J-S19033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    IAN RUTH                                   :
                                               :
                       Appellant               :      No. 1911 EDA 2017


               Appeal from the Judgment of Sentence May 19, 2017
                 in the Court of Common Pleas of Chester County
                Criminal Division at No.: CP-15-CR-0002720-2016


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 11, 2018

       Appellant, Ian Ruth, appeals from the judgment of sentence imposed

following his jury conviction of three counts of receiving stolen property (RSP),

and one count each of driving under the influence of alcohol or a controlled

substance (DUI), unauthorized use of an automobile, person not to possess

firearms, and firearms not to be carried without a license.1 Appellant’s counsel

seeks to withdraw her representation pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We affirm the judgment of sentence and grant counsel’s petition to

withdraw.




____________________________________________


118 Pa.C.S.A. § 3925(a), 75 Pa.C.S.A. § 3802(d)(2) (second offense), and 18
Pa.C.S.A. §§ 3928(a), 6105(a)(1), and 6106(a)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19033-18



        We take the relevant facts and procedural history of this case from our

independent review of the certified record. On July 2, 2016, at 6:00 a.m.,

Sergeant David Smith of the Downingtown Borough Police Department

observed a vehicle with a taillight out and no passenger side mirror.       He

checked the registration, and the vehicle was listed as stolen in Manheim

Township. Sergeant Smith called for backup, and then initiated a traffic stop.

Appellant was the driver of the vehicle, and he had a front seat passenger.

        Sergeant Smith provided Appellant with Miranda2 warnings, after which

Appellant advised that the vehicle belonged to his mother, and that he would

like to call her to resolve the situation.3      Sergeant Smith observed that

Appellant’s eyes were red and watery, and he smelled of alcohol. The sergeant

recovered a small amount of marijuana from Appellant’s pocket, and Appellant

admitted to smoking the drug. Analysis of Appellant’s blood sample showed

a blood alcohol content (BAC) of .108 percent, and the presence of cocaine

metabolite.

        Manheim Township Police confirmed that Susan Heater-Ruth had

reported the vehicle stolen earlier that morning, at 3:45 a.m. Manheim Police

also advised of the possibility of two guns missing from the home in the

vehicle.   Susan Heater-Ruth consented to a search of the car, and police

recovered two firearms from the rear passenger area. Sergeant Smith learned
____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1966).
3Appellant resided with his mother, Susan Heater-Ruth, and his brother, Peter
Ruth, at the time.

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that Appellant did not have a license to carry a firearm, and that Peter Ruth

owned the guns and did not give Appellant permission to use them.

       A jury found Appellant guilty of the above-listed offenses on November

10, 2016.4 On February 7, 2017, the trial court sentenced Appellant to an

aggregate term of not less than seventeen nor more than thirty-four years’

incarceration, plus ninety days on the DUI conviction. Appellant filed a timely

motion to modify and reduce sentence on February 16, 2017. The trial court

held a hearing on the matter on March 7, 2017, and ordered preparation of a

pre-sentence investigation report (PSI). The court held another hearing on

May 19, 2017, and resentenced Appellant to aggregate term of not less than

fourteen nor more than twenty-eight years’ incarceration. Appellant filed a

timely notice of appeal on June 16, 2017.

       On July 10, 2017, in response to the trial court’s concise statement

order, counsel filed a statement of intent to file an Anders Brief.       See

Pa.R.A.P. 1925(c)(4). The trial court entered a Rule 1925(a) statement on


____________________________________________


4The person not to possess firearms charge was bifurcated, and the jury found
Appellant guilty of that offense on the same date. Appellant had prior
convictions for robbery and criminal conspiracy to commit burglary. (See N.T.
Trial, 11/10/16, at 15-16).

       Relevant to the instant appeal, after the Commonwealth rested in the
person not to possess phase of the trial, defense counsel moved for a
judgment of acquittal, arguing that the Commonwealth did not present
evidence regarding the grading of Appellant’s prior offenses as felonies. (See
id. at 16-17). The Commonwealth reopened its case, after the court asked it
if it wished to do so, and elicited testimony regarding the grading of the
offenses. (See id. at 17-22).

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August 1, 2017. See Pa.R.A.P. 1925(a). Counsel filed her petition for leave

to withdraw and Anders brief on January 30, 2018.

           When presented with an Anders brief, this Court may not
     review the merits of the underlying issues without first passing on
     the request to withdraw. Before counsel is permitted to withdraw,
     he or she must meet the following requirements:

                 First, counsel must petition the court for leave
           to withdraw and state that after making a
           conscientious examination of the record, he has
           determined that the appeal is frivolous; second, he
           must file a brief referring to any issues in the record
           of arguable merit; and third, he must furnish a copy
           of the brief to the defendant and advise him of his
           right to retain new counsel or to himself raise any
           additional points he deems worthy of the Superior
           Court’s attention.

     Santiago, [supra] at 361.

Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016)

(some citations and footnote omitted).

     The 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.
Santiago, supra at 361.

     In the instant case, counsel has submitted to this Court an Anders brief

in which she summarized the history of the case, referred to issues in the

record that she believed arguably supported the appeal, and set forth her


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conclusion that the appeal is frivolous, along with citation to supporting

authority. Counsel has also provided a copy of the letter that she sent to

Appellant informing him of his right to retain new counsel or proceed pro se,

to raise any points he deems worthy of this Court’s consideration.

Accordingly, we conclude counsel has complied with the requirements of

Anders and Santiago. We, therefore, turn to the issues raised in the Anders

brief and make an independent determination as to whether the appeal is, in

fact, “wholly frivolous.” Bynum–Hamilton, supra at 184 (citation omitted).

      The Anders Brief presents the following issues for our review:

      I. Did the trial court improperly act as an advocate for the
      prosecution by suggesting that the prosecution reopen its case to
      present further evidence to support the persons not to possess
      firearms charge?

      II. Was sufficient evidence presented to support convictions
      beyond a reasonable doubt?

      III. Did the trial court sentence Appellant improperly without a
      pre-sentence investigation report?

      IV. Did the trial court abuse its discretion in sentencing?

(Anders Brief, at 6) (unnecessary capitalization omitted).

      Appellant first argues that the trial court improperly acted as an

advocate for the prosecution during trial on the bifurcated person not to

possess firearms charge. (See id. at 21-26). Appellant takes issue with the

trial court’s asking the prosecution if it wanted to reopen its case to present

testimony regarding the grading of his prior offenses, after it had rested and




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the defense moved for judgment of acquittal. (See id. at 21-24; see also

supra at *3 n.4). This issue lacks merit.

      Initially, we note that we review a trial court’s decision to reopen a case

for an abuse of discretion. See Commonwealth v. Best, 120 A.3d 329, 347

(Pa. Super. 2015). “Under the law of this Commonwealth a trial court has the

discretion to reopen a case for either side, prior to the entry of final judgment,

in order to prevent a failure or miscarriage of justice.” Id. (citations omitted).

      Additionally,

      . . . [J]udicial proceedings must be unbiased and avoid the
      appearance of bias. See, e.g., Commonwealth v. Myma, 278
      Pa. 505, 123 A. 486 (1924) (“[T]he practice of a judge entering
      into the trial of a case as an advocate is emphatically disapproved
      . . . and that his undue interference, impatience, or participation
      in the examination of witnesses’ may tend to prevent the proper
      and unbiased presentation of the case.”)[.]

                                  *    *    *

      . . . [W]hen a judge improperly acts as advocate, and his actions
      have an undue effect on the judicial process, a defendant may be
      entitled to relief. . . .

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007), cert. denied, 552

U.S. 1316 (2008) (one citation omitted).

      Here, during the Commonwealth’s case in chief, it moved into evidence

as exhibits Appellant’s prior guilty pleas for robbery and criminal conspiracy

to commit burglary, both of which plainly reflect the grading of the offenses

as felonies. (See N.T. Trial, 11/10/16, at 14-18; see also Exhibits C-17 and

C-18).   Furthermore, there is no grading for these offenses of less than a



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felony. (See N.T. Trial, 11/10/16, at 17, 22). After review of the record, we

cannot conclude that the trial court improperly acted as an advocate for the

prosecution in inquiring if it wished to reopen its case to present further

evidence on this point, or that the court’s action had any undue effect on the

trial. See Rega, supra at 1018. We discern no abuse of discretion in the

trial court’s decision to reopen the record prior to the verdict.      See Best,

supra at 347. Appellant’s first issue merits no relief.

       Appellant next challenges the sufficiency of the evidence supporting his

DUI and three RSP offenses (relating to the vehicle and firearms).              (See

Anders Brief, at 28-33).5 We will address his sufficiency claims seriatum.

              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 every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
       considered. Finally, the finder of fact [,] while passing upon the
       credibility of witnesses and the weight of the evidence produced
       is free to believe all, part or none of the evidence.
____________________________________________


5 Appellant does not raise specific sufficiency arguments regarding his
remaining offenses, and appears to contest only the DUI and RSP convictions.
(See Anders Brief, at 27-36).

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Commonwealth v. Davison, 177 A.3d 955, 957 (Pa. Super. 2018) (citation

omitted).

       Appellant first challenges his DUI conviction, arguing that the

Commonwealth presented insufficient evidence that he was incapable of safely

operating his vehicle, where Sergeant Smith observed no erratic driving,

speeding, or weaving. (See Anders Brief, at 28-29). We disagree.

       The relevant section of the DUI statute6 provides as follows:

       (d) Controlled substances.—An individual may not drive,
       operate or be in actual physical control of the movement of a
       vehicle under any of the following circumstances:

                                     *     *     *

       (2) The individual is under the influence of a drug or combination
       of drugs to a degree which impairs the individual’s ability to safely
       drive, operate or be in actual physical control of the movement of
       the vehicle.

75 Pa.C.S.A. § 3802(d)(2).

       Here, the record reflects that, while Sergeant Smith conversed with

Appellant regarding ownership of the vehicle, Appellant exhibited multiple

signs of impairment, specifically red, watery eyes and an odor of alcohol. (See

N.T. Trial, 11/09/16, at 29). Appellant told the sergeant that he had smoked

marijuana, and a blood test showed that he was under the influence of cocaine

and alcohol. (See id. at 29-30, 33-34). The sergeant testified that, in his

opinion, Appellant was not capable of operating a motor vehicle safely, and
____________________________________________


6The trial court sentenced Appellant on 75 Pa.C.S.A. § 3802(d)(2). (See N.T.
Resentencing, 5/19/17, at 26; Criminal Docket, at 3-4; Trial Court Opinion,
8/01/17, at unnumbered page 1).

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that Appellant was under the influence of a controlled substance and alcohol

at the time he was driving the car. (See id. at 35). Based on the foregoing,

viewing the evidence in the light most favorable to the Commonwealth, see

Davison, supra at 957, we conclude that it was more than sufficient to

establish that Appellant was impaired to an extent that he was unable to safely

drive. Therefore, Appellant’s challenge to his DUI conviction fails.

      Appellant next argues that the evidence was insufficient to sustain his

RSP convictions, relating to Susan Heater-Ruth’s vehicle and Peter Ruth’s two

firearms. (See Anders Brief, at 30-33). Appellant maintains that he had

permission to use his mother’s vehicle, and that he did not know that it was

stolen or probably stolen. (See id. at 30). Appellant also claims that the

Commonwealth failed to establish his constructive possession of the two

firearms found behind the front passenger seat of the vehicle. (See id. at 31-

33). We disagree.

      A person is guilty of RSP if:

      he intentionally receives, retains, or disposes of movable property
      of another knowing that it has been stolen, or believing that it has
      probably been stolen, unless the property is received, retained, or
      disposed with intent to restore it to the owner.

18 Pa.C.S.A. § 3925(a).

      Therefore, the Commonwealth must establish three elements: “(1)

intentionally acquiring possession of the movable property of another; (2) with

knowledge or belief that it was probably stolen; and (3) the intent to deprive




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permanently.” Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super.

2015) (en banc) (citations omitted).

      With regard to Susan Heater-Ruth’s vehicle, Appellant contests the

second element. “A person ‘knows’ that goods are stolen if he is ‘aware’ of

that fact.” Id. (citation omitted). The guilty knowledge required may be

inferred from circumstantial evidence. See id. Circumstantial evidence of

guilty knowledge may include the recency of the theft, the place or manner of

possession, the defendant’s conduct or statements at the time of arrest, a

false explanation for the possession, or any other evidence connecting the

defendant to the crime. See id. at 268.

      Here, Appellant indicated to Sergeant Smith that he had permission to

drive his mother’s vehicle, and that he would like to call her to resolve the

situation. (See N.T. Trial, 11/09/16, at 27). However, Susan Heater-Ruth

testified that she did not give Appellant permission to drive her vehicle on the

morning of the incident, that he does not have a drivers’ license, and that he

is not covered by her insurance. (See id. at 77-78). She described a previous

conversation with Appellant “rang[ing] from yelling to pleading with him” not

to drive her car. (Id. at 78). Ms. Heater-Ruth reported the car stolen at 3:45

a.m. when she discovered that it was missing from her home, and Sergeant

Smith stopped Appellant in the vehicle a few hours later. (See id. at 11, 37,

64, 78-79). In light of the foregoing, we conclude that the Commonwealth

presented ample evidence of Appellant’s knowledge that he did not have

permission to drive his mother’s vehicle, and that he had stolen it.

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      With respect to his RSP convictions for the two firearms found in the

vehicle, Appellant contests that the evidence established the first element of

RSP, i.e., that he was in possession of the guns. See Robinson, supra at

265. Because Appellant was not in physical possession of the firearms, the

Commonwealth was required to prove that he constructively possessed them.

See Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013),

appeal denied, 78 A.3d 1090 (Pa. 2013).

            Constructive possession is a legal fiction, a pragmatic
      construct to deal with the realities of criminal law enforcement.
      Constructive possession is an inference arising from a set of facts
      that possession of the contraband was more likely than not. We
      have defined constructive possession as conscious dominion. We
      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

Id. (citation omitted).

      Instantly, Peter Ruth testified that, on the morning of the incident, he

noticed that the safe where he stored his two firearms was missing from his

bedroom. (See N.T. Trial, 11/09/16, at 87-88, 90). He further testified that

Appellant was aware of the safe; that he did not give Appellant the code or

keys to access it; and that he never gave Appellant permission to take or

borrow the firearms. (See id. at 89, 91-92). Within hours of Peter Ruth’s

discovery that the firearms were missing, police recovered them from the back

passenger side of Ms. Heater-Ruth’s vehicle, within arms’ reach of where

Appellant had been driving. (See id. at 43). When viewed in their totality,



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these facts and circumstances support the jury’s finding that Appellant was in

constructive possession of the firearms.        See Hopkins, supra at 820.

Accordingly, Appellant’s sufficiency claims concerning his RSP convictions fail.

       Appellant’s final two claims challenge the discretionary aspects of his

sentence. (See Anders Brief, at 37-48). Specifically, Appellant argues that

the court improperly sentenced him without a PSI, and that it imposed an

excessive sentence without considering mitigating factors. (See id. at 37, 46-

47).

              Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right. Rather, Appellant must
       first meet his burden of satisfying the following four elements
       before we will review the discretionary aspect of a sentence:

             (1) whether appellant has filed a timely notice of
             appeal, see Pa.R.A.P. 902 and 903; (2) whether the
             issue was properly preserved at sentencing or in a
             motion to reconsider and modify sentence, see
             Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
             fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
             is a substantial question that the sentence appealed
             from is not appropriate under the Sentencing Code,
             42 Pa.C.S.[ ] § 9781(b).

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017),

appeal denied, 174 A.3d 1029 (Pa. 2017) (quotation marks and case citations

omitted).

       In the instant case, Appellant met the above elements by filing a timely

notice of appeal, preserving the issues, and including a Rule 2119(f) statement

in his brief. Additionally, both of Appellant’s issues raise substantial questions.

See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724–25 (Pa. Super.

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2013); see also Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.

Super. 2015). Therefore, we will address them on the merits. Our standard

of review is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Johnson, supra at 826 (citations omitted).

      Appellant first contends that the trial court improperly sentenced him

without a PSI. (See Anders Brief, at 37-40). This claim is belied by the

record.

      Initially, we note that

             The Pennsylvania Rules of Criminal Procedure vest a
      sentencing judge with the discretion to order a pre-sentence
      investigation (PSI) as an aid in imposing an individualized
      sentence. Specifically, Pa.R.Crim.P. 702 provides, in relevant
      part, the following:

            702. Aids in Imposing Sentence

            (A) Pre-sentence Investigation Report

            (1) The sentencing judge may, in the judge’s
            discretion, order a pre-sentence investigation report
            in any case.

            (2) The sentencing judge shall place on the record the
            reasons for dispensing with the pre-sentence
            investigation report if the judge fails to order a pre-
            sentence report in any of the following instances:


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           (a) when incarceration for one year or more is a
           possible disposition under the applicable sentencing
           statutes[.]

     Pa.R.Crim.P. 702(A)(1),(2)(a) (bold in original).

                                 *     *      *

           The first responsibility of the sentencing judge [is] to be
     sure that he ha[s] before him sufficient information to enable him
     to make a determination of the circumstances of the offense and
     the character of the defendant. Thus, a sentencing judge must
     either order a PSI report or conduct sufficient presentence inquiry
     such that, at a minimum, the court is apprised of the particular
     circumstances of the offense, not limited to those of record, as
     well as the defendant’s personal history and background. . . . The
     court must exercise the utmost care in sentence determination if
     the defendant is subject to a term of incarceration of one year or
     more[.]

Carrillo-Diaz, supra at 725–26 (case citation and footnote omitted).

     Here, the trial court initially did sentence Appellant on February 7, 2017,

without first ordering a PSI. However, at the hearing on Appellant’s motion

for reconsideration of sentence, the court indicated that it was open to

revisiting the sentence and to receiving additional information.     (See N.T.

Hearing, 3/07/17, at 4-6). It ordered preparation of a PSI and a drug and

alcohol evaluation. (See id. at 7, 9). Defense counsel and Susan Heater-

Ruth provided the court with additional information regarding Appellant’s

background, including his drug and alcohol abuse, mental health issues, and

time spent in foster care. (See id. at 2-3, 5-6). At the resentencing hearing,

the court heard from Appellant, who recounted his struggles with substance

abuse.   (See N.T. Resentencing, at 21-23).       The court then resentenced

Appellant, with the benefit of a PSI, additional testimony, and evaluations.


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(See id. at 21, 24, 27). Therefore, Appellant’s claim that the court improperly

sentenced him without a PSI is baseless, and is belied by the record.

      In his final issue, Appellant argues that the trial court abused its

discretion by imposing an excessive sentence without considering his

rehabilitative needs and mitigating factors. (See Anders Brief, at 43-47). He

maintains that court did not take into consideration his drug and alcohol abuse

in formulating an appropriate sentence. (See id. at 46-47). This issue does

not merit relief.

      We emphasize that where “the trial court has the benefit of a pre-

sentence report, we presume that the court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with any mitigating factors.” Johnson, supra at 827 (citation omitted).

      Here, as previously discussed, the trial court had the benefit of a PSI at

resentencing, and it had heard from Susan Heater-Ruth, Appellant, and

defense counsel regarding Appellant’s troubled background and struggles with

substance abuse. (See N.T. Hearing, 3/07/17, at 2-3, 5-6; see also N.T.

Resentencing, at 21-23). Before resentencing Appellant, the court expressly

stated that it had taken everything the parties brought to its attention into

account, and explained that Appellant’s prior criminal history was the major

driving force behind the sentence. (See N.T. Resentencing, at 24). Therefore,

the record reflects that the court formulated its sentence taking into

consideration all relevant mitigating information in Appellant’s personal

history.

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     Because we discern no abuse of discretion in the court’s imposition of

sentence, Appellant’s final issue merits no relief. See Johnson, supra at

826. Furthermore, after independent review, we determine that there are no

other non-frivolous bases for appeal, and this appeal is “wholly frivolous.”

Bynum–Hamilton, supra at 184 (citation omitted).

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/18




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