J-S64037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CANDY ANN SLIKER                           :
                                               :
                       Appellant               :   No. 968 WDA 2019

          Appeal from the Judgment of Sentence Entered June 5, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0000653-2018


BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED DECEMBER 10, 2019

        Candy Ann Sliker (Sliker) appeals from the judgment of sentence

entered in the Court of Common Pleas of Erie County (trial court) after her

conviction of Driving Under the Influence (DUI), General Impairment, 75

Pa.C.S. § 3802(a)(1), and related charges.1            Sliker’s counsel seeks to

withdraw from 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.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The related charges included DUI, Highest Rate, 75 Pa.C.S. § 3802(c);
Driving Vehicle at Unsafe Speed, 75 Pa.C.S. § 33361; and Disorderly Conduct,
18 Pa.C.S. § 5503.
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      We take the following background facts and procedural history from the

trial court’s August 8, 2019 opinion and our independent review of the record.

The Commonwealth charged Sliker with the above crimes for an incident that

occurred on January 24, 2018, at approximately 10:56 P.M.

      At the March 29, 2019 bench trial, Edwin Bogert (Bogert) testified that

on the night in question, he called 911 because he heard a crash, observed

snow flying, and saw a pickup truck cross Sciota Street before it rested in a

swamp on the side of the road. (See N.T. Trial, 3/29/19, at 7-8). Officers

Brett Sproveri and Jordan Kitchen of the Corry City Police Department testified

that they were dispatched to the scene. (See id. at 13, 36-37). At the scene,

the officers observed Sliker standing thigh-deep in swampy water on the

driver’s side of a partially submerged blue pickup truck, which later was

determined to be registered to her. (See id. at 14-15, 17, 37).

      Once the officers exited their vehicle, Sliker immediately asked them if

they had caught the driver. (See id. at 15, 37). In spite of this question, the

officers did not see any evidence that any other person had been present.

Officer Sproveri testified that as he and Officer Kitchen approached Sliker,

they were breaking the thin ice, but there was no broken ice evidencing that

anyone had fled from the vehicle and “no evidence whatsoever that there was

another occupant in that vehicle.” (Id. at 16). Officer Kitchen testified to the

same observations. (See id. at 37) (Officer Kitchen stating that that he did

not observe any sign that anyone else had either been in the vehicle or fled


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the scene, noting there were no “footprints, any disturbed brush, [nor] any

broken ice.”); (see also id. at 8) (Bogert testifying he did not observe anyone

leave the vehicle and only saw Sliker exit it when the police arrived.).

      As the officers approached Sliker to assist her out of the water, they

detected a strong odor of alcohol emanating from her and they noted that her

speech was slurred. (See id. at 18, 24-25, 37). Sliker stated that she thought

she had sustained a back injury and some other minor injuries. (See id. at

18). The officers called an ambulance to transport Sliker to Corry Memorial

Hospital. (See id.).

      When informed by Officer Sproveri at the hospital that she would be

arrested for DUI based on evidence that she was intoxicated and had been

driving the vehicle, Sliker “began screaming profanities, [and became] very

belligerent [and] uncontrollable”. (Id at 26; see id. at 25, 38). As the officer

read her the DL-26 chemical test warning for a blood draw, Sliker “continued

to yell, scream, [and] holler.”   (Id. at 27).    The officers contacted their

supervisor, Sergeant Tommy Bebee. He came to the hospital and, as he read

the DL-26 form to Sliker again, she “began hitting and trying to strike [him,]

mak[ing] contact with him a couple of times[.]” (Id. at 28). Ultimately, Sliker

refused the blood test. (See id.). Following the refusal, the officers obtained

a search warrant and testing revealed that Sliker’s BAC was 0.187%. (See

id. at 28-29).




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      Sliker testified that she was not operating the pickup truck on the night

in question and only drank two beers and a shot in the two-and-a-half hours

prior. (See N.T. Trial, supra at 42, 44). She maintained that the individual

who had been driving fled the scene after the accident because he was not

permitted to drive. (See id. at 46). Sliker’s best friend, Vera Campbell, stated

that she was drinking with Sliker for several hours and then saw her get in

her pickup truck with an unknown individual in the driver’s seat. (See id. at

55-58).

      At the conclusion of the non-jury trial, based on its consideration of the

evidence, the court stated that there was “no doubt in [its] mind that [Sliker]

was the driver of her own truck that evening, and was intoxicated.” (N.T.

Trial, at 62). It found the testimony of Sliker and Campbell to be incredible

and found the testimony of Bogert and Officers Sproveri and Kitchen to be

“one hundred percent credible.” (Id. at 63).

      The court sentenced Sliker to six months in a restrictive intermediate

punishment program with thirty days electronic monitoring and one year of

probation. Sliker filed a timely notice of appeal and counsel filed a statement

of intent to file an Anders brief in lieu of a Rule 1925(b) statement. See

Pa.R.A.P. 1925. Appointed counsel has filed an Anders brief and petition to

withdraw.




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      Before reaching Sliker’s issue, we must consider counsel’s request to

withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009). It is well-settled that:

      Court-appointed counsel who seek to withdraw from representing
      an appellant on direct appeal on the basis that the appeal is
      frivolous must:

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

Id. (citations omitted).   Further, our Supreme Court ruled in Santiago,

supra, that Anders briefs must contain “a discussion of counsel’s reasons for

believing that the client’s appeal is frivolous[.]” Santiago, supra at 360.

      Instantly,   counsel’s   Anders   brief   and   application   to   withdraw

substantially comply with the applicable technical requirements and reveal

that he has made “a conscientious examination of the record [and] determined

that the appeal would be frivolous[.]” Lilley, supra at 997 (citation omitted).

Additionally, the record establishes that counsel served Sliker with a copy of

the Anders brief and application to withdraw and a letter of notice, which

advised her of her right to retain new counsel or to proceed pro se and raise

additional issues to this Court.   See id.; (see also Petition for Leave to

Withdraw as Counsel, 9/23/19, Exhibit A, at 1). In addition, the petition and


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brief cite “to anything that arguably might support the appeal[.]”      Lilley,

supra at 997 (citation omitted); (see also Anders Brief, at 4-8). As noted

by our Supreme Court in Santiago, the fact that some of counsel’s statements

arguably support the frivolity of the appeal does not violate the requirements

of Anders. See Santiago, supra at 360-61.

       Having concluded that counsel’s petition and brief comply with the

technical Anders requirements, we must “conduct [our] own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.”       Lilley, supra at 998 (citation

omitted).

       Sliker argues that the Commonwealth failed to provide sufficient

evidence to sustain the DUI convictions.          (See Anders Brief, at 6-7).

Specifically, she maintains that the Commonwealth did not establish that she

was driving the vehicle on the night in question. (See id.).2

____________________________________________


2 “The standard we apply in reviewing the sufficiency of 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 factfinder to find
every element of the crime beyond a reasonable doubt.” Commonwealth v.
Bowen, 55 A.3d 1254, 1260 (Pa. Super. 2012) (citation omitted). “In
applying [the above] test, we may not weigh the evidence and substitute our
judgment for that of the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not preclude every
possibility of innocence.” Id. (citation omitted). “Any doubts regarding a
defendant’s guilt may be resolved by a 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. (citation omitted). “The
Commonwealth may sustain its burden of proving every element of the crime



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       To establish the crime of DUI, General Impairment and Highest Rate,

the Commonwealth must prove that the defendant “was driving, operating, or

in actual physical control of the movement of a vehicle” and that her blood

alcohol   was    over    0.16%      within     two   hours   of    her   driving.   See

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013), appeal

denied, 79 A.3d 1098 (Pa. 2013) (citation omitted); see also 75 Pa.C.S. §§

3802(a)(1), (c).

       In support of its case, the Commonwealth may offer evidence of “the

offender’s actions and behavior, including manner of driving and ability to pass

field sobriety tests; demeanor, including toward the investigating officer;

physical appearance, particularly bloodshot eyes and other physical signs of

intoxication; odor of alcohol, and slurred speech.”               Teems, supra at 145

(citation omitted). “The weight to be assigned these various types of evidence

presents a question for the fact-finder, who may rely on his or her experience,

common sense, and/or expert testimony.” Id. (citation omitted).

       Here, the Commonwealth offered evidence that upon their arrival at the

scene of the accident, Officers Sproveri and Kitchen observed that Sliker was

the only individual present, with no evidence that anyone else had been in the


____________________________________________


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.” Id. (citation omitted).
“Finally, the trier 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.” Id. (citation omitted).

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truck or had fled the scene. Sliker was standing thigh-deep in a swamp on

the driver’s side of her partially submerged pickup truck.    She smelled of

alcohol and slurred her speech. Before landing in the swamp to the west side

of the road, the pickup truck had struck a snowbank on the east side of the

road, gone out of control, and crossed the roadway. Upon being told that she

was being arrested for DUI, Sliker became very belligerent, verbally and

physically assaulting the police at the hospital. A blood test performed after

the execution of a search warrant revealed that Sliker’s BAC was 0.187%.

      Importantly, the trial court found the above evidence presented by the

Commonwealth witnesses 100% credible, and Sliker and her version of events

wholly incredible, a finding we will not disturb where it is supported by the

record. See Commonwealth v. Lynn, 192 A.3d 194, 199 (Pa. Super. 2018)

(“Where issues of credibility and weight of the evidence are concerned, it is

not the function of the appellate court to substitute its judgment based on a

cold record for that of the trial court.”) (citation omitted); see also Bowen,

supra at 1260.

      Therefore, we conclude, based on the foregoing evidence, that the trial

court properly found it was sufficient to support a conviction of DUI-General

Impairment and Highest Rate. We concur with counsel’s determination that

Sliker’s issue on appeal is wholly frivolous.   See Bowen, supra at 1260;

Lilley, supra at 998. Additionally, we find no other non-frivolous issues that

would merit relief.


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     Judgment of sentence affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2019




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