Com. v. Cheeseman, M. ( 2018 )


Menu:
  • J-S07013-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    MARC ANTHONY CHEESEMAN,
    Appellant                  No. 2108 EDA 2017
    Appeal from the Judgment of Sentence Entered June 9, 2017
    In the Court of Common Pleas of Bucks County
    Criminal Division at No(s): CP-09-SA-0000658-2016
    BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 01, 2018
    Appellant, Marc Anthony Cheeseman, appeals from the judgment of
    sentence of 60 days’ imprisonment and a $500 fine, imposed after a
    magisterial district judge found him guilty of driving with a suspended license,
    and the trial court denied Appellant’s subsequent summary appeal. Appellant
    solely challenges the sufficiency of the evidence to sustain his conviction.
    Additionally, his counsel, Lisa Y. Williams, Esq., seeks to withdraw her
    representation of Appellant pursuant to Anders v. California, 
    386 U.S. 738
    (1967), and Commonwealth v. Santiago, 
    978 A.2d 349
    (Pa. 2009). After
    careful review, we affirm Appellant’s judgment of sentence and grant counsel’s
    petition to withdraw.
    The trial court briefly summarizes the procedural history of Appellant’s
    case as follows:
    J-S07013-18
    On August 17, 2015, Appellant was charged by the Bucks
    County District Attorney’s Office and the Warrington Township
    Police Department with [d]riving … while his license was …
    suspended [based on Appellant’s prior conviction of driving under
    the influence of alcohol (DUI).]1[] On August 22, 2016, Appellant
    faced a summary trial on the citation before Magisterial Distrit
    Judge Jean Seaman. Judge Seaman found [] Appellant guilty and
    on that same date[,] Appellant was sentenced to 60 days[’]
    imprisonment and ordered to pay the $500 … statutory fine plus
    costs.
    1 75 Pa.C.S. § 1543(b)(1) [(Driving while operating privilege
    is suspended or revoked).]
    Appellant filed a Summary Appeal of his sentence on
    September 22, 2016. A trial in the Bucks County Court of
    Common Pleas … was scheduled and heard on June 9, 2017. []
    Appellant failed to appear and the trial was heard in his absence
    by the undersigned. … At the conclusion of the hearing[,] []
    Appellant was found guilty and sentenced to serve 60 days in the
    Bucks County Correctional Facility. The District Attorney’s Office
    sent a letter to [] Appellant advising him that he was found guilty
    at the hearing in his absence and directed him to appear at the
    correctional facility to begin serving his sentence on July 1, 2017.
    Trial Court Opinion (TCO), 8/17/17, at 1-2.
    Appellant filed a timely notice of appeal on June 29, 2017. The trial
    court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
    complained of on appeal and he timely complied, raising the following issue:
    “Whether the evidence provided by the Commonwealth was sufficient to
    establish that [] Appellant was guilty of driving on August 17, 20[1]5, while
    his license was suspended due to a previous [DUI] conviction?”        Pa.R.A.P.
    1925(b) Statement, 7/24/17, at 1 (unnumbered). On August 17, 2017, the
    trial court issued a Rule 1925(a) opinion, concluding that Appellant’s
    sufficiency challenge was waived because he had not ordered the transcript of
    -2-
    J-S07013-18
    the trial de novo for the court to utilize in assessing his claim. See TCO at 2-
    5.
    Thereafter, Appellant requested the trial transcript, and it was filed with
    this Court as a supplemental record.          Thus, our review of Appellant’s
    sufficiency claim is unhampered, and we will not find waiver based on his
    earlier failure to supply the trial court with the transcript.
    On November 30, 2015, Attorney Williams filed with this Court a petition
    to withdraw from representing Appellant. She has also filed an Anders brief,
    asserting that Appellant’s sufficiency-of-the-evidence issue is frivolous, and
    that he has no other non-frivolous issues he could assert on appeal.
    This Court must first pass upon counsel’s petition to withdraw
    before reviewing the merits of the underlying issues presented by
    [the appellant]. Commonwealth v. Goodwin, 
    928 A.2d 287
    ,
    290 (Pa. Super. 2007) (en banc).
    Prior to withdrawing as counsel on a direct appeal under Anders,
    counsel must file a brief that meets the requirements established
    by our Supreme Court in Santiago. The 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 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
    . Counsel also must provide a copy of
    the Anders brief to his client. Attending the brief must be a letter
    that advises the client of his right to: “(1) retain new counsel to
    -3-
    J-S07013-18
    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), appeal denied, 
    594 Pa. 704
    , 
    936 A.2d 40
    (2007).
    Commonwealth v. Orellana, 
    86 A.3d 877
    , 879-80 (Pa. Super. 2014). After
    determining that counsel has satisfied these technical requirements of Anders
    and Santiago, this Court must then “conduct an independent review of the
    record to discern if there are any additional, non-frivolous issues overlooked
    by counsel.” Commonwealth v. Flowers, 
    113 A.3d 1246
    , 1250 (Pa. Super.
    2015) (citations and footnote omitted).
    In this case, Attorney Williams’ Anders brief complies with the above-
    stated requirements. Namely, she includes a summary of the relevant factual
    and procedural history, she refers to portions of the record that could arguably
    support Appellant’s sufficiency claim, and she sets forth her conclusion that
    Appellant’s appeal is frivolous. She also explains her reasons for reaching that
    determination, and supports her rationale with citations to the record and
    pertinent legal authority. Attorney Williams states in her petition to withdraw
    that she has supplied Appellant with a copy of her Anders brief, and she
    attached to her petition a letter directed to Appellant in which she informs him
    of the rights enumerated in Nischan. Accordingly, counsel has complied with
    the technical requirements for withdrawal. We will now independently review
    the record to determine if Appellant’s issue is frivolous, and to ascertain if
    there are any other, non-frivolous issues he could pursue on appeal.
    -4-
    J-S07013-18
    We begin by noting our standard of review of the claim presented by
    Appellant:
    In reviewing a sufficiency of the evidence claim, we must
    determine whether the evidence admitted at trial, as well as all
    reasonable inferences drawn therefrom, when viewed in the light
    most favorable to the verdict winner, are sufficient to support all
    elements of the offense. Commonwealth v. Moreno, 
    14 A.3d 133
    (Pa. Super. 2011). Additionally, we may not reweigh the
    evidence or substitute our own judgment for that of the fact
    finder. Commonwealth v. Hartzell, 
    988 A.2d 141
    (Pa. Super.
    2009). The evidence may be entirely circumstantial as long as it
    links the accused to the crime beyond a reasonable doubt.
    Moreno, supra at 136.
    Commonwealth v. Koch, 
    39 A.3d 996
    , 1001 (Pa. Super. 2011).
    In this case, Appellant was convicted of driving while his operating
    privilege was suspended or revoked, as defined by 75 Pa.C.S. § 1543(b)(1):
    (b) Certain offenses.--
    (1) A person who drives a motor vehicle on a highway or
    trafficway of this Commonwealth at a time when the
    person’s operating privilege is suspended or revoked as a
    condition of acceptance of Accelerated Rehabilitative
    Disposition for a violation of section 3802 (relating to driving
    under influence of alcohol or controlled substance) or the
    former section 3731, because of a violation of section
    1547(b)(1) (relating to suspension for refusal) or 3802 or
    former section 3731 or is suspended under section 1581
    (relating to Driver's License Compact) for an offense
    substantially similar to a violation of section 3802 or former
    section 3731 shall, upon conviction, be guilty of a summary
    offense and shall be sentenced to pay a fine of $500 and to
    undergo imprisonment for a period of not less than 60 days
    nor more than 90 days.
    At Appellant’s trial de novo, the Commonwealth presented the testimony
    of Warrington Township Police Officer Kevin Stebner. Officer Stebner stated
    -5-
    J-S07013-18
    that on August 17, 2015, at approximately 2 o’clock in the afternoon, he was
    in the area of Easton Road and Bristol Road in Warrington Township, Bucks
    County. N.T. Trial, 6/9/17, at 3, 4. The officer described what occurred at
    that location, as follows:
    [Officer Stebner]: I was observing the traffic signal at Bristol Road
    and Easton Road. A Chevy Equinox, gray in color, bearing
    Pennsylvania registration [HMW] 1401 was traveling north on
    Easton Road approaching Bristol Road. That vehicle entered the
    shoulder against two signs that say “keep off shoulder,” passing
    other traffic that was stopped for a red traffic light. This vehicle
    then made a right turn from the shoulder onto eastbound Bristol
    Road.
    I activated my emergency lights and sirens and initiated a
    traffic stop of that vehicle, finding [Appellant] to be the operator.
    Through investigation[,] it was found that [Appellant’s] driver’s
    license was expired and he was also DUI suspended. He was cited
    for those violations.
    
    Id. at 4.
    After this testimony, the Commonwealth rested its case. Because
    Appellant was absent from the trial de novo, no evidence was presented in his
    defense.
    Officer Stebner’s testimony was sufficient to prove that Appellant
    committed the offense defined by section 1543(b)(1). Officer Stebner testified
    that Appellant was driving a vehicle, and that he did not have a valid license
    to do so because it had been suspended based on Appellant’s prior DUI
    offense. While the Commonwealth did not present documentary evidence to
    confirm that at the time of the stop, Appellant’s license was suspended based
    on his DUI conviction, nothing in the language of section 1543(b)(1) suggests
    -6-
    J-S07013-18
    that such proof is required.1        Accordingly, under the general principle that
    circumstantial evidence may alone be enough to support a conviction, see
    
    Koch, supra
    , we conclude that Officer Stebner’s testimony was sufficient to
    prove that Appellant committed the offense defined in section 1543(b)(1).
    Therefore, we agree with Attorney Williams’ that the sufficiency
    challenge Appellant seeks to raise herein is frivolous.          Additionally, our
    independent review of the record reveals no other, non-frivolous issues that
    Appellant could pursue on appeal. Thus, we affirm his judgment of sentence
    and grant counsel’s petition to withdraw.
    Petition to withdraw granted. Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/1/18
    ____________________________________________
    1We acknowledge that Attorney Williams’ attaches to her Anders brief a copy
    of Appellant’s Certified Driver History issued by the Pennsylvania Department
    of Transportation, which sets forth the periods of time between 1992 and 2015
    during which Appellant’s license was suspended. However, that document
    was not introduced at Appellant’s trial de novo; thus, we cannot consider it in
    assessing the sufficiency of the evidence to sustain Appellant’s conviction.
    -7-
    

Document Info

Docket Number: 2108 EDA 2017

Filed Date: 5/1/2018

Precedential Status: Precedential

Modified Date: 5/1/2018