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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT T. JEFFERS                          :
                                               :
                      Appellant                :   No. 2754 EDA 2017

               Appeal from the Judgment of Sentence July 20, 2017
      In the Court of Common Pleas of Delaware County Criminal Division at
                         No(s): CP-23-CR-0004912-2016


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                                   FILED JUNE 18, 2018

        Robert T. Jeffers appeals from the July 20, 2017 judgment of sentence

of six months probation and a $300 fine, imposed following his conviction of

driving under the influence (“DUI”) – general impairment.              Counsel has

moved to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967).1 After thorough review, we grant counsel’s motion to withdraw and

affirm.

        The facts giving rise to Appellant’s conviction were developed at a non-

jury trial on July 18, 2017. On July 17, 2016, Aldan Borough police officers

Joseph Spina and Adam Zahner responded to a domestic disturbance at the
____________________________________________


1   Withdrawal of counsel on direct appeal is governed by Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009).


* Retired Senior Judge Assigned to the Superior Court.
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home of Appellant’s girlfriend, Dartiesha Word. Ms. Word wanted Appellant

to leave her home.    Appellant admitted to the officers that he had been

drinking. He wanted a few minutes to gather some of his belongings. The

officers, after observing Appellant, determined that he was intoxicated and

incapable of driving safely. They directed Appellant to leave, but would not

allow him to drive his vehicle.   Appellant made several phone calls in an

attempt to procure a ride. When he was unable to do so, Ms. Word offered

him bus fare, which he rejected. However, he accepted bus fare from one of

the officers.

      Ms. Word told the officers that she did not want Appellant’s car to

remain in her driveway. With Appellant’s consent, Officer Zahner moved the

car to a legal parking place on the street. The officers watched as Appellant

walked toward the bus stop, and then left the scene.           Officer Spina

continued to patrol the neighborhood. As he swung by Ms. Word’s residence

just a few moments later, he saw Appellant enter his vehicle and proceed to

drive. He activated the lights of his unmarked police vehicle and conducted

a stop. He took Appellant into custody without performing a field sobriety

test as Appellant was irate and the officer “did not feel it was safe to give

him a field sobriety test.”   N.T., 7/18/17, at 20.   Appellant was taken to

Mercy Fitzgerald Hospital, and Officer Spina read him the DL-26 chemical




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warnings form.2       Officer Spina signed the form indicating that Appellant

refused to consent to a blood draw.

       At trial, it was established that Officer Spina had seen persons under

the influence of alcohol, had made traffic stops for suspected DUIs, and that

as a police officer he had completed standardized field sobriety testing

training.   Id. at 8-10.      20.    He described Appellant as exhibiting slurred

speech and glassy, bloodshot eyes.             Appellant was stumbling and swaying

and unable to walk in a straight line, and an odor of alcoholic beverage

emanated from him. Officer Spina opined that Appellant was intoxicated to

the point where he could not safely operate a motor vehicle on the highways

of the Commonwealth.            Id. at 20.        Officer Zahner concurred in that

assessment. Although Ms. Word and Appellant testified to the contrary, the

trial court, sitting as fact-finder, expressly credited the officers’ testimony

and found Appellant guilty.

       Appellant did not file a post-sentence motion. He filed a timely appeal

and, in lieu of filing a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, Counsel filed notice pursuant to Pa.R.A.P.

1925(c)(4), of his intent to file an Anders brief.            In his Anders brief,

Counsel identifies one issue of arguable merit for our review: “Did the
____________________________________________


2  The form used was the version from May 2016, which was prior to the
United States Supreme Court’s decision in Birchfield v. North Dakota, 136
S. Ct. 2160 (2016). There was, however, no preserved Birchfield issue
herein, nor was its holding implicated.



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Commonwealth fail to prove beyond a reasonable doubt that [Appellant]

committed the offense because of the absence of any test measuring his

blood alcohol content and the lack of credibility of the witnesses called by

the Commonwealth?” Appellant’s brief at 5.

      It is well established that, “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.” Commonwealth v. Martuscelli, 54

A.3d 940, 947 (Pa.Super. 2012). There are both procedural mandates for

withdrawal and substantive requirements regarding the contents of a brief

that are imposed under Anders/Santiago. In order to properly withdraw

during direct appeal,

            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 351.          The Anders brief must meet specified

requirements:

      [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


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      law, and/or statutes on point that have led to the conclusion that
      the appeal is frivolous.

Id. at 361. Once counsel has satisfied these mandates, this Court conducts

its own examination of the record to determine whether the appeal is wholly

frivolous. Only if we so find will we grant counsel’s request to withdraw. If

however, we find any of the legal points to be arguably meritorious, we must

afford the indigent defendant the assistance of counsel for purposes of

appeal. Anders, supra at 744.

      Counsel’s brief complies with the mandates of Anders/Santiago. It

contains a summary of the procedural history and facts, with citations to the

record.   Counsel also identifies one issue that potentially supports the

appeal, but states reasons and offers applicable case law as to why the

issue, and the appeal, are frivolous.      Counsel points to the lack of any

evidence from a field sobriety test, a breath test, or a blood test to support

the conviction. He also directs our attention to inconsistent testimony from

the two arresting officers, and their lack of experience in DUI arrests, as the

basis for his contention that the evidence was insufficient and/or that the

verdict was against the weight of the evidence.        Counsel acknowledges,

however, that blood alcohol content need not be quantitatively measured in

order to sustain a DUI conviction and that testimony from credible witnesses

may be enough.     In any event, counsel concludes that the only possible

challenge herein is to the trial court’s determination of the credibility of

Officers Spina and Zahner, which he deems frivolous.



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      Whether we view counsel’s arguable issue as a challenge to the

sufficiency or the weight of the evidence, we agree it is frivolous. Since no

post-sentence motion was filed, any weight of the evidence challenge is

waived.    See Commonwealth v. Ratushny, 17 A.3d 1269, 1272

(Pa.Super. 2011); see also Pa.R.Crim.P. 607 comment (challenges to the

weight of the evidence “shall be raised” either orally on the record prior to

sentencing, by written motion prior to sentencing, or in a post-sentence

motion or be waived on appeal). In reviewing a challenge to the sufficiency

of the evidence, our standard of review 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 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.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017) (en

banc).




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      Appellant was charged with violating Section 3802(a)(1) of the Motor

Vehicle Code, which provides:

      An 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 rendered incapable
      of safely driving, operating or being in actual physical control of
      the movement of the vehicle.

75 Pa.C.S. § 3802(a)(1). We held in Gause, supra at 541, that in order to

prove a violation of this section, “the Commonwealth must show: (1) that

the defendant was the operator of a motor vehicle and (2) that while

operating the vehicle, the defendant was under the influence of alcohol to

such a degree as to render him incapable of safe driving.”           The second

element   requires   proof   of   substantial   impairment,   “a   diminution   or

enfeeblement in the ability to exercise judgment, to deliberate or to react

prudently to changing circumstances and conditions.” Id.

      The issue is whether the officers’ testimony alone, if credited by the

fact-finder, was sufficient to satisfy the Commonwealth’s burden of proving

substantial impairment. As this Court noted in Commonwealth v. Palmer,

751   A.2d   223,    228   (Pa.Super.   2000)    (quoting   Commonwealth        v.

Feathers, 660 A.2d 90, 95 (Pa.Super. 1995) (en banc)), “a police officer

who has perceived a defendant’s appearance and acts is competent to

express an opinion as to the defendant’s state of intoxication and ability to

safely drive a vehicle.” See also Gause, supra (police officer permitted to




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testify that the defendant did not exhibit the typical indicators of alcohol

impairment such as slurred speech, erratic driving, or inability to stand.)

      The trial court sat as the trier of fact and credited the testimony of the

police officers over the contrary testimony of Appellant and his girlfriend.

The officers had an opportunity to observe Appellant for a considerable time

in the home.    They waited there while Appellant made phone calls and

gathered his belongings. The trial court found the uncontradicted evidence

that Officer Zahner moved Appellant’s vehicle onto the street to be the most

compelling evidence that Appellant was too inebriated to drive safely.

Viewing the evidence in the light most favorable to the Commonwealth, as

we must, we find the evidence legally sufficient to support the conviction.

      We have conducted a thorough review of the certified record, and we

concur with counsel’s assessment that there are no preserved non-frivolous

issues for appeal.   Accordingly, we grant counsel’s application to withdraw

and affirm judgment of sentence.

      Application to withdraw filed by J. Anthony Foltz, Esquire, is granted.

Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18




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