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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LATONYA GIBSON

                            Appellant               No. 2212 MDA 2013


            Appeal from the Judgment of Sentence November 1, 2013
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003010-2013


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 24, 2015

       Latonya Gibson appeals from the judgment of sentence imposed on

November 1, 2013, in the Court of Common Pleas of Berks County, made

final by the denial of post-sentence motions on November 18, 2013.           On

October 22, 2013, the trial court, sitting without a jury, convicted Gibson of

driving under the influence of alcohol (“DUI”) (incapable of safe driving –

first offense), DUI (imbibed .16% or higher), accidents involving damage to

attended vehicle or property, and one-way roadways and rotary traffic

islands.1    Contemporaneous with this appeal, counsel for Gibson filed a

petition to withdraw from representation pursuant to Anders v. California,

____________________________________________


1
    75 Pa.C.S. §§ 3802(a)(1), 3802(c), 3743(a), and 3308(b), respectively.
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386 U.S. 738 (1967),2 and Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009).     The issues identified in the Anders brief are sufficiency and

weight challenges.        After a thorough review of the submissions by the

parties, the certified record, and relevant law, we grant counsel’s motion and

affirm the judgment of sentence.

       The trial court set forth the factual history as follows:

             On April 13, 2013[,] at approximately 11:06 P.M., Officer
       Bradley T. McClure was dispatched to the 500 block of Avenue A
       for a hit and run in progress. When Officer McClure arrived at
       the location, the victim, Michael Mieczkowski told the Officer that
       the person who struck him entered a residence on the block.
       The residence was 641 Avenue A, and the victim described the
       driver as a black woman wearing a shawl. Officer McClure
       knocked on the door and saw the woman matching the
       description sitting on the couch. Officer McClure asked the
       Defendant (Latonya Gibson) to come outside. When [Gibson]
       came outside, the Officer noticed a strong smell of alcohol on her
       immediately.

             Officer McClure asked [Gibson] if she had been driving a
       car that night. [Gibson] replied and said “yes.” He asked her
       how long ago did [she] drive. [Gibson] said about 30 minutes
       ago. Officer McClure asked [Gibson] for identification, she had
       no identification on her and would not give her name or address.
       [Gibson] asked what was the problem and Officer McClure
       explained to her that she was suspected of being a driver in a hit
       [and] run accident. [Gibson] denied being the driver. Officer
       McClure advised [her] to speak the truth during his
       investigation. [Gibson] complied and gave the Officer her name
       and address.

            Officer McClure then proceeded to converse with the victim
       about the accident and to confirm the identity of the driver. Mr.
       Mieczkowski (victim) explained the accident in detail of how the
____________________________________________


2
    See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).



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       Chevy Blazer struck a parked car and then continued to hit the
       front of his vehicle. Mr. Mieczkowski decided to follow the
       vehicle. During his pursuit, Mr. Mieczkowski watched the Chevy
       Blazer park on the 500 block of Avenue A and saw [Gibson] exit
       the vehicle to enter a residence. He then called the police and
       waited [for] Officer McClure to arrive.

              Officer McClure went back to [Gibson] and asked her if she
       owned a vehicle. She said yes and showed Officer McClure
       where her vehicle was located. Officer McClure observed a
       Chevy Blazer with damage and paint transfer along the
       passenger side of the car.        During the conversation with
       [Gibson], Officer McClure testified that she seemed very
       confused and uncooperative. After some time, she agreed to
       perform the [standardized field sobriety tests]. [Gibson] failed
       all tests given to her. [Gibson] was arrested for DUI and was
       taken to the DUI center. [Gibson] was read the implied consent
       form and agreed to have her blood drawn at 12:31 A.M.
       [Gibson]’s blood alcohol level was 0.263%.

Trial Court Opinion, 4/23/2014, at 2-3.

       As noted above, a bench trial was held on October 18, 2013, and

continued on October 22, 2013. The court found Gibson guilty on all four

counts.    On November 1, 2013, the court imposed a mandatory minimum

sentence of 72 hours to 6 months’ incarceration for the DUI (imbibed .16%

or higher) conviction, plus a concurrent term of one year of probation for the

accidents involving damage to attended vehicle or property offense.3 Gibson




____________________________________________


3
   The court did not impose any further sentences on the remaining
convictions.




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filed post-sentence motions, which were denied following a hearing on

November 18, 2013. This appeal followed.4

       Preliminarily, we must address counsel’s petition to withdraw. When

counsel files a petition to withdraw and accompanying Anders brief, we

must first examine the request to withdraw before addressing any of the

substantive issues raised on appeal.              Commonwealth v. Goodwin, 928

A.2d 287, 290 (Pa. Super. 2007).               Here, our review of the record reveals

that counsel has substantially complied with the requirements for withdrawal

outlined in Anders, supra, and its progeny.                Specifically, counsel filed a

petition for leave to withdraw, in which she states her belief that the appeal

is   frivolous,   filed   an    Anders         brief   pursuant   to   the   dictates   of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a

copy of the Anders brief to Gibson, and advised Gibson of her right to retain

new counsel or proceed pro se. Commonwealth v. Ferguson, 761 A.2d

613, 616 (Pa. Super. 2000). Moreover, our review of the record reveals no

additional correspondence from Gibson.                 Accordingly, we will proceed to

examine the record and make an independent determination of whether the

appeal is wholly frivolous.
____________________________________________


4
   On January 15, 2014, the court ordered Gibson to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Gibson’s
counsel filed a statement of intent to file an Anders brief in lieu of a concise
statement. See Pa.R.A.P. 1925(c)(4). The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on April 23, 2014, and an amended opinion
on April 25, 2014.



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      The first issue identified in the Anders brief is whether the evidence

was sufficient to support all of Gibson’s convictions.    Anders Brief at 14.

With respect to her DUI convictions, Gibson claims the Commonwealth failed

to prove that “(i) that she drove, operated or was in actual physical control

of the movement of the Blazer, and (ii) that she consumed a sufficient

amount of alcohol prior to operating her vehicle.” Id. at 15. Moreover, she

states the Commonwealth “relied on Mieczkowski’s description of the alleged

driver’s attire, behavior, and actions during and following the alleged

accident to establish that Gibson drove her vehicle and was intoxicated

before she entered her friend’s home,” but claims this evidence “was

insufficient to establish that she drove the vehicle after imbibing a sufficient

amount of alcohol to either render her incapable of safe driving, or to have

caused her blood-alcohol concentration to be at least 0.16 percent within

two hours after she drove.”    Id. at 15-16. With respect to the remaining

crimes, Gibson again argues the Commonwealth failed to establish her

identity as the driver of the Blazer. She states “Mieczkowski’s observation

that the driver of the vehicle wore dark-colored pants was disaffirmed by

Officer McClure’s observation, and City of Reading Central Processing

photographs, that Gibson wore light-colored pants.” Id. at 17.

      Our review of a challenge to the sufficiency of the evidence is well-

established:

      [W]e evaluate the record in the light most favorable to the
      Commonwealth as the verdict winner, giving the prosecution the

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      benefit of all reasonable inferences to be drawn from the
      evidence. “Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt.”        However, the Commonwealth need not
      establish guilt to a mathematical certainty, and it may sustain its
      burden by means of wholly circumstantial evidence. Moreover,
      this Court may not substitute its judgment for that of the
      factfinder, and where the record contains support for the
      convictions, they may not be disturbed. Lastly, we note that the
      finder of fact is free to believe some, all, or none of the evidence
      presented.

Commonwealth v. Taylor, 33 A.3d 1283, 1287-1288 (Pa. Super. 2011)

(internal citations omitted), appeal denied, 47 A.3d 847 (Pa. 2012).

      Gibson’s argument focuses largely on an allegation that the evidence

failed to identify her as the driver of the car in question. To this extent, we

are also guided by the following:

      “[E]vidence of identification need not be positive and certain to
      sustain a conviction.” Although common items of clothing and
      general physical characteristics are usually insufficient to support
      a conviction, such evidence can be used as other circumstances
      to establish the identity of a perpetrator.             Out-of-court
      identifications are relevant to our review of sufficiency of the
      evidence claims, particularly when they are given without
      hesitation shortly after the crime while memories were fresh.
      Given additional evidentiary circumstances, “any indefiniteness
      and uncertainty in the identification testimony goes to its
      weight.”

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)

(internal citations omitted), appeal denied, 54 A.3d 348 (Pa. 2012).

      The DUI crimes are codified, respectively, at 75 Pa.C.S. § 3802(a)(1)

and (c). In pertinent part, these subsections provide:

      (a) General impairment.


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          (1) 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.

                                               …

       (c) Highest rate of alcohol. -- 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 alcohol concentration in the individual’s blood or breath is
       0.16% or higher within two hours after the individual has driven,
       operated or been in actual physical control of the movement of
       the vehicle.

75 Pa.C.S § 3802.5

____________________________________________


5
   In Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), appeal
denied, 29 A.3d 797 (Pa. 2010), a panel of this Court explained the element
of “driv[ing], operat[ing] or be[ing] in actual physical control,” as follows:

       “The term ‘operate’ requires evidence of actual physical control
       of either the machinery of the motor vehicle or the management
       of the vehicle’s movement, but not evidence that the vehicle was
       in motion.” Commonwealth v. Johnson, 833 A.2d 260, 263
       (Pa.Super. 2003). “Our precedent indicates that a combination
       of the following factors is required in determining whether a
       person had ‘actual physical control’ of an automobile: the motor
       running, the location of the vehicle, and additional evidence
       showing that the defendant had driven the vehicle.”
       Commonwealth v. Woodruff, 447 Pa.Super. 222, 668 A.2d
       1158, 1161 (1995). A determination of actual physical control of
       a vehicle is based upon the totality of the circumstances.
       [Commonwealth v.] Williams, [871 A.2d 254], 259
       [(Pa.Super. 2005)]. “The Commonwealth can establish through
       wholly circumstantial evidence that a defendant was driving,
       operating or in actual physical control of a motor vehicle.”
       Johnson, supra at 263.
(Footnote Continued Next Page)


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      The crime of accidents involving damage to attended vehicle or

property is defined as follows:

      (a) General rule. -- The driver of any vehicle involved in an
      accident resulting only in damage to a vehicle or other property
      which is driven or attended by any person shall immediately stop
      the vehicle at the scene of the accident or as close thereto as
      possible but shall forthwith return to and in every event shall
      remain at the scene of the accident until he has fulfilled the
      requirements of section 3744 (relating to duty to give
      information and render aid). Every stop shall be made without
      obstructing traffic more than is necessary.

75 Pa.C.S. § 3743(a). Lastly, a violation of one-way roadways and rotary

traffic islands is set forth as follows:

      (a) Establishment and marking. -- The department and local
      authorities with respect to highways under their respective
      jurisdictions may designate any highway, roadway, part of a
      roadway or specific lanes upon which vehicular traffic shall
      proceed in one direction at all or such times as shall be indicated
      by official traffic-control devices.

      (b) Driving on one-way roadway. -- Upon a roadway designated
      for one-way traffic, a vehicle shall be driven only in the direction
      designated at all or such times as shall be indicated by official
      traffic-control devices.

75 Pa.C.S. § 3308.

      Here, the trial court concisely stated that it found the Commonwealth

had “presented sufficient evidence to establish guilt beyond a reasonable

doubt with respect to all counts.” Trial Court Opinion, 4/23/2014, at 5.


                       _______________________
(Footnote Continued)


Id. at 1246 (citation omitted).



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      Our review of the record reveals ample support for the trial court’s

conclusion. At the bench trial, the victim, Mieczkowski, testified that he was

driving on Mineral Spring Road, Berks County, Pennsylvania, when he

observed a blue Chevy Blazer coming upon him “very rapidly.”              N.T.,

10/18/2013, at 5. He then moved into the right lane of traffic, let the Blazer

pass him, and began to follow the vehicle.       He testified that the driver,

subsequently identified as Gibson, was operating the Blazer “erratically,” in

which“[t]here were two or three incidents where cars were being passed at,

nearly forced into the parked cars.” Id. at 7. Mieczkowski stated he then

“heard the sound of a collision, and [he] saw parts coming down the street.”

Id.   He observed the Blazer’s right side strike several parked cars.       Id.

Mieczkowski began to take down the license plate number and called 9-1-1.

He testified the driver then turned right on 4th Street, in the wrong direction.

Id. at 8. Shortly after realizing that he or she was traveling the wrong way,

the Blazer then began to back up and hit in the front end of Mieczkowski’s

car, causing $530.00 worth of damage. Id. Mieczkowski stated the Blazer

then turned right on 3rd Street, continuing at a high rate of speed, turning

left onto Walnut Street, which again was going in the wrong direction, and

eventually making its way to the Glenside Homes apartment complex. Id.

8-9. Mieczkowski observed the following: (1) the Blazer parked on the left

hand side of Avenue A; (2) a group of four to five people stood by the car;

and (3) after ten minutes, a woman, Gibson, got out of the driver’s side of


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the vehicle. Id. at 10. He did not see anyone else get in or come out of the

car. Id. at 11.   Mieczkowski testified Gibson went into an apartment and

she “was staggering and she had fallen down once or twice.” Id. at 12. He

stated she was wearing a “shawl” top, jeans, and a bandana. Id. at 10, 13.

Mieczkowski then waited for the police to respond, which took approximately

20 minutes. Id. at 24.

     Officer Bradley McClure of the Reading City Police Department testified

that he arrived at the scene, and he quickly spoke with Mieczkowski, who

described the driver and said that she was wearing a shawl.       Id. at 29.

Mieczkowski then informed the officer that Gibson went into a house and

indicated that it was “#461.” Id. The officer proceeded to that residence,

knocked on the door, and went inside. He saw Gibson seated on the couch,

wearing a shawl and jeans.    Id. at 30.    Both the officer and Gibson then

went outside, and he informed Gibson that he was investigating a “hit and

run.” Id. at 31. Officer McClure testified Gibson said “she had driven a car

30 minutes previously,” but denied involvement in any hit and run. Id. at

31. He stated he asked for her name and Gibson initially did not want to

give him that information, but later cooperated after he informed her that it

was in her best interests to do so.   Id.   The officer observed that Gibson

“smelled very badly of alcohol and her speech, like some of the things she

was saying, her speech was all over the place.”     Id.   He also noticed her

eyes were bloodshot. Id.


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       Officer McClure then went to interview Mieczkowski.       After speaking

with the victim, he asked Gibson to show him where her car was parked.

Id. at 32. She took him to the car, which was a dark-colored Chevy Blazer.

Id. at 33. The officer began to walk around the vehicle and when he looked

at the passenger side, he “noticed there w[ere] minor dents and scratches

and there was paint transfer on the passenger side. And also the side-view

mirror was broken and hanging there by … the wires.” Id. at 34. Officer

McClure asked Gibson when she purchased the car and was it in good

condition when she got it.         Gibson replied that she bought the car three

months earlier, and that it was in “good condition.” Id. When the officer

showed her the passenger side, Gibson said that it “was like that when [she]

bought it.” Id. Officer McClure testified that during this time, he “noticed

when she walking[,] she was swaying. She [wa]s stumbling around.” Id.

The officer then had Gibson perform several field sobriety tests, in which she

failed the “finger-to-nose” and “walk-and-turn” tests. Id. at 36.6 Based on

the circumstances, Officer McClure testified he suspected Gibson was under

the influence of alcohol and arrested her. Id. at 37-38.

       The parties stipulated that after her arrest, Gibson was taken to the

hospital for her blood to be analyzed at 12:31 a.m. on April 14, 2013. Her


____________________________________________


6
   Contrary to the trial court’s indication in its factual history, the officer
testified Gibson did pass the “one-legged stand” test. Id. at 37.



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blood alcohol content (“BAC”) was determined to be 0.263. Id. at 40; see

Commonwealth’s Exhibit 1, Stipulation, 10/18/2013, at 1-2.7

       Gibson also took the stand at trial.         She testified that she owned a

green Chevy Blazer. N.T., 10/22/2013, at 15-16. She stated that she was

not driving her car on the night in question and there was a “possibility” that

her friend, Jasmine Rivera, was driving the Blazer that night.             Id. at 16.

Gibson testified that she had been at her girlfriend’s house on Avenue A for

approximately an hour before Office McClure arrived, and that is when she

had two to three mixed drinks. Id. at 18.8

       Viewing the record in the light most favorable to the Commonwealth

as the verdict winner, there was sufficient evidence to support Gibson’s

convictions. Mieczkowski made a positive and unequivocal identification of

Gibson as the driver of the Blazer.            The trial court found Mieczkowski’s

testimony credible, as was its prerogative as fact finder.           See Taylor, 33

A.3d at 1287-1288; see also Commonwealth v. Patterson, 940 A.2d

493,   502     (Pa.   Super.    2007)     (a   positive   and   without   qualification

____________________________________________


7
   The officer also went to Chestnut Street, where Mieczkowski had stated
that he heard a collision and saw parts coming down the street. N.T.,
10/22/2013, at 8. The officer testified he did not observe any parts in the
street. Id.
8
   Counsel for Gibson introduced into evidence a picture of Gibson allegedly
taken on the night of the accident. Id. at 20. In the picture, she wore
“[w]hite saggy pants,” “a red tank top and a black and white shawl.” Id.
There was no date on the picture. Id.



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identification by one witness is sufficient for conviction). Moreover, Gibson

was observed hitting several parked cars, going the wrong way down several

streets, and backing into Mieczkowski’s car and damaging it.                When

Mieczkowski followed Gibson to her final destination, Gibson was in the

driver’s seat and there were no signs of another person in the Blazer. After

Gibson exited her car, Mieczkowski saw that she exhibited signs of

intoxication. When Officer McClure arrived twenty minutes later, Gibson still

displayed signs of intoxication. A blood test was taken within two hours of

driving, as required by statute, and Gibson was determined to have a BAC of

0.263%. The trial court was free to reject Gibson’s account of the night in

question, in which she stated she had not been driving that night and the

damage to her car was there previously. See Taylor, supra. Therefore, we

conclude there was sufficient evidence to establish that Gibson was, indeed,

the driver of the Blazer that damaged Mieczkowski’s car, she “operated” or

had “actual physical control” of the car, and she had imbibed a sufficient

amount of alcohol that rendered her incapable of safe driving. Accordingly,

her sufficiency argument fails.

       The second issue raised in the Anders brief is that the verdict was

against the weight of the evidence.9           Anders Brief at 19.   Gibson argues

“Mieczkowski’s testimony was incredible with regard to material elements of
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9
  Gibson properly preserved the weight claim in a post-sentence motion.
See Pa.R.Crim.P. 607.



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the crimes charged, including the identification of Gibson as the driver of the

vehicle and the timeline of her intoxication.”             Id. at 20.      She further

contends “that with regard to these elements, Officer’s McClure’s own

observations did not corroborate any of Mieczkowski’s otherwise incredible

testimony.” Id. She points to the following: (1) Mieczkowski’s description

of Gibson wearing dark-colored jeans was disaffirmed by the photograph of

her   wearing   light-colored   pants    on      the   night   of   the   incident;   (2)

Mieczkowski’s testimony that he heard loud bangs and saw parts coming

down a street while Gibson was driving was contradicted by the officer’s

testimony that he went to that street and did not see any damage or receive

any accident reports; and (3) Gibson’s own testimony, in which she stated

she had consumed several alcoholic beverages at her friend’s house one

hour prior to the officer arriving at the home, and that her Blazer already

had damage to the side-view mirror and side-panel when she purchased the

car. Id. at 20-21.

      It is well-settled that when reviewing a weight of the evidence claim,

      an appellate court does not substitute its judgment for the finder
      of fact and consider the underlying question of whether the
      verdict is against the weight of the evidence, but, rather,
      determines only whether the trial court abused its discretion in
      making its determination.

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

134 S. Ct. 1792 (U.S. 2014).




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     Here, Gibson’s weight of the evidence claim is substantially similar to

her sufficiency challenge.   Gibson asks this Court to reweigh the evidence

and give the greatest weight to her own testimony. We decline to do so. As

our Supreme Court has made clear, we may not reweigh the evidence and

substitute our judgment for the trial court’s decision.   See Lyons, supra.

Moreover, Gibson’s argument fails to explain in what way the trial court

abused its discretion in denying her weight claim. We conclude the court did

not abuse its discretion in denying Gibson a new trial based on her weight of

the evidence claim. Therefore, Gibson’s weight claim fails.

     As mandated by law, we have independently reviewed the record and

agree with counsel that the appeal is wholly frivolous. See Commonwealth

v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).             For the foregoing

reasons, we grant counsel’s motion to withdraw from representation and

affirm the judgment of sentence.

     Judgment of sentence affirmed.          Counsel’s motion to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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