J-S38034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DAVID M. SEITZER,                       :
                                        :
                 Appellant              :          No. 2018 MDA 2014

    Appeal from the Judgment of Sentence entered on October 28, 2014
             in the Court of Common Pleas of Lycoming County,
               Criminal Division, No. CP-41-CR-0000882-2013

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED JULY 17, 2015

     David M. Seitzer (“Seitzer”) appeals from the judgment of sentence

imposed following his conviction of criminal mischief.   See 18 Pa.C.S.A.

§ 3304(a)(5).    Additionally, Kirsten A. Gardner, Esquire (“Gardner”),

Seitzer’s counsel, has filed a Petition to Withdraw as counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744

(1967).   We grant Gardner’s Petition to Withdraw and affirm Seitzer’s

judgment of sentence.

     On May 14, 2013, Seitzer was charged with one count of criminal

mischief for damaging a rental property owned by his brother, George

Seitzer (“George”).   Seitzer lived on the property without permission and

was eventually evicted. Thereafter, George discovered extensive damage to

the property.   In a letter to George, Seitzer admitted to damaging the
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property out of emotional pain.      Darlene Moretz (“Moretz”), an insurance

adjuster for Erie Insurance Group (“Erie”), investigated the damages and

determined that they were the result of vandalism. Moretz estimated that

the damages totaled $3,323.79.

        The case proceeded to a non-jury trial, after which Seitzer was found

guilty of criminal mischief. On October 28, 2014, the trial court sentenced

Seitzer to two years of probation and seventy-five hours of community

service. The trial court also ordered Seitzer to pay restitution to Erie in the

amount of $2,823.79, and to George in the amount of $500.00.1             Seitzer

filed a timely Notice of Appeal.

        Seitzer’s counsel, Gardner, has filed an Anders Brief raising the

following question: “Whether the lower court erred [by determining] that

there was sufficient evidence presented at trial to sustain a verdict of guilt as

to the charge of criminal mischief?”     Anders Brief at 4.     Gardner filed a

separate Petition to Withdraw with this Court on March 26, 2015.          Seitzer

filed neither a pro se brief, nor retained alternate counsel for this appeal.

        We must first determine whether Gardner has complied with the

dictates of Anders in petitioning to withdraw from representation.              See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)

(stating that “[w]hen faced with a purported Anders brief, this Court may

not review the merits of any possible underlying issues without first


1
    George had a $500.00 deductible under his insurance policy with Erie.


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examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes an appeal is frivolous and wishes to

withdraw as counsel, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Here, Gardner has complied with each of the requirements of Anders

and Santiago.     Gardner indicates that she conscientiously examined the

record and determined that an appeal would be frivolous. Further, Gardner’s

brief meets the standards set forth in Santiago by providing a factual

summation of Seitzer’s case, with support for her conclusion that sufficient



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evidence was presented at trial to prove criminal mischief, rendering

Seitzer’s appeal wholly frivolous.   Finally, Gardner provided a copy of her

letter to Seitzer informing him of her intention to withdraw as counsel and

advising him of his rights to retain new counsel, proceed pro se, and file

additional claims.   Because Gardner has complied with the procedural

requirements for withdrawing from representation, we must next conduct an

independent review and determine whether Seitzer’s appeal is, in fact,

wholly frivolous.

      Seitzer contends that the trial court erred in determining that there

was sufficient evidence presented to sustain a guilty verdict for criminal

mischief. Anders Brief at 8-9.

      Our standard of review challenging the sufficiency of the evidence is as

follows:

      [W]e consider the evidence in the light most favorable to the
      Commonwealth as verdict winner. In that light, we decide if the
      evidence and all reasonable inferences from that evidence are
      sufficient to establish the elements of the offense beyond a
      reasonable doubt. We keep in mind that it was for the trier of
      fact to determine the weight of the evidence and the credibility
      of the witnesses. The [fact-finder] was free to believe all, part,
      or none of the evidence. This Court may not weigh the evidence
      or substitute its judgment [f]or that of the fact[-]finder.

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007) (citation

omitted).

      A “person is guilty of criminal mischief if he intentionally damages real

or personal property of another.” See 18 Pa.C.S.A. § 3304(a)(5). Here, the



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evidence indicated that George’s property was damaged while Seitzer was

residing there.   N.T., 9/25/14, at 7-8.   Seitzer also admitted to damaging

the property in a letter to George. Id. at 9-10. Furthermore, the insurance

adjuster, Moretz, confirmed that the damage was intentional and not the

result of ordinary use. Id. at 25. Thus, based on the evidence presented at

trial, viewed in a light most favorable to the Commonwealth, we conclude

that the evidence was sufficient to support Seitzer’s criminal mischief

conviction. See Commonwealth v. Adams, 882 A.2d 496, 499 (Pa. Super.

2005) (concluding that evidence was sufficient to support criminal mischief

conviction where the defendant intentionally punched a vehicle, resulting in

specified damages).

      Further, upon our independent review, we conclude that Seitzer’s

appeal is wholly frivolous, and grant Gardner leave to withdraw as counsel.

      Petition to Withdraw as counsel granted.        Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2015




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