Com. v. Audiles, V. ( 2018 )

J-S42034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
VONSINTARREYUN DESHARVIE :
AUDILES, :
:
Appellant : No. 368 MDA 2018
Appeal from the Judgment of Sentence January 25, 2018
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-SA-0000072-2017
BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 02, 2018
Appellant Vonsintarreyun Desharvie Audiles (Appellant) appeals from
her January 25, 2018 judgment of sentence after she was found guilty of
driving while operating privilege is suspended or revoked pursuant to 75
Pa.C.S. § 1543(a). Counsel has filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm
Appellant’s judgment of sentence and grant counsel’s petition to withdraw.
We provide the following background.
On May 22, 2017, Officer Matthew Lynch of the Chambersburg
Police Department filed a traffic citation against [Appellant],
charging her with driving while operating privileges are suspended
or revoked, pursuant to 75 Pa.C.S.[] § 1543(a). On July 13, 2017,
a summary trial took place before the magisterial district judge.
At the conclusion of the hearing, the magisterial district judge
found [Appellant] guilty, and imposed a sentence of not less than
90 days to not more than 180 days in the county jail,1 a fine [of]
$1,000, and other fees and costs.
* Retired Senior Judge assigned to the Superior Court.
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__________
1 This conviction is [Appellant’s] fourth violation of 75
Pa.C.S. § 1543(a). As such, the penalties are set
forth in 75 Pa.C.S. § 6503; this provision provides
maximum penalties of $1,000 fine and [six] months’
imprisonment for a second or subsequent violation of
[subsection] 1543(a).
On July 17, 2017, [Appellant] filed a notice of appeal from
summary criminal conviction with [the trial court]. After several
continuances, a summary appeal trial was held on January 25,
2018; [Appellant] was represented by counsel. At the conclusion
of the evidence, [the trial court] found [Appellant] guilty, fined
her $1,000, and sentenced her to a period of incarceration of not
less than 45 days to not more than 90 days in Franklin County
Jail, followed by 90 days of electronic monitoring, with costs paid
by [Appellant].
Trial Court Opinion (TCO), 4/3/2018, at 1-2 (unnecessary capitalization
omitted).
Appellant timely filed a notice of appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
In this Court, counsel has filed both an Anders brief and a petition to
withdraw as counsel. Accordingly, the following principles guide our review.
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.
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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 Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Further, our Supreme Court has specified the following
requirements for the Anders brief:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. Super. 2009).
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.1 Thus, we now have the responsibility
“‘to make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.’”
____________________________________________
1 Appellant has not filed a response to counsel’s petition to withdraw.
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Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)
(quoting Santiago, 978 A.2d at 354 n.5).
In her Anders brief, counsel presents the following as issues which
arguably support an appeal:
1. Did the trial court err in finding Appellant guilty when the
Commonwealth failed to prove every element of the charge[]
beyond a reasonable doubt and therefore, was insufficient to
support Appellant’s conviction?
2. Did the trial court err in finding Appellant guilty following
Appellant’s summary appeal trial when the verdict was against
the weight of the evidence presented?
Anders Brief at 7 (suggested answers omitted).
Initially, we consider whether Appellant’s sufficiency-of-the-evidence
claim is waived. To preserve such a claim, the trial court may direct an
appellant to submit a Rule 1925(b) concise statement of matters complained
of on appeal. Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008). The Rule 1925(b) statement “needs to specify the element or elements
upon which the evidence was insufficient.” Id. If the appellant fails to
articulate the elements of her crime for which the evidence is allegedly
insufficient, then that issue is waived. See id. Instantly, Appellant's Rule
1925(b) statement does not specify the allegedly unproven elements upon
which the evidence was insufficient. Thus, we find Appellant has waived this
claim.
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Even if Appellant’s sufficiency-of-the-evidence claim were not waived,
we agree with counsel that this issue is frivolous. In reviewing a sufficiency-
of-the-evidence claim, the following principles apply.
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
find that each element of the crimes charged is established beyond
a reasonable doubt. The Commonwealth may sustain its burden
of proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt raised
as to the accused’s guilt is to be resolved by the fact-finder. As
an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record. Therefore, we will not
disturb the verdict unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact may be drawn from
the combined circumstances.
Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)
(quoting Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)
(citations and quotations omitted)).
To sustain a conviction for driving while operating privilege is suspended
or revoked, the Commonwealth must prove that Appellant was driving a motor
vehicle on a highway or trafficway while her operating privilege (i.e., driver’s
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license) was suspended, revoked, or cancelled. 75 Pa.C.S. § 1543(a).2
The trial court offered the following in support of its determination that
Appellant was driving while her operating privilege was suspended.
During the trial in this matter, the Commonwealth presented the
testimony of Officer Lynch. He testified as follows:
[O]n May 22, 2017[,] I was on duty as a uniformed
patrol officer working within the Chambersburg
Borough which is located in Franklin County.
On that date[,] I was driving a marked patrol car and
I was in uniform, and I was in the area of South
Franklin Street near Loudon Street, and this was at
approximately 12:36 in the afternoon.
On that time and date[,] I observed a gold Chevrolet
Impala [vehicle] turn from Loudon Street on to South
Franklin Street headed north bound in the opposite
direction where I was stopped in traffic.
When that vehicle passed me I recognized the driver
as [Appellant,] who is seated over here in the gray
shirt with purple hair.
***
She was operating that vehicle on that date.
____________________________________________
2 This subsection provides:
(a) Offense defined.--Except as provided in subsection (b), any
person who drives a motor vehicle on any highway or trafficway
of this Commonwealth after the commencement of a suspension,
revocation or cancellation of the operating privilege and before the
operating privilege has been restored is guilty of a summary
offense and shall, upon conviction, be sentenced to pay a fine of
$200.
75 Pa.C.S. § 1543(a). Subsection 1543(b) referenced therein is not relevant
to the instant case.
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***
Whenever I got turned around in traffic[, Appellant]
accelerated through the turn on to West Queen Street
and hastily pulled over with the back end of her
vehicle sticking out in traffic.
I was able to pull up behind her with my lights and
initiate a traffic stop on her, and she still remained
within the driver’s seat of that vehicle.
[N.T., 1/25/2018, at 7-9]
TCO, 4/3/2018, at 4-5 (footnote and emphasis omitted).
Here, Appellant argues that the evidence was insufficient to prove that
Appellant was driving the vehicle.3 Anders Brief at 11. Specifically, she
claims that when Officer Lynch “initiated a traffic stop of Appellant’s vehicle,
the vehicle was not being driven[,] the vehicle was stationary” and “Officer
Lynch did not testify that he made any attempt to ascertain whether the
vehicle had recently been driv[en], such as feeling the hood of the car to see
if the engine was hot.” Id. at 10. Appellant relies on her testimony that she
was not driving the vehicle, but rather was simply seated in the driver’s seat
when Officer Lynch approached. Id. at 10-11.
____________________________________________
3 Our review of the certified record confirms Appellant’s operating privilege
was suspended or revoked at the time of the incident. See N.T., 1/25/2018,
at Commonwealth Exh. 3 (Appellant’s certified driver history). There does not
appear to be any dispute regarding same, and Appellant does not challenge
this on appeal.
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Viewing the facts in the light most favorable to the Commonwealth, the
evidence is sufficient to support the trial court’s determination that Appellant
was driving the vehicle. As the trial court explained,
[t]he Commonwealth must prove that a vehicle was in fact driven.
See, e.g., Commonwealth v. Costa-Hernandaz, 802 A.2d 671,
763-74[] (Pa. Super. 2002).
***
[T]he testimony of Officer Lynch was sufficient for [the trial court]
to find that [Appellant] was driving the vehicle. Officer Lynch’s
testimony, standing alone, clearly sufficed as both direct evidence
(his observation of her driving) and circumstantial evidence that
[Appellant] had driven the vehicle in violation of [subs]ection
1543[a] of the vehicle code (he observed the car in motion on the
road, saw it pull over with its back end sticking out in the road,
and found [Appellant] in the driver’s seat immediately thereafter).
TCO, 4/3/2018, at 4-5. We agree with the trial court’s determination that
Officer Lynch’s testimony was sufficient for a fact-finder to believe that
Appellant was driving the vehicle. Accordingly, we agree with counsel that
this issue is frivolous.
We now turn to Appellant’s weight-of-the-evidence issue. Anders Brief
at 11. A challenge to the weight of the evidence is waived unless it is first
presented to the trial court. Commonwealth v. Sherwood, 982 A.2d 483,
494 (Pa. 2009). Specifically, such a claim is subject to preservation pursuant
to Pennsylvania Rule of Criminal Procedure 607(A), which provides:
(A) A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before
sentencing;
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(2) by written motion at any time before sentencing;
or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A); see also Commonwealth v. Griffin, 65 A.3d 932, 938
(Pa. Super. 2013). Although a defendant appealing a summary offense in the
court of common pleas is not permitted to file a post-sentence motion, see
Pa.R.Crim.P. 720(D),4 such a defendant is obligated nonetheless to preserve
a weight-of-the-evidence claim by motion prior to sentencing. Pa.R.Crim.P.
607(A)(1), (2).
Because Appellant did not raise her weight-of-the-evidence claim before
the trial court, she has waived it.5, 6 See Sherwood, 982 A.2d at 494. An
issue that is waived is frivolous. Commonwealth v. Tukhi, 149 A.3d 881,
____________________________________________
4 Rule 720(D) provides, “There shall be no post-sentence motion in summary
case appeals following a trial de novo in the court of common pleas. The
imposition of sentence immediately following a determination of guilt at the
conclusion of the trial de novo shall constitute a final order for purposes of
appeal.” Pa.R.Crim.P. 720(D).
5 Appellant did present this issue in her Pa.R.A.P. 1925(b) statement, and the
trial court addressed it in its opinion. See Concise Statement, 3/12/2018, at
2 (unnumbered); TCO, 4/3/2018, at 5. However, the “[f]ailure to properly
preserve [a weight-of-the-evidence] claim results in waiver, even if the trial
court addresses the issue in its [Rule 1925(a)] opinion.” Griffin, 65 A.3d at
938 (citing Sherwood, 982 A.2d at 494).
6Even if Appellant’s claim were not waived, she would not be entitled to relief.
The trial court concluded that its verdict did not shock one’s sense of justice.
TCO, 4/3/2018, at 5. Despite Appellant’s argument to the contrary, the
Commonwealth established that Appellant was driving the vehicle. Thus, we
discern no abuse of discretion in the trial court’s conclusion.
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888–89 (Pa. Super. 2016); Commonwealth v. Kalichak, 943 A.2d 285, 291
(Pa. Super. 2008) (holding that when an issue has been waived, “pursuing
th[e] matter on direct appeal is frivolous”). Accordingly, on this basis, we
agree with counsel that this claim is frivolous.
Moreover, we have conducted “a full examination of the proceedings”
and conclude that “the appeal is in fact wholly frivolous.” Flowers, 113 A.3d
at 1248. Accordingly, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/02/2018
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