Commonwealth v. Torres-Olan

COMMONWEALTH OF PENNSYLVANIA v. SANTOS D. TORRES-OLAN Appellant

No. 1161 WDA 2021

No. J-S11037-22

Superior Court of Pennsylvania

December 1, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 25, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s) CP-25-CR-0001888-2015

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.:

Santos D. Torres-Olan ("Torres-Olan") appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA").^[1]Additionally Torres-Olan's counsel ("Counsel") has filed a petition to withdraw from representation and a "no-merit" brief pursuant Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).^[2] We affirm and grant Counsel's petition to withdraw.

We summarize the factual and procedural history of this matter from the record. On April 13, 2015, the Erie County Department of Public Safety received a 911 call and issued a dispatch that "a Hispanic male . . . pointed a gun at a female's face, and then he pointed [the gun] down to the ground and shot at her feet." See N.T. Trial Day 1, 2/12/16, at 44-45, 51. The dispatch described the man's clothing and indicated that he was walking on 18th Street away from the scene. See id. at 52. Police officers responded within twenty seconds of the dispatch and saw Torres-Olan, who matched the description in the dispatch, and ordered him to stop. See id. at 52-53. Torres-Olan continued walking away from the officers, pulled an object out of his waistband, and dropped it to his side. See id. at 53-54. The officers again ordered Torres-Olan to stop; he turned around to face the officers, stated that he did not do anything, and then complied with the officers' commands to lie on the ground. See id. at 54-55. When the officers picked him up off the ground, they discovered a pistol underneath him. See id. at 56. Torres-Olan told the officers, "I should have shot you both." See id.

Further investigations revealed that the pistol had a live round in the chamber, the ammunition in the pistol matched a shell casing recovered from the scene of the reported shooting, the pistol's serial number had been "drilled" or "obliterated," and Torres-Olan was not licensed to carry a firearm. See id. at 85-86, 89, 105. The Commonwealth charged Torres-Olan with two counts of terroristic threats and one count each of firearms not to be carried without a license and possession of a firearm with an altered manufacturer's number,^[3] among other offenses.

Nicole Sloane, Esquire ("Attorney Sloane"), of the Public Defender's Office, began representing Torres-Olan shortly after he was charged, and the case was held over to the court of common pleas in July 2015. Torres-Olan then attempted to file pro se documents with the trial court, including requests for discovery, letters to Attorney Sloane, and motions to dismiss the charges. In September 2015, Attorney Sloane filed a petition for leave to withdraw as counsel asserting that Torres-Olan "forfeited" his right to counsel due to his abusive and uncooperative conduct. See Petition for Leave to Withdraw as Counsel, 9/10/15, at 2 (unnumbered). The trial court held a hearing on Attorney Sloane's petition to withdraw, found that Torres-Olan forfeited his right to appointed counsel, and, following a brief colloquy, concluded that his decision to waive his right to counsel was knowing and voluntary. See N.T. Leave to Withdraw as Counsel Hearing, 9/28/15, at 5-6; see also Order, 9/28/15. Subsequently, at Torres-Olan's request, the trial court appointed Garrett Taylor, Esquire, as standby counsel ("standby counsel").

Torres-Olan proceeded to a jury trial with standby counsel. The Commonwealth, without objection, played a recording of the 911 call that initiated the police response.^[4] See N.T. Trial Day 1, 2/12/16, at 45. The Commonwealth also called the officers who responded to the call and investigated the incident. The jury found Torres-Olan guilty of two counts of terroristic threats and one count each of firearms not to be carried without a license and possession of a firearm with an altered manufacturer's number.^[5]Torres-Olan filed post-trial motions for judgments of acquittal and a new trial, which the trial court denied. The trial court imposed consecutive sentences totaling 115 to 230 months of imprisonment. Torres-Olan filed a postsentence motion to modify the sentence, which the trial court denied.

Following lengthy procedures not relevant to the present appeal, Torres-Olan had his direct appeal rights reinstated, and he appealed the judgment of sentence with William Hathaway, Esquire ("Attorney Hathaway") as his appointed counsel. See Commonwealth v. Torres-Olan, 225 A.3d 1200, 2019 WL 7372801, at *2 (Pa. Super. 2019) (unpublished memorandum), appeal denied, 237 A.3d 385 (Pa. 2020). This Court affirmed the judgment of sentence, and our Supreme Court denied allowance of appeal.

Torres-Olan timely filed the instant pro se PCRA petition challenging, in part, the adequacy of the trial court's colloquy when granting Attorney Sloane leave to withdraw and permitting him to proceed pro se. The PCRA court appointed new counsel ("prior PCRA counsel"), who filed a petition to withdraw because he believed Torres-Olan's claims were meritless.^[6] Despite prior PCRA counsel's petition to withdraw, the PCRA court held a hearing on April 29, 2021, limited to the issues of the adequacy of the trial court's waiver of counsel colloquy and Attorney Hathaway's failure to raise the claim in the direct appeal. See N.T. PCRA Hearing, 4/29/21, at 5-6. Torres-Olan, who was represented by prior PCRA counsel, testified at the hearing, as did Attorneys Sloane and Hathaway. The court denied Torres-Olan's PCRA petition on August 25, 2021, but did not grant prior PCRA counsel leave to withdraw.^[7]

Torres-Olan timely filed a pro se notice of appeal. Prior PCRA counsel took no action as to the appeal, and for reasons not apparent in the record, Counsel filed a Pa.R.A.P. 1925(b) statement on Torres-Olan's behalf. The PCRA court filed a statement in lieu of a Rule 1925(a) opinion adopting its August 25, 2021, order and opinion denying relief. Counsel filed a "no-merit" brief and a petition to withdraw, which this Court denied because Counsel had not ordered or reviewed the April 29, 2021, PCRA hearing transcript. See Commonwealth v. Torres-Olan, 2022 WL 2282715, at *2 (Pa. Super. June 23, 2022) (unpublished memorandum). We directed Counsel to order a transcript of the PCRA evidentiary hearing, supplement the record with the transcript, and file an advocate's brief or an amended "no-merit" brief following her further review. See id. Counsel has complied with our prior directives and filed a new petition to withdraw and "no-merit brief."

When presented with a "no-merit" brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw. See Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019). A Turner/Finley brief must: (1) detail the nature and extent of counsel's review of the case; (2) list each issue the appellant wishes to have reviewed; and (3) explain counsel's reasoning for concluding that the appellant's issues are meritless. See id. Counsel must send a copy of the brief to the appellant, along with a copy of the petition to withdraw, and inform the appellant of the right to proceed pro se or to retain new counsel. See id. If the brief meets these requirements, this Court will conduct an independent review of the issues. See id.

Our review of the petition to withdraw and "no-merit" brief reveals that Counsel substantially complied with Turner/Finley's procedural requirements by detailing her review of the case, listing the issue Torres-Olan wished to raise, and explaining why she believed this appeal to be frivolous. See Knecht, 219 A.3d at 691; see also Petition for Leave to Withdraw as Counsel, 8/22/22, at 1-2; "No-Merit" Brief at 6-7, 9, 10-11. Counsel has also attached to her petition to withdraw a letter to Torres-Olan advising him of his right to proceed pro se or with private counsel and stating that she provided him with a copy of her petition and brief. See Petition for Leave to Withdraw as Counsel, 8/22/22, at 2 and Attachment. Therefore, we will conduct an independent review of the issues.

Counsel identifies the following issues for review:

Did the court in this case err in failing to ensure that [Torres-Olan] received a proper colloquy prior to [Attorney Sloane] withdrawing from the case, and thus violating his right to counsel?

Did the court err in ruling that [Torres-Olan's] right to confront his accuser was not violated when a 911 recording was introduced at trial without [Torres-Olan] being able to cross-examine and/or confront the "accusers" in the recording?

Did the court err in ruling that appellate trial counsel was effective when trial counsel failed to raise arguments on appeal regarding the weight and sufficiency of the evidence and the issue regarding the 911 tape?

"No-Merit" Brief at 2.^[8]

The scope and standard of reviewing the denial of PCRA relief are well settled:

[O]ur scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court's factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Isaac, 205 A.3d 358, 362 (Pa. Super....