedure.
Counsel filed an Anders brief and petition to withdraw as counsel in this
Court. When faced with an Anders brief, we may not review the merits of
the underlying issues or allow withdrawal without first deciding whether
counsel has complied with all requirements set forth in Anders and
Santiago. Commonwealth v. Cox, 231 A.3d 1011, 1014 (Pa. Super. 2020).
There are mandates that counsel seeking to withdraw pursuant to Anders
must follow, which arise because a criminal defendant has a constitutional
right to a direct appeal and to be represented by counsel for the pendency of
that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.
2007). We have summarized these requirements as follows:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention. ____________________________________________
4 Santiago-Rodriguez’s initial appeal was dismissed for failure to file a brief.
Subsequently, he filed a petition pursuant to the Post Conviction Relief Act (“PCRA”), seeking the reinstatement of direct appeal rights. The PCRA court granted the petition, and this appeal followed.
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If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on [a]ppellant’s behalf).
Id. (citations omitted).
Additionally, Santiago sets forth precisely what an Anders brief must
contain:
[T]he Anders brief that accompanies court-appointed counsel’s petition to withdraw … 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. If counsel has satisfied the above requirements,
it is then this Court’s duty to conduct its own review of the record to determine
whether there are any non-frivolous issues that the appellant could raise on
appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (en banc).
Instantly, we conclude that Counsel has complied with the requirements
outlined above. Counsel has filed a petition with this Court stating that after
reviewing the record, he finds this appeal to be wholly frivolous. Petition to
Withdraw as Counsel, 2/26/2024. In conformance with Santiago, Counsel’s
brief includes summaries of the facts and procedural history of the case and
discusses the issue he believes might arguably support Santiago-Rodriguez’s
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appeal. See Anders Brief at 1. Counsel’s brief further includes discussion of,
and citation to, relevant authority in support of his conclusion that the appeal
is frivolous. Id. at 2-5. Finally, Counsel attached to his petition to withdraw
the letter he sent to Santiago-Rodriguez, which enclosed Counsel’s petition
and Anders brief. Petition to Withdraw as Counsel, 2/26/2024. Counsel’s
letter advised Santiago-Rodriguez of his right to proceed pro se or with private
counsel, and to raise any additional issues that he deems worthy of this court’s
consideration. Id.
Because Counsel has complied with the procedural requirements for
withdrawing from representation, we turn our attention to the issues Counsel
identifies in his Anders brief5: (1) the trial court utilized an incorrect offense
gravity score “OGS” when sentencing Santiago-Rodriguez for his conviction of
flight to avoid apprehension; (2) the trial court failed to properly weigh
mitigating factors when imposing the sentence; (3) the trial court erred in
denying his motion to suppress base on the impropriety of the vehicle stop.
See Anders Brief at 2-5.6
5 We note with disapproval that Counsel failed to include a Statement of Questions Involved section in his brief. This is required by our Rules of Appellate Procedure. See Pa.R.A.P. 2116(a). Counsel also failed to include a Statement of Jurisdiction, which our rules require. See Pa.R.A.P 2114. Counsel is reminded that compliance with the Rules is not excused in the Anders context.
6 Santiago-Rodriguez filed a pro se response to Counsel’s petition to withdraw
as counsel, requesting that the petition be denied. Response at 2. In the (Footnote Continued Next Page)
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The first two issues raised in Santiago-Rodriguez’s Anders brief are
addressed to alleged errors that occurred at sentencing. He first argues that
the trial court relied on an improper OGS of five for his flight to avoid
apprehension conviction. See id. at 2-3. He further argues that the court
applied insufficient weight to mitigating factors when rendering his sentence.
Id. at 3. Both claims challenge the discretionary aspects of his sentence. See
Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012)
(explaining that a sentencing court’s application of an allegedly incorrect OGS
challenges the discretionary aspects of sentencing); see also
Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super. 2010) (a claim
that the sentencing court failed to consider mitigating factors is a challenge to
the discretionary aspects of sentencing). “A challenge to the discretionary
aspects of a sentence must be considered a petition for permission to appeal,
as the right to pursue such a claim is not absolute.” Commonwealth v.
Baker, 311 A.3d 12, 18 (Pa. Super. 2024) (citation omitted). To invoke this
Court’s jurisdiction, an appellant must satisfy a four-part test:
response, Santiago-Rodriguez states that if Counsel is permitted to withdraw, he would be forced to litigate legal claims that “he is unskilled to formulate.” Id. at 3. Santiago-Rodriguez asks that this Court address the claims raised in his concise statement. Id. at 4. Santiago-Rodriguez also requests “if this court finds any conflicts between [Santiago-Rodriguez] and present counsel” that we appoint new counsel to represent him on appeal. Id. Finally, Santiago-Rodriguez identifies one issue that he states should have been raised on appeal—a photograph that he has of the male co-owner of the vehicle that he asserts should have been admitted into evidence. Id. We address Santiago-Rodriguez’s additional claim of error below.
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(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post-sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.
Commonwealth v. Rivera, 312 A.3d 366, 376-77 (Pa. Super. 2024) (citation
and brackets omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Lawrence, 313
A.3d 265, 285 (Pa. Super. 2024) (citation omitted). We have found that a
substantial question exists “when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Id. (citation
omitted).
Our review of the record reveals that Santiago-Rodriguez properly
preserved his discretionary aspects of sentencing claims in a post-sentence
motion and filed a timely notice of appeal. See Post-Sentence Motion,
10/17/2022; see also Notice of Appeal, 11/4/2022. Although Santiago-
Rodriguez has not complied with Pa.R.A.P 2119(f), the Commonwealth does
not object to his failure to include a Rule 2119(f) statement; therefore, we
may ignore the omission. Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.
Super. 2004); see also Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.
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Super. 2015) (“Where counsel files an Anders brief, this Court has reviewed
the matter even absent a separate Pa.R.A.P. 2119(f) statement.”).
Santiago-Rodriguez’s claim that the trial court relied on an improper
OGS raises a substantial question for our review. See Commonwealth v.
Troell, 290 A.3d 296, 299 (Pa. Super. 2023) (holding that a claim that OGS
was incorrectly calculated raises a substantial question). “Generally, we
review a misapplication of the Sentencing Guidelines for an abuse of
discretion. However, the calculation of the offense gravity score is a matter
of statutory interpretation, which raises a question of law. This Court reviews
questions of law under a de novo standard of review.” Id. (citations, quotation
marks, and brackets omitted).
We begin with his claim that the trial court incorrectly used an OGS
score of five, instead of two, when sentencing him for his conviction of flight
to avoid apprehension. Our Crimes Code defines flight to avoid apprehension
as a third-degree felony if the defendant willfully conceals himself or moves
or travels within or outside this Commonwealth with the intent to avoid
apprehension[.]” 18 Pa.C.S. § 5126(a). It is a second-degree misdemeanor,
however, if “the crime which he has been charged with or has been convicted
of is a misdemeanor.” Id. If flight to avoid apprehension is graded as a third-
degree felony, the OGS is five; if it is a second-degree misdemeanor, the OGS
is two. 204 Pa. Code § 303.15.
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At trial, Santiago-Rodriguez’s parole agent, Brian Hess, indicated that
Santiago-Rodriguez left a treatment facility in violation of his parole, and a
warrant had been issued for failure to comply with treatment. N.T., 9/21-
22/2022, at 80-82. Santiago-Rodriguez was on parole for felony robbery and
firearms offenses. Id. at 81. A parole violator faces his original charges when
brought back before the court for resentencing. See Commonwealth v.
Diaz, 314 A.3d 852, 854 (Pa. Super. 2024) (finding that “a court faced with
a parole violation must recommit the parolee to serve the remainder of the
original sentence of imprisonment”) (citations omitted); see also 42 Pa.C.S.
§ 9761(b) (“If the defendant is released by such other authority before the
expiration of the minimum time imposed by the court, he shall be returned to
a correctional institution of the Commonwealth to serve the time which
remains of the sentence.”). As Santiago-Rodriguez’s flight was to avoid
apprehension for his prior felony convictions, not misdemeanors, there is no
basis to conclude that the trial court erred by using an OGS score of five.
Counsel is therefore correct that raising this issue on appeal would be
frivolous.
Turning to his claim that the trial court failed to properly weigh the
mitigating evidence at sentencing (including “the fact that he wasn't armed at
the time of his offenses, that his parole warrant was based merely on a
technical violation of parole …, and that he didn't intend to harm anyone”),
this does not raise a substantial question for our review. See
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Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (stating
that the trial court’s failure to give adequate weight to mitigating factors does
not raise a substantial question). In any event, it is not within the purview of
our review to determine the appropriate weight to be given to mitigating
factors by the sentencing court. See Commonwealth v. Sexton, 222 A.3d
405, 422 (Pa. Super. 2019) (noting that “given our deferential standard of
review when considering a challenge to the discretionary aspects of
sentencing, it would be inappropriate for us to second-guess the trial court’s
weighing of [mitigating] factors”). This is particularly true where, as here, the
sentencing court had the benefit of a presentence investigation report, which
gives rise to the presumption that “the sentencing court was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (citation and quotation marks
omitted). Therefore, we agree with Counsel that pursuit of this claim on
appeal would likewise be frivolous.
In his third claim, Santiago-Rodriguez contends that the trial court erred
and abused its discretion by failing to grant his suppression motion.
Specifically, he challenges the legality of the traffic stop, which he asserts was
made without the requisite reasonable suspicion and contends that because
his flight that came after the stop, evidence thereof was subject to suppression
as fruit of the poisonous tree. Anders Brief at 4-5.
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We review suppression claims according to the following standard: Our standard of review addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. The suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.
Commonwealth v. Carey, 249 A.3d 1217, 1223 (Pa. Super. 2021) (citation
The Vehicle Code provides: “Whenever a police officer ... has reasonable
suspicion that a violation of this title is occurring or has occurred, he may stop
a vehicle ... to secure such [ ] information as the officer may reasonably
believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S. §
6308(b); see Commonwealth v. Venable, 200 A.3d 490, 498 (Pa. Super.
2018). “Reasonable suspicion” is less stringent than probable cause, requiring
only that the officer “point to ‘specific and articulable facts’ leading him to
suspect criminal activity is afoot.” Commonwealth v. Holmes, 14 A.3d 89,
95 (Pa. Super. 2011). To determine if an officer had reasonable suspicion,
the totality of the circumstances must be considered. Commonwealth v.
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Davis, 102 A.3d 996, 1000 (Pa. Super. 2014). “In assessing the totality of
the circumstances, a court must give weight to the inferences that a police
officer may draw through training and experience.” Id. (citation omitted).
“Also, the totality of the circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate criminal conduct. Rather,
even a combination of innocent facts, when taken together, may warrant
further investigation by the police officer.” Id. (citation omitted).
Here, on July 5, 2021, Officer Mickle was parked in his patrol car on the
median of Route 61, running license plates and registrations. N.T.,
9/16/2021, at 4-5. Around 6:00 p.m., Officer Mickle observed a Ford driving
southbound, and ran its information through the computer system. Id. at 6.
Officer Mickle discovered that the vehicle was co-owned by a man and a
woman, and the male owner had a suspended license. Id. at 6, 8; see also
id. at 8 (noting the computer showed photographs of the male and female
owners of the vehicle). Officer Mickle drove after the Ford to see who was
driving, and after pulling next to the vehicle, noticed that the driver had the
same characteristics as the male owner of the vehicle, including that he was
a white Hispanic man in his 30s, overweight, and had little to no hair. Id. at
6, 8, 9-10. Because of the similarity between the driver and the owner of the
vehicle, Officer Mickle stopped the vehicle. Id. at 10.
Our case law unquestionably supports a finding that Officer Mickle had
reasonable suspicion to believe a violation of the Vehicle Code was occurring
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when he knew a co-owner of the vehicle had a suspended license and observed
that the driver matched the description of the co-owner on the computer. See
Commonwealth v. Hilliar, 943 A.2d 984, 990 (Pa. Super. 2008) (holding
that officer had reasonable suspicion to conduct traffic stop of vehicle where
computer check revealed owner of vehicle had a suspended license and the
driver of the vehicle matched the owner’s description); see also
Commonwealth v Farnan, 55 A.3d 113, 118 (Pa. Super. 2012) (concluding
that officer articulated sufficient facts to provide reasonable suspicion to
support the traffic stop where officer observed a vehicle driven by appellant,
who the officer knew had a suspended license). Therefore, the trial court
properly denied the motion to suppress the evidence, and this claim is
Lastly, we address Santiago-Rodriguez’s claim in his response to the
Anders brief and Counsel’s petition to withdraw that the trial court erred by
failing to allow admission of photographs of the real owner of the vehicle. The
record reflects, however, that the Commonwealth presented the photograph
of the male owner of the vehicle at the suppression hearing, and the
photograph was admitted into evidence. See N.T., 9/16/2021, at 9, 10
(Commonwealth Ex. 1) (noting that the picture that was introduced at the
hearing was that of the male co-owner of the vehicle). Accordingly, this claim
is also frivolous.
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Our independent review of the record reveals no non-frivolous issues
that Santiago-Rodriguez could raise on appeal. See Dempster, 187 A.3d at
272. We therefore grant Counsel’s petition to withdraw and affirm Santiago-
Rodriguez’s judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 08/15/2024
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