J-S07013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

MARC ANTHONY CHEESEMAN,

                          Appellant                  No. 2108 EDA 2017


        Appeal from the Judgment of Sentence Entered June 9, 2017
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-SA-0000658-2016


BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 01, 2018

      Appellant, Marc Anthony Cheeseman, appeals from the judgment of

sentence of 60 days’ imprisonment and a $500 fine, imposed after a

magisterial district judge found him guilty of driving with a suspended license,

and the trial court denied Appellant’s subsequent summary appeal. Appellant

solely challenges the sufficiency of the evidence to sustain his conviction.

Additionally, his counsel, Lisa Y. Williams, Esq., seeks to withdraw her

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After

careful review, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

      The trial court briefly summarizes the procedural history of Appellant’s

case as follows:
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             On August 17, 2015, Appellant was charged by the Bucks
      County District Attorney’s Office and the Warrington Township
      Police Department with [d]riving … while his license was …
      suspended [based on Appellant’s prior conviction of driving under
      the influence of alcohol (DUI).]1[] On August 22, 2016, Appellant
      faced a summary trial on the citation before Magisterial Distrit
      Judge Jean Seaman. Judge Seaman found [] Appellant guilty and
      on that same date[,] Appellant was sentenced to 60 days[’]
      imprisonment and ordered to pay the $500 … statutory fine plus
      costs.
         1 75 Pa.C.S. § 1543(b)(1) [(Driving while operating privilege
         is suspended or revoked).]

            Appellant filed a Summary Appeal of his sentence on
      September 22, 2016. A trial in the Bucks County Court of
      Common Pleas … was scheduled and heard on June 9, 2017. []
      Appellant failed to appear and the trial was heard in his absence
      by the undersigned. … At the conclusion of the hearing[,] []
      Appellant was found guilty and sentenced to serve 60 days in the
      Bucks County Correctional Facility. The District Attorney’s Office
      sent a letter to [] Appellant advising him that he was found guilty
      at the hearing in his absence and directed him to appear at the
      correctional facility to begin serving his sentence on July 1, 2017.

Trial Court Opinion (TCO), 8/17/17, at 1-2.

      Appellant filed a timely notice of appeal on June 29, 2017. The trial

court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal and he timely complied, raising the following issue:

“Whether the evidence provided by the Commonwealth was sufficient to

establish that [] Appellant was guilty of driving on August 17, 20[1]5, while

his license was suspended due to a previous [DUI] conviction?”        Pa.R.A.P.

1925(b) Statement, 7/24/17, at 1 (unnumbered). On August 17, 2017, the

trial court issued a Rule 1925(a) opinion, concluding that Appellant’s

sufficiency challenge was waived because he had not ordered the transcript of



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the trial de novo for the court to utilize in assessing his claim. See TCO at 2-

5.

      Thereafter, Appellant requested the trial transcript, and it was filed with

this Court as a supplemental record.          Thus, our review of Appellant’s

sufficiency claim is unhampered, and we will not find waiver based on his

earlier failure to supply the trial court with the transcript.

      On November 30, 2015, Attorney Williams filed with this Court a petition

to withdraw from representing Appellant. She has also filed an Anders brief,

asserting that Appellant’s sufficiency-of-the-evidence issue is frivolous, and

that he has no other non-frivolous issues he could assert on appeal.

      This Court must first pass upon counsel’s petition to withdraw
      before reviewing the merits of the underlying issues presented by
      [the appellant]. 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 his client. Attending the brief must be a letter
      that advises the client of his right to: “(1) retain new counsel to

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      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), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct an independent review of the

record to discern if there are any additional, non-frivolous issues overlooked

by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted).

      In this case, Attorney Williams’ Anders brief complies with the above-

stated requirements. Namely, she includes a summary of the relevant factual

and procedural history, she refers to portions of the record that could arguably

support Appellant’s sufficiency claim, and she sets forth her conclusion that

Appellant’s appeal is frivolous. She also explains her reasons for reaching that

determination, and supports her rationale with citations to the record and

pertinent legal authority. Attorney Williams states in her petition to withdraw

that she has supplied Appellant with a copy of her Anders brief, and she

attached to her petition a letter directed to Appellant in which she informs him

of the rights enumerated in Nischan. Accordingly, counsel has complied with

the technical requirements for withdrawal. We will now independently review

the record to determine if Appellant’s issue is frivolous, and to ascertain if

there are any other, non-frivolous issues he could pursue on appeal.




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     We begin by noting our standard of review of the claim presented by

Appellant:

           In reviewing a sufficiency of the evidence claim, we must
     determine whether the evidence admitted at trial, as well as all
     reasonable inferences drawn therefrom, when viewed in the light
     most favorable to the verdict winner, are sufficient to support all
     elements of the offense. Commonwealth v. Moreno, 14 A.3d
     133 (Pa. Super. 2011). Additionally, we may not reweigh the
     evidence or substitute our own judgment for that of the fact
     finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
     2009). The evidence may be entirely circumstantial as long as it
     links the accused to the crime beyond a reasonable doubt.
     Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

     In this case, Appellant was convicted of driving while his operating

privilege was suspended or revoked, as defined by 75 Pa.C.S. § 1543(b)(1):

     (b) Certain offenses.--

        (1) A person who drives a motor vehicle on a highway or
        trafficway of this Commonwealth at a time when the
        person’s operating privilege is suspended or revoked as a
        condition of acceptance of Accelerated Rehabilitative
        Disposition for a violation of section 3802 (relating to driving
        under influence of alcohol or controlled substance) or the
        former section 3731, because of a violation of section
        1547(b)(1) (relating to suspension for refusal) or 3802 or
        former section 3731 or is suspended under section 1581
        (relating to Driver's License Compact) for an offense
        substantially similar to a violation of section 3802 or former
        section 3731 shall, upon conviction, be guilty of a summary
        offense and shall be sentenced to pay a fine of $500 and to
        undergo imprisonment for a period of not less than 60 days
        nor more than 90 days.

     At Appellant’s trial de novo, the Commonwealth presented the testimony

of Warrington Township Police Officer Kevin Stebner. Officer Stebner stated



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that on August 17, 2015, at approximately 2 o’clock in the afternoon, he was

in the area of Easton Road and Bristol Road in Warrington Township, Bucks

County. N.T. Trial, 6/9/17, at 3, 4. The officer described what occurred at

that location, as follows:

      [Officer Stebner]: I was observing the traffic signal at Bristol Road
      and Easton Road. A Chevy Equinox, gray in color, bearing
      Pennsylvania registration [HMW] 1401 was traveling north on
      Easton Road approaching Bristol Road. That vehicle entered the
      shoulder against two signs that say “keep off shoulder,” passing
      other traffic that was stopped for a red traffic light. This vehicle
      then made a right turn from the shoulder onto eastbound Bristol
      Road.

             I activated my emergency lights and sirens and initiated a
      traffic stop of that vehicle, finding [Appellant] to be the operator.
      Through investigation[,] it was found that [Appellant’s] driver’s
      license was expired and he was also DUI suspended. He was cited
      for those violations.

Id. at 4. After this testimony, the Commonwealth rested its case. Because

Appellant was absent from the trial de novo, no evidence was presented in his

defense.

      Officer Stebner’s testimony was sufficient to prove that Appellant

committed the offense defined by section 1543(b)(1). Officer Stebner testified

that Appellant was driving a vehicle, and that he did not have a valid license

to do so because it had been suspended based on Appellant’s prior DUI

offense. While the Commonwealth did not present documentary evidence to

confirm that at the time of the stop, Appellant’s license was suspended based

on his DUI conviction, nothing in the language of section 1543(b)(1) suggests




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that such proof is required.1        Accordingly, under the general principle that

circumstantial evidence may alone be enough to support a conviction, see

Koch, supra, we conclude that Officer Stebner’s testimony was sufficient to

prove that Appellant committed the offense defined in section 1543(b)(1).

       Therefore, we agree with Attorney Williams’ that the sufficiency

challenge Appellant seeks to raise herein is frivolous.          Additionally, our

independent review of the record reveals no other, non-frivolous issues that

Appellant could pursue on appeal. Thus, we affirm his judgment of sentence

and grant counsel’s petition to withdraw.

       Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/18




____________________________________________


1We acknowledge that Attorney Williams’ attaches to her Anders brief a copy
of Appellant’s Certified Driver History issued by the Pennsylvania Department
of Transportation, which sets forth the periods of time between 1992 and 2015
during which Appellant’s license was suspended. However, that document
was not introduced at Appellant’s trial de novo; thus, we cannot consider it in
assessing the sufficiency of the evidence to sustain Appellant’s conviction.

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