Com. v. Leh, L. ( 2016 )

J-S43004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LYNDSEY ELLEN LEH
Appellant No. 2088 MDA 2015
Appeal from the Judgment of Sentence October 16, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002816-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 06, 2016
Appellant, Lyndsey Ellen Leh, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following her
convictions of accidents involving damage to attended vehicle or property,
driving while operating privilege is suspended or revoked, and duty to give
information and render aid.1 We affirm and grant counsel’s petition to
withdraw.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
As a preliminary matter, counsel seeks to withdraw her representation
____________________________________________
1
75 Pa.C.S.A. §§ 3743(a), 1543(a), and 3744(a), respectively.
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pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
____________________________________________
2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated March 7,
2016, attached to Petition for Leave to Withdraw as Counsel). In the
Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel’s argument refers to relevant law that might
arguably support Appellant’s issues. Counsel further states the reasons for
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her conclusion that the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issues on Appellant’s behalf:
WHETHER THE EVIDENCE ADDUCED AT TRIAL WAS
INSUFFICIENT TO SUPPORT THE CONVICTIONS FOR
ACCIDENTS INVOLVING DAMAGE TO ATTENDED VEHICLE
OR PROPERTY, DRIVING WHILE OPERATING PRIVILEGE IS
SUSPENDED OR REVOKED, AND DUTY TO GIVE
INFORMATION AND RENDER AID, IN THAT
COMMONWEALTH FAILED TO ESTABLISH BEYOND A
REASONABLE DOUBT EVERY MATERIAL ELEMENT[] OF
THESE CRIMES?
WHETHER THE VERDICTS OF GUILTY OF ACCIDENTS
INVOLVING DAMAGE TO ATTENDED VEHICLE OR
PROPERTY, DRIVING WHILE OPERATING PRIVILEGE IS
SUSPENDED OR REVOKED, AND DUTY TO GIVE
INFORMATION AND RENDER AID ARE CONTRARY TO THE
WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL?
(Anders Brief at 7).
Section 3743 of the Pennsylvania Motor Vehicle Code defines accidents
involving damage to attended vehicle or property as follows:
§ 3743. Accidents involving damage to attended
vehicle or property
(a) General rule.—The driver of any vehicle involved in
an accident resulting only in damage to a vehicle or other
property which is driven or attended by any person shall
immediately stop the vehicle at the scene of the accident or
as close thereto as possible but shall forthwith return to
and in every event shall remain at the scene of the accident
until he has fulfilled the requirements of section 3744
(relating to duty to give information and render aid). Every
stop shall be made without obstructing traffic more than is
necessary.
75 Pa.C.S.A. § 3743(a).
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Section 1543 of the Pennsylvania Motor Vehicle Code defines driving
while operating privilege is suspended or revoked as follows:
§ 1543. Driving while operating privilege is
suspended or revoked
(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.A. § 1543(a). “Proof of actual notice of the suspension of an
appellant’s operator’s license is necessary to establish an essential element
of the crime of operating a motor vehicle while one’s operator’s license is
suspended.” Commonwealth v. Baer, 682 A.2d 802, 805 (Pa.Super.
1996).
Section 3744 of the Pennsylvania Motor Vehicle Code defines duty to
give information and render aid as follows:
§ 3744. Duty to give information and render aid
(a) General rule.—The driver of any vehicle involved
in an accident resulting in injury to or death of any
person or damage to any vehicle or other property which
is driven or attended by any person shall give his name,
address and the registration number of the vehicle he is
driving, and shall upon request exhibit his driver's
license and information relating to financial responsibility
to any person injured in the accident or to the driver or
occupant of or person attending any vehicle or other
property damaged in the accident and shall give the
information and upon request exhibit the license and
information relating to financial responsibility to any
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police officer at the scene of the accident or who is
investigating the accident and shall render to any person
injured in the accident reasonable assistance, including
the making of arrangements for the carrying of the
injured person to a physician, surgeon or hospital for
medical or surgical treatment if it is apparent that
treatment is necessary or if requested by the injured
person.
75 Pa.C.S.A. § 3744(a). This Court applies “the doctrine of ‘substantial
compliance’ when determining whether drivers have fulfilled the
requirements of [Section 3744(a)].” Commonwealth v. Long, 831 A.2d
737, 741 (Pa.Super. 2003), appeal denied, 576 Pa. 721, 841 A.2d 530
(2003).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Paul M.
Yatron, we conclude Appellant’s issues on appeal merit no relief. The trial
court opinion comprehensively discusses and properly disposes of the
questions presented. (See Trial Court Opinion, filed January 12, 2016, at 3-
5) (finding: (1) Commonwealth introduced evidence that Ms. Trumbore lent
her Oldsmobile to her daughter, Ms. Lehrman, with understanding that
Appellant would drive Ms. Lehrman around to run errands; Mr. Wassel,
driver of other vehicle involved in accident, stated he observed two females
in Oldsmobile immediately before accident; Ms. Lehrman testified that she
was passenger and Appellant was driver of vehicle at time of accident; Ms.
Lehrman also stated that Appellant fled scene of accident due to outstanding
warrants; Ms. Lehrman further testified that she called Appellant in Officer
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Cedeno’s presence and asked Appellant to return to scene of accident, but
Appellant refused due to her outstanding warrants; based on this evidence,
sufficient evidence existed to conclude Appellant was driver of Oldsmobile
when accident occurred; thus, Appellant’s convictions are supported by
sufficient evidence; (2) Commonwealth introduced substantial evidence of
Appellant’s guilt; with exception of Appellant’s testimony, other testimonial
evidence introduced at Appellant’s trial was almost entirely consistent; court
determined that Appellant’s testimony was incredible; court indicated that
Appellant’s denial of her presence in Oldsmobile at time of accident,
scheduled dentist appointment on day of accident, and previous attendance
at Alcoholics Anonymous meetings demonstrated Appellant’s lack of
credibility; court also rejected Appellant’s testimony that she did not know
what Ms. Lehrman was talking about when Appellant received call from Ms.
Lehrman around time of accident; court further noted accident occurred one
block from Appellant’s workplace, when one of Appellant’s errands that day
was to retrieve her paycheck; court properly determined Appellant’s
convictions were supported by weight of evidence). Following our
independent review of the record, we conclude the appeal is frivolous. See
Palm, supra. Accordingly, we affirm on the basis of the trial court opinion
and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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Circulated 06/06/2016 02:26 PM
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COMMONWEALTH OF- IN THE COURTOF eOMMON PLEAS OF
PENNSYL VANIA BERKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
v.
No. CP-06-CR-0002816-2015
LYNDSEY LEH,
APPELLANT PAUL M. YATRON, PRESIDENT JUDGE
Adam McNaughton, Esq., Attorney for the Commonwealth
Rachel L. Keung, Esq., Attorney for the Appellant on Appeal
Kathryn L. Hinner, Esq., Attorney for the Appellant at Trial
1925(a) Opinion January 12,'2016
Following a non-jury trial held October 16, 2015, Lyndsey Ellen Leh ("Appellant") was
convicted of accidents involving damage to attended vehicle or property', driving while
operating privilege is suspended or revoked', and duty to give information and render aid3•
Appellant was sentenced the same day to a probationary term of twelve (12) months. Appellant
filed a post-sentence motion on Ovro 'o(J( Z.3l015, which we denied dVv rlJ?J~ v11.016:
Appellant filed a notice of appeal on November 25, 2015, and we directed counsel to file
a concise statement of errors pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure. The concise statement was timely filed on December 16, 2015. Appellant raises the
following matters for appellate review:
1. The trial court erred in finding Defendant guilty of Accidents Involving Damage to
Attended Vehicle or Property, 75 Pa.C.S.A. Sec. 3743(a); Driving While Operating
Privileges Suspended or Revoked, 75 Pa.C.S.A. Sec. 1543(a); and Duty to Give
Information and Render Aid, 75 Pa.C.S.A. Sec. 3744(a), where the evidence presented at
trial was insufficient to prove beyond a reasonable doubt that Defendant was the driver of
the vehicle.
2. Toe verdict of guilty against Defendant for Accidents Involving Damage to Attended
Vehicle or Property, 75 .Pa.CS.A. Sec. 3743(a); Driving While Operating Privileges
• '., 1 ·, ·1
1
75 Pa.C.S.A. § 3743(a).
2
75 Pa.C.S.A. § 1543(a).
3
75 Pa.C.S.A. § 3744(a).
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Suspended or Revoked, 75-Pa:C.S.A. Sec. 1543(a); and DutytoGivelnformationand
Render Aid, 75 Pa.C.S.A. Sec. 3744(a), is contrary to the weight of the evidence
presented at trial, where testimony provided at trial was not credible to show that
Defendant was the driver of the vehicle:
a. Where the testimony provided by Robin Lehrman was incredible, inconsistent,
unclear, influenced by ulterior motives, and contradicted by the testimony of
Dorothy Trumbore, Vincent Gonzalez, and Lyndsey Leh.
b. Where the testimony provided by Dorothy Trumbore was incredible, inconsistent,
unclear, influenced by ulterior motives, and contradicted by the testimony of
Robin Lehrman and Lyndsey Leh.
CONCISE STATEMENT, December 16, 2015.
Factual Summary
On January 14, 2015 at approximately 6:00 p.m., Daniel Wassel left the Fire/Ambulance
Station at Reed and Walnut Street in his 2005 four-door Ford Taurus sedan. NOTES OF
TESTIMONY ("N.T."), Oct. 16, 2015 at 5. Wassel was driving north on Center Avenue when a
2000 Oldsmobile Alero ran the stop sign at the intersection of Center and Douglass Streets,
striking the passenger side of his vehicle.Id. at 5, 15. Just before impact, Wassel saw that there
were two female occupants in the car. Id. at 7. The driver appeared taller than the passenger and
had a lighter hair color than the passenger. Id.
Wassel's car spun 180 degrees from the impact, but he turned and saw the other vehicle
attempting to leave the area. Id. at 7-8. Wassel executed a U-tum and pursued the other vehicle,
which had gotten about 100 yards away. Id. at 8. Wassel had lost sight of the other vehicle for
only five or six seconds. Id. at 12. As Wassel began pursuing the car, it turned right onto North
Third Street and pulled over near other parked cars. Id. at 8. When Wassel arrived, a woman was
outside the car looking at the driver-side front of the vehicle. Id. A man walking his dog nearby
was pointing at the car and said, "She running, she running." Id at 9.
Wassel grabbed the woman, named Robin Lehrman, by the sweatshirt because he thought
she was trying to flee the scene. Id. at 10, 23. After retrieving insurance paperwork and cigarettes
from the car, Lehrman sat on the curb to smoke a cigarette until the police arrived. Id. Officer
Daniel Cedeno of the Reading Police Department arrived shortly thereafter. Id. at 33.
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·--· ····it"····
(',/ - - - Lehrman reported what hadhappened.Lehrman's mother, Dorothy'Trumborerownedthe -
Oldsmobile and had lent the vehicle to Appellant and Lehrman. Id. at 15. Trumbore gave the
keys to Lehrman with the understanding that Appellant would drive; this was due to the fact that
Lehrman's license was suspended. Id. at 16, 18-19. Lehrman was familiar with Appellant
because she had seen her at Alcoholics Anonymous ("AA") meetings in the past. Id. at 16, 24.
There were three purposes for the trip: Appellant had a dental appointment, Appellant needed to
pick up her paycheck, and they were both going to attend an AA meeting. Id. at 20. Appellant's
workplace, Sofrito Gastro Pub, is located approximately one block from the site of the accident.
Id. at 51.
Lehrman testified that after the accident, Appellant drove the car a short distance down
the block. Id at 22. Appellant then stated that she had warrants out, and she fled on foot. Id.
While speaking with Officer Cedeno, Lehrman called Appellant and told her that she needed to
return to the scene to speak with the police. Id at 11, 23, 34. Officer Cedeno could not hear
Appellant's responses, but he did hear that it was a female voice. Id. at 34. Appellant did not
return to the scene.
Discussion
Appellant argues that "the evidence presented at trial was insufficient to prove beyond a
reasonable doubt that Defendant was the driver of the vehicle." CONCISE STATEMENT at ,r1.
Appellant also argues that her convictions are contrary to the weight of the evidence because the
testimony of Robin Lehrman and Dorothy Trumbore "was incredible, inconsistent, unclear,
influenced by ulterior motives, and contradicted by the testimony of [other witnesses]." Id. at ,r2.
I. Appellant's verdicts were supported by sufficient evidence.
The standard of review for a sufficiency of the evidence claim is well-settled:
The standard we apply in reviewing the sufficiency of the evidence is whether
viewing all the evidence admitted at trial in the light most favorable to the verdict
winner, there is sufficient evidence to enable the fact-finder to find every element
of the crime beyond a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving
3
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•;· every element or-the crimebeyond a reasonable doubt" by--means··ofwholly··
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circumstantial evidence. Moreover, in applying the above test, the entire record
must be evaluated and all the evidence actually received must be considered.
Finally, the trier of fact while passing upon the credibility of witnesses and the
(l)
,., weight of the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Distefano, 782 A.2d 574, 582 (Pa. Super. 2001) (quoting Commonwealth v.
Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)) (citations omitted). "If the factfinder reasonably
could have determined from the evidence adduced that all of the necessary elements of the crime
were established, then that evidence will be deemed sufficient to support the verdict."
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) ( citing Commonwealth v.
Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000)).
The Commonwealth introduced evidence that Dorthy Trumbore lent her Oldsmobile
sedan to her daughter, Robin Lehrman, with the understanding that Appellant would be driving
them around to some errands. Lehrman testified that Appellant was driving the car when it
collided with Daniel Wassel's Ford Taurus. Immediately prior to the accident, Wassel observed
two females in the Oldsmobile. Lehrman testified that Appellant ran because she had outstanding
warrants. In the presence of Wassel and Officer Daniel Cedeno, Lehrman called Appellant and
argued that she should return to the scene of the accident.
From this testimony, there was sufficient evidence for this Court as fact-finder to
conclude that Appellant has been driving the Oldsmobile and was therefore guilty of the three
offenses.
II. Appellant's verdicts are not contrary to the weight of the evidence presented at trial.
The weight of trial evidence is a choice for the fact-finder. Commonwealth v. West, 937
A.2d 516, 521 (Pa. Super. 2007). Where the fact-finder renders a guilty verdict and the defendant
files a motion for a new trial on the basis that the verdict was against the weight of the evidence,
"a trial court is not to grant relief unless the verdict is so contrary to the evidence as to shock
one's sense of justice." Commonwealth v. Stays, 70 A.3d 1256, 1267 (Pa. Super. 2013) (citing
West, 937 A.2d at 52i).
When an Appellant challenges a trial court's denial of a post-sentence motion for new
trial based on weight of the evidence, the standard of review is limited to whether the trial court
abused its discretion:
4
· · · we ·a.o noCfeacl:r lne underlyingquestion of whether theverdictwas, .irrfact; ·
against the weight of the evidence. We do not decide how we 'would have ruled on
the motion and then simply replace our own judgment for that of the trial court.
Instead, this Court determines whether the trial. court abused its discretion in
reaching whatever decision it made on the motion, whether or not that decision is
the one we might have made in the first instance.
West, 937 A.2d at 521 (Pa. Super. 2007). An abuse of discretion "is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest unreasonableness or a
misapplication of the law." Id. ( citations omitted). A proper exercise of discretion, by contrast,
"conforms to the law and is based on the facts ofrecord." Id.
Our order denying Appellant's post-sentence motions conforms to the law and is based
on the facts of record, as discussed supra. We reiterate that the Commonwealth introduced
substantial evidence of Appellant's guilt. We further note that the testimony of each witness-
with the notable exception of Appellant herself-was almost entirely consistent.
We stated prior to Appellant's sentencing that we found her testimony not to be credible,
and we reiterate that finding now. N.T. 54. Appellant denied even being in the car at the time of
the accident. Id. at 42. She also denied having a dentist appointment that day and denied that she
had ever been to an Alcoholics Anonymous meeting, but acknowledged that she had been
waiting for Lehrman to pick her up. Id. at 44. Appellant also acknowledged receiving the phone
call from Lehrman at the scene of the accident, but she claimed that she did not know what
Lehrman was talking about. Id. In addition to our findings of fact, discussed supra, we note that
Lehrman somehow would have known that Appellant had an active warrant. We also note the
purported coincidence that the accident occurred one block from Appellant's workplace; one of
the intended errands that afternoon was to retrieve Appellant's paycheck.
For all these reasons, we contend that Appellant's convictions were not against the
weight of the evidence and that our denial of Appellant's post-sentence motion did not constitute
an abuse of discretion.
Conclusion
For all of the foregoing reasons, this Court respectfully requests that the instant appeal be
. .
DENIED and the judgment of sentence AFFIRMED.·
5
'"10UNTY OF BERKS_, PENNr· ·¥LVANIA
Clerk of Courts
Phone: 610.478.6550
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PROOF OF SERVICE Docket No. 2f?/ 6 r-r:)
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S 1, jes\Js certify that I served the within documents upon the following:
(zict Attorne'{2_ /~ ( ) Solicitor ( ) Prison Society ( ) CVS
( Public Defender (( H fl>') ( ) Court Reporter ( ) Controller ( )CtAdmin
( ) Adult Probation ' 1(\Jlff { ) Prothonotary { ) commissioner ( ) GAL
( ) Bureau of Traffic Safety { ) Sheriff ( ) Bar Association
{ ) Reading Central Court ( ) MHMR ( ) Reading Eagle
{ · ) Law Library ( ) Dr. Rotenberg ( ) Beth
(z.ecords fu ( )TASC ~puter
( Judge
( ) District Justice
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( ) Police Department
On the day of 20 --
) Defendant and/or Claimant by mailed a certified copy thereof to the following address:
On the day of _, 20
( ) Defendant's attorney by mailing a certified copy thereof to:
Onthe~dayof jc,. A), JQ(':f
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Statements in this proof of service are made subject to the penalties for unsworn falsificationto
authorities under the Crimes Code 4904 18 PACS 490 .
Dedicated to public service with integrity, virtue & exce/fence
www.countyofberks.com
,(·~,, ·.· · · c· brvwo··NWEALTHUF : INTHECOtTRTOFCOMMONPLEAS 0F· ·
.; PENNSYLVANIA BER.KS COUNTY, PENNSYLVANIA
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CRIMINAL DIVISION
v.
No. CP-06-CR-0002816-2015
LYNDSEY LEH,
APPELLANT PAUL M. YATRON, PRESIDENT JUDGE
NAMES AND ADDRESSES OF THOSE TO BE SERVED
O Clerk of Courts
D C/S
O Counsel for the Commonwealth
Berks County District Attorney's Office
D Defense Counsel
Rachel L. Keung, Esq.
Defense Counsel
Kathryn L. Hinner, Esq.
O Judge