J-S35004-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

REYNALDO MERCADO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 428 MDA 2021

Appeal from the Judgment of Sentence Entered November 19, 2020

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0004049-2018

BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 11, 2022

Appellant, Reynaldo Mercado, appeals from the judgment of sentence 

entered on November 19, 2020, as made final by the denial of his 

post-sentence motions on March 19, 2021. In this direct appeal, Appellant's 

counsel filed a petition for leave to withdraw and an accompanying brief 

pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth 

v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant's counsel 

has complied with the procedural requirements necessary to withdraw. 

Nevertheless, after independently reviewing the record, we cannot conclude, 

for the reasons explained more fully below, that the appeal is wholly frivolous. 

We therefore deny counsel's petition to withdraw and direct counsel to file an 

advocate’s brief.

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* Retired Senior Judge assigned to the Superior Court.
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This case arose out of the fatal stabbing of Fred Boote which occurred 

during the early morning hours of September 14, 2018 at his residence located 

in Wilkes-Barre, Luzerne County, Pennsylvania. At the conclusion of trial on 

November 18, 2020, a jury found Appellant guilty of first-degree murder, 

second-degree murder, third-degree murder, burglary, robbery, criminal 

conspiracy to commit robbery, theft by unlawful taking or disposition, arson, 

criminal conspiracy to commit arson, abuse of a corpse, and tampering with 

or fabricating physical evidence.1 On November 19, 2020, the court imposed 

an aggregate sentence of life imprisonment plus 32 to 64 years’ incarceration.2

Appellant filed a post-sentence motion on November 24, 2020. That 

motion was denied on March 19, 2021. Appellant then filed his notice of 

appeal on April 7, 2021. The trial court directed Appellant to file a concise 

statement pursuant to Pa.R.A.P. 1925(b) and Appellant timely complied with 

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1 18 Pa.C.S.A. §§ 2502(a), 2502(b), 2502(c), 3502(a)(1)(i), 3701(a)(1)(i), 

903(a) and 3701(a)(1)(i), 3921(a), 3301(a)(1)(ii), 903(a) and 3301(a)(1)(ii), 

5510, and 4910(1), respectively.

2 For sentencing purposes, the trial court merged Appellant’s second- and 

third-degree murder convictions with his conviction for first-degree murder. 

In addition, the court imposed consecutive sentences of 72 to 144 months for 

burglary, 96 to 192 months for robbery, 72 to 144 months for criminal 

conspiracy to commit robbery, 72 to 144 months for arson, 60 to 120 months 

for criminal conspiracy to commit arson, 12 to 24 months for abuse of corpse, 

and a concurrent term of 6 to 12 months for tampering with or fabricating 

physical evidence. The court imposed a $100.00 fine for theft by unlawful 

taking or disposition. All of the non-homicide offenses fall within the standard 

range of the sentencing guidelines. Appellant received credit for serving 796 

days of incarceration prior to sentencing. See Trial Court Opinion, 6/4/21, at 

3 (unpaginated).
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the court’s order on April 27, 2021. The trial court issued its Rule 1925(a) 

opinion on June 4, 2021.

“In order to withdraw from appellate representation pursuant to 

Anders, certain procedural and substantive requirements must be met.” 

Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017). 

Procedurally, 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 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 359. Substantively, counsel must file an Anders brief, in which counsel:

(1) provide[s] a summary of the procedural history and facts, with 

citations to the record; (2) refer[s] to anything in the record that 

counsel believes arguably supports the appeal; (3) set[s] forth 

counsel's conclusion that the appeal is frivolous; and (4) state[s] 

counsel's reasons for concluding that the appeal is frivolous.

Commonwealth v. Hankerson, 118 A.3d 415, 419–420 (Pa. Super. 2015), 

quoting Santiago, 978 A.2d at 361.

In this case, counsel has complied with Anders' procedural and 

substantive requirements.3 “Therefore, we now have the responsibility ‘to 

make a full examination of the proceedings and make an independent 

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3 Appellant has not responded to counsel’s petition to withdraw.
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judgment to decide whether the appeal is in fact wholly frivolous.’” 

Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016).

The Anders brief filed by Appellant's counsel raises two issues. The 

first issue asserts that the Commonwealth failed to introduce sufficient 

evidence to establish that Appellant committed first-degree murder, 

second-degree murder, burglary, robbery, conspiracy to commit robbery, 

theft by unlawful taking or disposition, arson, abuse of corpse, and tampering 

with physical evidence. The second issue asserts that the trial court abused 

its discretion by imposing consecutive, rather concurrent, sentences. Counsel 

concludes that, based upon his review of the notes of testimony and applicable 

case law, these challenges lack merit and are wholly frivolous.

We are unable to assess the claims raised in the Anders brief as our 

independent review has uncovered a non-frivolous issue in this appeal. See 

Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa. Super. 2007) (“if 

there are non-frivolous issues, [Superior Court] will deny the petition [to 

withdraw] and remand for the filing of an advocate's brief”). Here, the jury 

found Appellant guilty of criminal conspiracy to commit robbery and criminal 

conspiracy to commit arson. At sentencing, the trial court imposed separate 

punishments for each conspiracy conviction. 

The conspiracy statute provides that, “[i]f a person conspires to commit 

a number of crimes, he is guilty of only one conspiracy so long as such multiple 

crimes are the object of the same agreement or [a] continuous conspiratorial 
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relationship.” 18 Pa.C.S.A. § 903(c). In determining whether a particular case 

involves one or more conspiracies, we consider several factors.

The factors most commonly considered in a totality of the 

circumstances analysis of the single vs. multiple conspiracies issue 

... are: the number of overt acts in common; the overlap of 

personnel; the time period during which the alleged acts took 

place; the similarity in methods of operation; the locations in 

which the alleged acts took place; the extent to which the 

purported conspiracies share a common objective; and, the 

degree to which interdependence is needed for the overall 

operation to succeed.

Commonwealth v. Savage, 566 A.2d 272, 278 (Pa. Super. 1989). If a 

defendant establishes that multiple crimes were the object of the same 

agreement or a continuous conspiratorial relationship, he cannot be punished 

separately for multiple conspiracy convictions since multiple sentences under 

such circumstances are precluded by statute. See Commonwealth v. Davis, 

704 A.2d 650, 654-655 (Pa. Super. 1997), appeal denied, 719 A.2d 744 (Pa. 

1998), cert. denied, 525 U.S. 1026 (1998).

In finding that sufficient evidence supported Appellant’s conviction for 

conspiracy to commit robbery, the trial court observed that Appellant and 

another individual agreed to rob the victim by taking or exercising control over 

his personal property and that the victim was killed during the theft. In 

addition, the court found sufficient evidence to support Appellant’s conviction 

for conspiracy to commit arson because, shortly after the theft and the killing 

occurred, Appellant and the same individual agreed to use gasoline to burn 

the victim’s body and his residence. Under these circumstances, a 
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non-frivolous issue emerges as to whether the robbery of the victim and the 

burning of his body and residence were the object of a single agreement or 

part of a continuous conspiratorial relationship. As appellate review of this 

issue would benefit from adversarial input by the parties, we direct counsel 

for Appellant to file an advocate’s brief. Appellant’s brief shall be filed within 

30 days of the date of this memorandum. Appellee, the Commonwealth, shall 

file its brief within 30 days after service of Appellant’s brief. Appellant may 

file a reply brief within 14 days after service of Appellee’s brief.

Petition to withdraw as counsel denied. Counsel directed to file an 

advocate’s brief in accordance with instructions. Jurisdiction retained.