J-S69035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JENNIFER LYNN HENRY,

                            Appellant                      No. 550 MDA 2016


             Appeal from the Judgment of Sentence March 17, 2016
                in the Court of Common Pleas of Adams County
               Criminal Division at No.: CP-01-CR-0000694-2015


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED OCTOBER 20, 2016

        Appellant, Jennifer Lynn Henry, appeals from the judgment of

sentence imposed on March 17, 2016, following her non-jury conviction of

four counts of driving under the influence (DUI),1 possession of a small

amount of marijuana,2 possession of drug paraphernalia,3 operating a

vehicle without required financial responsibility,4 disregard for traffic lanes,5

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii), (iii) and d(2).
2
    35 P.S. § 780-113(a)(31)(i).
3
    35 P.S. § 780-113(a)(32).
4
    75 Pa.C.S.A. § 1786(f).
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and careless driving.6 Appellant’s counsel has filed a brief and a petition to

withdraw     under     Anders      v.   California,   386   U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the

appeal is wholly frivolous.        We affirm the judgment of sentence and grant

counsel’s request to withdraw.

        On May 9, 2015, at approximately 12:48 a.m., Pennsylvania State

Trooper George Jones was on routine patrol in Adams County when he saw a

car, later determined to be driven by Appellant, make an abrupt swerve.

(See N.T. Suppression Hearing, 10/19/15, at 5-9, 11). Trooper Jones had

received training and certification in detecting intoxicated drivers and had

arrested approximately seventy drivers for DUI. (See id. at 6-7). Knowing

that such abrupt swerves were a sign of impairment, Trooper Jones

attempted to close the gap between himself and Appellant’s vehicle to

observe her driving behavior. (See id. at 8). Trooper Jones witnessed the

vehicle weaving within the lane, drifting to and from the fog line and going

over the double yellow line. (See id. at 9-10). At that point, Trooper Jones

initiated a traffic stop, believing that the erratic driving was a sign of

intoxication. (See id. at 9-10).



                       _______________________
(Footnote Continued)
5
    75 Pa.C.S.A. § 3309(1).
6
    75 Pa.C.S.A. § 3714(a).



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      When Trooper Jones made contact with Appellant, he smelled

marijuana and observed her eyes were “glossy and bloodshot and I noticed

her tongue actually was green.” (Id. at 11). Trooper Jones administered

field sobriety tests to Appellant, who performed poorly. (See Stipulations of

Fact for January 12, 2016 Non-Jury Trial, 1/12/16, at 2).           Appellant

consented to a search of her vehicle, and in her purse, which was on the

passenger seat, Trooper Jones found a smoking device with marijuana

residue, a baggie with a small amount of marijuana, and two cigarettes

laced with marijuana. (See id. at 2-3). Trooper Jones arrested Appellant

and transported her to the hospital for chemical testing; Appellant consented

to the chemical tests. (See id. at 3). Appellant’s blood tested positive for

Dihydrocodiene/Hydrocodol,      Diazepam,      Nordiazepam,       Alprazolam,

marijuana, Codeine, and Hydrocodone. (See id. at 4).

      On August 19, 2015, the Commonwealth filed a criminal information

charging Appellant with DUI and related offenses.         (See Information,

8/19/15, at unnumbered pages 1-2).        On September 23, 2015, Appellant

filed a motion to suppress. A hearing took place on October 19, 2015. At

issue at the hearing was whether Trooper Jones stopped Appellant on

suspicion of DUI, which only required reasonable suspicion to justify the stop

or for erratic driving, which required probable cause. (See N.T. Suppression

Hearing, 10/19/15, at 3-4). Trooper Jones testified throughout the hearing

that Appellant’s erratic driving led him to believe that she was driving under


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the influence.    (See id. at 8, 10, 18, 21-22).               However, on cross-

examination, Trooper Jones admitted that, in his written report, drafted on

the day of the incident, he did not state that he stopped her on suspicion of

DUI but rather for erratic driving. (See id. at 16-17).

      On October 23, 2015, the trial court denied Appellant’s motion to

suppress. The trial court specifically found that Trooper Jones had “pointed

to specific and articulable facts which led him to suspect that [Appellant

might] be driving under the influence of alcohol or controlled substances.”

(Opinion, 10/23/15, at 5).      The trial court found that Trooper Jones had

sufficient reasonable suspicion to justify the traffic stop.

      A stipulated bench trial took place on January 12, 2016.           The trial

court found Appellant guilty of DUI and the related offenses. (See Order,

1/12/16, filed 1/19/16, at 1).          Following receipt of a pre-sentence

investigation report, on March 17, 2016, the trial court sentenced Appellant

to an aggregate term of intermediate punishment of sixty months, with

ninety of those days on restrictive sanctions and the remainder on

restorative sanctions. (See Order, 3/17/16, at 2).

      On March 22, 2016, Appellant filed a post-sentence motion, arguing

that the trial court should have applied the probable cause standard rather

than the reasonable suspicion standard to the motor vehicle stop and that

the evidence was insufficient to show probable cause to justify the stop of

Appellant’s motor vehicle. (See Appellant’s Post-Sentence Motion, 3/22/16,


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at unnumbered pages 2-3). The trial court denied the motion on March 24,

2016.

        The instant, timely appeal followed. On April 4, 2016, the trial court

ordered Appellant to file a concise statement of errors complained of on

appeal. See Pa.R.A.P. 1925(b). On April 22, 2016, Appellant filed a timely

Rule 1925(b) statement. See id. On May 3, 2016, the trial court filed an

opinion. See Pa.R.A.P. 1925(a).

        On June 24, 2016, counsel filed a motion to withdraw in this Court.

Appellant has not filed a response to counsel’s motion.

        On appeal, the Anders brief raises the following questions for our

review:

        Whether the [trial c]ourt abused its discretion in applying
        reasonable suspicion instead of probable cause as the requisite
        standard to the stop and therefore finding the stop to be valid?

        Whether    the    [trial  c]ourt   abused     its   discretion  in
        misappropriating the weight of the evidence in favor of the
        testimony by the officer, five months after the incident, over the
        police report, which was filed contemporaneously to the traffic
        stop?

(Anders Brief, at 6).

        Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

appeal on the basis that the appeal is frivolous must:


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     . . . (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. When we receive an Anders brief, we first rule on

the petition to withdraw, and then review the merits of the underlying

issues. See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super.

2010).   In addition, “[p]art and parcel of Anders is our Court’s duty to

review the record to insure no issues of arguable merit have been missed or

misstated.”   Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super.

2006).

     In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, he has petitioned this

Court to withdraw because he found “. . . no merit in any actual or potential

issues and is hereby certifying that the appeal is frivolous.”   (Petition to

Withdraw as Counsel, 6/24/16, at 14). In addition, after his review of the

record, counsel filed a brief with this Court that provides a summary of the

procedural history and facts with some citations to the record, refers to any

facts or legal theories that arguably support the appeal, and explains why he

believes the appeal is frivolous. (See Anders Brief, at 7-11). Lastly, he has

attached, as an exhibit to his brief, a copy of the letter sent to Appellant

giving her notice of her rights, and including a copy of the Anders brief and

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the petition.   (See id., at Appendix E); see also Commonwealth v.

Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005).          As noted above,

Appellant has not responded.     Because counsel has substantially complied

with the dictates of Anders, Santiago, and Millisock, we will examine the

issues set forth in the Anders brief. See Garang, supra at 240-41.

      Both of the issues raised in the Anders brief concern the denial of

Appellant’s motion to suppress.    When we review a ruling on a motion to

suppress,   “[w]e   must    determine   whether   the   record   supports   the

suppression court’s factual findings and the legitimacy of the inferences and

legal conclusions drawn from these findings.” Commonwealth v. Holton,

906 A.2d 1246, 1249 (Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa.

2007) (citation omitted).    Because the suppression court in the instant

matter found for the prosecution, we will consider only the testimony of the

prosecution’s witnesses and any uncontradicted evidence supplied by

Appellant. See id. If the evidence supports the suppression court’s factual

findings, we can reverse only if there is a mistake in the legal conclusions

drawn by the suppression court. See id.

      The Anders brief first claims that the trial court erred in applying the

reasonable suspicion standard, rather than the more stringent probable

cause standard to the stop of Appellant’s vehicle. (See Anders Brief, at 9).

We disagree.




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      In Pennsylvania, the authority that addresses the requisite cause for a

traffic stop is statutory; we find it at 75 Pa.C.S.A. § 6308(b), which

provides:

      (b) Authority of police officer.—Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers
      or has reasonable suspicion that a violation of this title is
      occurring or has occurred, he may stop a vehicle, upon request
      or signal, for the purpose of checking the vehicle’s registration,
      proof of financial responsibility, vehicle identification number or
      engine number or the driver’s license, or to secure such other
      information as the officer may reasonably believe to be
      necessary to enforce the provisions of this title.

Id. This Court has further stated:

            [W]hen considering whether reasonable suspicion or
      probable cause is required constitutionally to make a vehicle
      stop, the nature of the violation has to be considered. If it is not
      necessary to stop the vehicle to establish that a violation of the
      Vehicle Code has occurred, an officer must possess probable
      cause to stop the vehicle. Where a violation is suspected, but a
      stop is necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015); see also

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc), appeal denied, 25 A.3d 327 (Pa. 2011) (holding police officer must

have probable cause to justify stop of vehicle when investigation subsequent

to stop serves no “investigatory purpose relevant to the suspected

violation”).

      Here, Trooper Jones specifically testified that he saw Appellant’s

vehicle make an “abrupt swerve”, and based upon his training and


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experience, he was aware that such abrupt swerves “are indicative” of

impaired driving.   (N.T. Suppression Hearing, 10/19/15, at 6).        Therefore,

Trooper Jones followed Appellant’s vehicle. (See id. at 8). While observing

the vehicle, Trooper Jones saw Appellant weaving within the lane, riding the

fog line, and crossing over the double yellow line.         (See id. at 9-10).

Trooper Jones stated that based upon his training and experience, these

were all signs of possible intoxication or impairment. (See id. at 10). He

reiterated that the totality of these driving behaviors, all signs of possible

intoxication, led him to initiate the motor vehicle stop.    (See id.).    Thus,

Trooper Jones was able to state specific and articulable facts indicating that

Appellant might be driving under the influence and therefore, further

investigation was required. See Commonwealth v. Sands, 887 A.2d 261,

271-72 (Pa. Super. 2005). Accordingly, the trial court did not err in holding

that the Commonwealth was only required to prove reasonable suspicion and

not probable cause to stop Appellant’s motor vehicle.        See id.    The first

issue does not merit relief.

      In its second issue, the Anders brief challenges the weight of evidence

at the suppression hearing, alleging that the trial court erred in crediting the

testimony of Trooper Jones rather than his written report, which did not

mention DUI, and which he wrote on the same day as the incident. (See

Anders Brief, at 10). However, Appellant has not preserved this claim for

our review.


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      We have long held that this Court cannot consider, in the first

instance, a claim that the verdict is against the weight of the evidence. See

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,

while Appellant did file a post-sentence motion, she challenged the

sufficiency of the evidence, not the weight. (See Appellant’s Post-Sentence

Motion, 3/22/16, at unnumbered page 3). Thus, the issue is not preserved

for our review. See Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa.

Super. 2003).

      Moreover, even if we were to address the merits of the weight of the

evidence claim, it would fail.

      Our scope and standard of review of a weight of the evidence claim is

as follows:

            The finder of fact is the exclusive judge of the weight of
      the evidence as the fact finder is free to believe all, part, or none
      of the evidence presented and determines the credibility of the
      witnesses.

             As an appellate court, we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when the figure of Justice totters on her
      pedestal, or when the jury’s verdict, at the time of its rendition,
      causes the trial judge to lose his breath, temporarily, and causes
      him to almost fall from the bench, then it is truly shocking to the
      judicial conscience.

            Furthermore, where the trial court has ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether

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      the trial court palpably abused its discretion in ruling on the
      weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted).        “Thus, the trial

court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation

omitted).

      In its Rule 1925(a) opinion, the trial court explained that as the finder

of fact, it “[was] free to believe or disbelieve all, part or none of the

testimony. . . .” and it chose to credit Trooper Jones’ testimony. (Trial Court

Opinion, 5/03/16, at 5); see Commonwealth v. Griscavage, 517 A.2d

1256, 1259 (Pa. 1986).        “[I]t is for the fact-finder to make credibility

determinations, and the finder of fact may believe all, part, or none of a

witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.

Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted).

This Court cannot substitute our judgment for that of the trier of fact. See

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (2014). This issue does not merit relief.

      Appellant’s issues lack merit.      Further, this Court has conducted an

independent review of the record as required by Anders and Santiago and

finds that no meritorious issues exist.




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      Judgment of sentence affirmed.    Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2016




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