October 8, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
ANTHONY EASTON, Appellant
Appeal from the Judgment of Sentence of November 26, 2012 In the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0000954-2012.
BEFORE: DONOHUE, J., WECHT, J., and COLVILLE, J. [*]
Anthony Easton ("Appellant") appeals his November 26, 2012 judgment of sentence. Appellant's counsel has filed a petition to withdraw as counsel, together with an "Anders/Santiago" brief. We grant counsel's petition to withdraw, and we affirm Appellant's judgment of sentence.
On March 27, 2012, Appellant was charged by criminal information with driving under the influence ("DUI")—general impairment,  driving without a license,  driving while operator's license suspended—DUI related, limitations on overtaking on the left,  driving on roadways laned for traffic, and careless driving. On November 13 and 14, 2012, a jury heard evidence on the DUI charge, while the trial court considered the same evidence as it related to the summary offenses. The evidence produced at the trial is as follows.
On November 26, 2011, at approximately 11:20 p.m., Ryan Turney ("Turney") was travelling on Old Philadelphia Pike in Salisbury Township, Lancaster County, at forty-five miles per hour, five miles per hour over the posted speed limit. As he did so, a van that was travelling at an extremely high speed passed his vehicle. The van proceeded to round a bend ahead, and continued beyond Turney's line of sight. When Turney rounded that same bend, he saw that the van was involved in a traffic accident. Turney stopped his vehicle at the scene of the accident and called 911.
Lisa Taylor ("Taylor") was travelling along the same road with her daughter in her SUV. Taylor was unfamiliar with the general area. Her daughter was operating a GPS device to help them find their destination. The GPS device indicated to Taylor that her next turn was ahead on her left. Taylor slowed her vehicle, activated her turn signal, and started to make the left hand turn from the right hand lane. As she did so, the van driven by Appellant, the same one that passed Turney seconds earlier, attempted to pass her in the oncoming traffic lane, and struck her SUV on the driver's side door. Taylor immediately jerked her car to the left and came to a stop. The van proceeded a bit further before running off the road and colliding with a tree.
Pennsylvania State Trooper Tien Duong responded to the scene of the accident. Trooper Duong immediately noticed that both vehicles had severe front-end damage. Trooper Duong noted that the speed limit on that particular stretch of road was forty miles per hour, and that the area fell within a no-passing zone. After speaking with Appellant, Trooper Duong believed that Appellant had been drinking alcohol. Appellant had glassy, bloodshot eyes. Appellant was swaying while standing up. His speech was slurred, and he smelled like alcohol. Appellant admitted to Trooper Duong that he was the driver of the van, and that he had consumed beer prior to driving. Trooper Duong asked Appellant to perform field sobriety tests.
Appellant declined the tests, citing a leg injury as the reason for declining. Trooper Duong did not observe any obvious injuries to Appellant, but, in an abundance of caution, accepted Appellant's excuse. Trooper Duong then read the standard chemical testing warnings to Appellant. After hearing and appearing to understand the warnings, Appellant refused a breath test.
Edward Clark ("Clark"), Appellant's brother, was the passenger in Appellant's van. Clark was attending a family event in the area. Appellant had just picked Clark up in the van. In that short period of time, Clark did not see Appellant drinking alcohol, nor did Clark believe that Appellant was inebriated. Clark stated that Taylor did not use her turn signal prior to attempting to turn left.
Melissa Townsend ("Townsend"), Appellant's former paramour and mother of two of his children, owned the van that Appellant was driving. Even though she was in the early stages of labor and was about to deliver a baby, Townsend went to the scene of the accident. Townsend claimed that she never saw Trooper Duong talking to Appellant, and that Trooper Jon Smith was the only police officer that interacted with Appellant. Additionally, Townsend did not believe that Appellant was under the influence of alcohol at the time of the accident. When Townsend arrived at the scene of the accident, she observed that Appellant walked and talked normally. Townsend noted that Appellant did not have glassy eyes, that his speech was not slurred, and that he did not smell of alcohol. Townsend had seen Appellant that afternoon, but had not seen him again until after the accident. Hence, Townsend could not account for Appellant's location or activities during the intervening time period.
At the conclusion of the trial, the jury, favoring the testimony presented by the Commonwealth over that presented by Appellant, found Appellant guilty of DUI. The trial court found Appellant not guilty of driving without a license, but found him guilty on all of the other charged summary offenses. On November 26, 2012, the trial court, having determined that the instant judgment was Appellant's third DUI conviction, sentenced Appellant to one to five years' incarceration on the DUI count. The trial court also sentenced Appellant to sixty days' incarceration on the driving with a suspended license (DUI related) count, which the court ordered to run concurrently with the DUI sentence. Finally, the trial court sentenced Appellant to pay $25 plus costs on each of the remaining summary counts. No post-sentence motions were filed.
On December 21, 2012, Appellant filed a notice of appeal. On December 31, 2012, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 18, 2013, pursuant to Pa.R.A.P. 1925(c)(4), counsel for Appellant filed a statement of intent to file an Anders/Santiago brief in lieu of a Rule 1925(b) concise statement. The trial court did not issue an opinion in response to the statement.
As noted above, Appellant's counsel has filed a letter seeking to withdraw his representation pursuant to Anders and Santiago. Before addressing the merits of the underlying issue presented by Appellant, we first must pass upon counsel's petition to withdraw. 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 the appellant. Attending the brief must be a letter that advises the appellant of his or her right to "(1) retain new counsel to 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); see Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010); Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005).
Our review of counsel's petition to withdraw and the accompanying brief reveals that counsel substantially has complied with the Santiago requirements. Counsel has provided a procedural history detailing the events relevant to the instant appeal in his brief, along with appropriate citations. Brief for Appellant at 5. Counsel has set forth the information in the record that counsel believes arguably would support Appellant's pursuit of relief. Id. at 7. Appellant identified three separate claims to counsel that Appellant wanted to raise on appeal: (1) a challenge to the sufficiency of the evidence; (2) a challenge to the Commonwealth's failure to call Trooper Jon Smith to testify at trial; and (3) a challenge to the discretionary aspects of Appellant's sentence. Id. at 7, 11-12. Counsel addresses the applicable principles of law and facts, ultimately concluding that each of these claims would be frivolous. Id. at 7, 13. In her motion to withdraw as counsel filed with this Court, counsel again certifies that she has "conducted a review of the record, including the discovery, and trial and sentencing transcripts, " and has concluded that "the instant appeal is wholly frivolous." See Application for Leave to Withdraw as Counsel, 5/22/2013, ¶¶7-8 (unpaginated).
Additionally, in accordance with Nischan, counsel has sent Appellant a letter informing Appellant that: (1) counsel believes that the instant appeal was "wholly frivolous;" (2) counsel is filing a motion to withdraw her representation in accordance with the aforementioned belief of frivolity; and (3) Appellant has an "absolute right to hire a private attorney to pursue [his] appeal in the Superior Court" or to proceed in the instant appeal pro se. Letter, 5/22/2013. Accordingly, we conclude that counsel substantially has complied with the requirements set forth in Nischan. 928 A.2d at 353; see also Millisock, 873 A.2d at 751.
We now must conduct an independent review of the record to determine whether the issues identified by Appellant in this appeal are, as counsel claims, wholly frivolous, or if there are any other meritorious issues present in this case. Santiago, 978 A.2d at 355 (quoting Anders, 386 U.S. at 744) ("[T]he court – not counsel – then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw . . . .").
We begin with Appellant's challenge to the sufficiency of the evidence presented at trial. When evaluating the sufficiency of the evidence, our standard of review requires us to view all of the evidence and reasonable inferences drawn therefrom in the light most favorable to the verdict winner, and to determine whether the fact-finder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super. 2003). We may not re-weigh the evidence or substitute our judgment for that of the fact-finder. "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." Id. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa.Super. 2011).
Appellant was convicted of DUI pursuant to 75 Pa.C.S. § 3802(a)(1), which provides that "[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is incapable of safely driving, operating, or being in actual physical control of the movement of the vehicle." Id. Appellant, who admitted that he was the driver of the van, was exceeding the speed limit. Appellant then slammed his vehicle into Taylor's vehicle in an attempt to pass Taylor's vehicle in a traffic zone where passing is not permitted. Trooper Duong, an officer experienced in detecting the external indicia of inebriation, observed Appellant swaying while on his feet, and displaying glassy eyes and slurred speech. The trooper also detected a strong odor of alcohol emanating from Appellant's body. Moreover, Appellant admitted that he had been drinking beer before driving the van that was involved in the accident. This evidence was sufficient to establish beyond a reasonable doubt that Appellant drove the van after imbibing alcohol and that the alcohol rendered Appellant incapable of safely operating the vehicle.
Appellant also admitted his guilt to the driving with a suspended license—DUI related. See Notes of Testimony ("N.T."), 11/14/2012, at 168-69. Thus, we need not discuss that count any further.
Next, Appellant was convicted of limitations on overtaking on the left pursuant to 75 Pa.C.S. § 3305, which provides that:
No vehicle shall be driven to the left side of the center or marked center line of the roadway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken.
Id. Trooper Duong testified that the area in which the accident occurred is a no passing zone. Taylor testified that, as she was attempting to turn left, Appellant attempted to pass her in the left lane, which was a lane for oncoming traffic, and drove his van into the driver's side door of her SUV. This evidence was sufficient to prove that Appellant violated this section of the Motor Vehicle Code, as that evidence demonstrated clearly that Appellant attempted to pass in the left lane and that the maneuver could not be performed without "interfering with the operation of . . . any vehicle overtaken." Id.
Appellant also was convicted of driving on roadways laned for traffic, pursuant to 75 Pa.C.S. § 3309. That section provides, in pertinent part, as follows:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.
Id. The trial evidence established that, in a no-passing zone, Appellant moved his vehicle into the left lane and attempted to pass Taylor's SUV. Appellant's attempt to move into that lane obviously could not have been done safely, as the move resulted in an accident. Consequently, the evidence was sufficient to establish a violation of this section beyond a reasonable doubt.
Appellant also was convicted of careless driving pursuant to 75 Pa.C.S. § 3714, which provides that "[a]ny person who drives a vehicle with careless disregard for the safety of persons or property is guilty of careless driving, a summary offense." Id. Instantly, Appellant exceeded the posted speed limit, left his lane in an attempt to pass a vehicle in a no-passing zone, and caused an accident that resulted in damage to Taylor's vehicle. The evidence plainly was sufficient to support Appellant's careless driving conviction.
Appellant's last two issues are waived. Appellant first claims that the Commonwealth should have called Trooper Jon Smith, who interacted with Appellant at the scene of the accident, as a fact witness at trial. While Appellant pointed out to the jury that the Commonwealth did not call Trooper Smith to testify, see N.T. at 138, Appellant never formally objected to the fact that the trooper was not called. Thus, Appellant never raised the issue as one of error for the trial court to resolve in the first instance. "A defendant must make a timely and specific objection at trial or face waiver of her issue on appeal." Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa.Super. 2006) (citing Pa.R.A.P. 302(a)); see also Kaufman v. Campos, 827 A.2d 1209, 1212 (Pa.Super. 2003) ("In order for a claim of error to be preserved for appellate review, a party must make a timely and specific objection before the trial court at the appropriate stage of the proceedings; the failure to do so will result in waiver of the issue."). Having failed to raise the issue below, Appellant has waived this issue.
Finally, Appellant challenges the discretionary aspects of his sentence. Specifically, Appellant argues that the five-year maximum portion of his sentence was "too harsh." Brief for Appellant at 12. "Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed." Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citing Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003)). Appellant did not file post-sentence motions in this case. Appellant also did not object to the discretionary aspects of his sentence in the sentencing proceeding. Consequently, this issue also is waived.
We have conducted an independent review of the record. We agree with counsel that the issues that Appellant seeks to litigate in this appeal are wholly frivolous. Additionally, we have discovered no other issues of arguable merit that would sustain an appeal in this case.
Judgment of sentence affirmed.
Counsel's motion to withdraw as counsel granted.