J-S28027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHEYENNE NICOLE DITZLER                    :
                                               :
                       Appellant               :   No. 233 MDA 2020

       Appeal from the Judgment of Sentence Entered January 13, 2020
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0001265-2018


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

MEMORANDUM BY OLSON, J.:                                  FILED JULY 15, 2020

       Appellant, Cheyenne Nicole Ditzler, appeals from the judgment of

sentence entered on January 13, 2020, following her bench trial convictions

for access device issued to another who did not authorize use and theft by

unlawful taking.1 On this direct appeal, Appellant’s court-appointed counsel

has filed both a petition for leave to withdraw as counsel and an accompanying

brief pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that

Appellant’s counsel has complied with the procedural requirements necessary

to withdraw. Moreover, after independently reviewing the record, we conclude

that the instant appeal is wholly frivolous. We, therefore, grant counsel’s

petition for leave to withdraw and affirm Appellant’s judgment of sentence.

____________________________________________


1   18 Pa.C.S.A. §§ 4106(a)(1)(ii) and 3921(a), respectively.
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      We briefly summarize the facts and procedural history of this case as

follows.   In December 2017, Appellant and her boyfriend, Daniel Trimmer

(Trimmer) were unemployed and homeless. They moved into the home of

Appellant’s mother, Cheryl Ditzler (Mother).       On a single occasion, on

December 4, 2017, Mother authorized Appellant to use her debit card to

withdraw $20.00 from Mother’s savings account to buy personal items.

Mother gave Appellant her personal identification number and her bankcard.

Mother never gave her personal identification number to anyone else.

Appellant returned the card to Mother after the transaction. In late December

2017, Mother noticed that $620.00 was missing from her savings account.

Around the same time, Mother saw Appellant bring expensive items, such as

electronics and new shoes, into her residence. She reported the missing

money to the bank and police. When Mother returned from making a report

to police, Trimmer confessed to taking the money.            In a subsequent

investigation, police recovered video surveillance photos of Trimmer making

seven withdrawals from different banks. Police also recovered one photograph

of Appellant receiving cash. At trial, Trimmer testified that he took the money

so that he and Appellant could buy new shoes and drugs. He further testified

that Appellant was with him each time he used Mother’s bankcard.

      Following a bench trial, on December 3, 2019, the trial court convicted

Appellant of the aforementioned charges.     The trial court held a sentencing

hearing on January 13, 2020. Ultimately, in an amended sentencing order

dated January 24, 2020, the trial court sentenced Appellant to 18 months of

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probation for theft by unlawful taking. The trial court further determined that

the conviction for access device issued to another who did not authorize use

merged for sentencing purposes. This timely appeal followed.2

       On appeal, the Anders brief raises a single claim:

           Whether the evidence at trial was insufficient to prove that
           Appellant committed the crimes of theft by unlawful taking
           and access device issued to another who did not authorize
           use.

Anders Brief at 4 (superfluous capitalization omitted).

       Before reviewing the merits of this appeal, this Court must first

determine whether appointed counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

       To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.         First, counsel must “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.”

Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which

counsel:

____________________________________________


2  Appellant filed a notice of appeal on February 2, 2020. On February 11,
2020, the trial court directed Appellant to file a concise statement of errors
complained on appeal pursuant to Pa.R.A.P. 1925(b). On March 3, 2020,
counsel for Appellant filed a statement of intent to file Anders/Santiago brief
in lieu of a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(c)(4). The trial court did not issue an opinion pursuant to Pa.R.A.P.
1925(a). On May 13, 2020, this Court received correspondence that the
Commonwealth did not intend to file an appellate brief.

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      (1) provide[s] a summary of the procedural history and facts, with
      citations to the record; (2) refer[s] to anything in the record that
      counsel believes arguably supports the appeal; (3) set[s] forth
      counsel’s conclusion that the appeal is frivolous; and (4) state[s]
      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.        Finally, counsel must furnish a copy of the

Anders brief to his or her client and advise the client “of [the client’s] right to

retain new counsel, proceed pro se or raise any additional points worthy of

this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.

Super. 2007).

      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of the issues raised by counsel. ... [T]his

review does not require this Court to act as counsel or otherwise advocate on

behalf of a party. Rather, it requires us only to conduct a review of the record

to ascertain if[,] on its face, there are non-frivolous issues that counsel,

intentionally or not, missed or misstated. We need not analyze those issues

of arguable merit; just identify them, deny the motion to withdraw, and order

counsel to analyze them.”). It is only when all of the procedural and


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substantive requirements are satisfied that counsel will be permitted to

withdraw.

       In the case at bar, counsel complied with all of the above procedural

obligations.3    We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous. Our review begins with the

claim Appellant raises in her brief.

       Appellant claims that the Commonwealth failed to present sufficient

evidence to support her convictions. Anders Brief at 9. More specifically,

Appellant contends that Mother and Trimmer were not credible and that her

convictions “were based largely on circumstantial evidence.” Id.

       Our standard when reviewing the sufficiency of the evidence is

       whether the evidence at trial, and all reasonable inferences
       derived therefrom, when viewed in the light most favorable to the
       Commonwealth as verdict-winner, are sufficient to establish all
       elements of the offense beyond a reasonable doubt. We may not
       weigh the evidence or substitute our judgment for that of the
       fact-finder. Additionally, the evidence at trial need not preclude
       every possibility of innocence, and the fact-finder is free to resolve
       any doubts regarding a defendant's guilt 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. When
       evaluating the credibility and weight of the evidence, the
       fact-finder is free to believe all, part or none of the evidence. For
       purposes of our review under these principles, we must review the
       entire record and consider all of the evidence introduced.


____________________________________________


3 On April 21, 2020, this Court entered an order directing counsel to file an
application to withdraw, a letter advising Appellant of her right to retain new
counsel, proceed pro se or raise any additional points worthy of this Court’s
attention, and a copy of proof of service on Appellant. Counsel complied on
April 23, 2020. Appellant has not responded.

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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (citation

omitted). “In applying this standard, Pennsylvania courts acknowledge that

the Commonwealth may sustain its burden by means of wholly circumstantial

evidence.” Commonwealth v. Sexton, 222 A.3d 405, 416 (Pa. Super. 2019)

(citation and quotations omitted).

      A person commits access device fraud if she “uses an access device to

obtain or in an attempt to obtain property or services with knowledge that []

the access device was issued to another person who has not authorized its

use[.]” 18 Pa.C.S.A. § 4106(a)(1)(ii). “A person is guilty of theft [by unlawful

taking] if [s]he unlawfully takes, or exercises unlawful control over, movable

property of another with intent to deprive [them] thereof.”       18 Pa.C.S.A.

§ 3921(a).

      At trial, Mother testified that she gave Appellant her bankcard and

personal identification number to withdraw money to purchase personal items

a single time in early December 2017. N.T., 12/3/2019, at 27, 40-41. Mother

did not give the personal identification number to anyone but Appellant. Id.

Mother did not authorize Trimmer to use her bankcard or personal

identification number. Id. at 40. In the middle of December 2017, Mother

noticed a series of withdrawals from her savings account, totaling $620.00,

that she did not make nor authorize. Id. at 27. Mother testified that, during

that same time-period, Appellant and Trimmer brought “brand new shoes”

and a “PlayStation game” into her home. Id. at 30. Appellant and Trimmer

were both unemployed at the time. Id. at 29. Trimmer confessed to Mother

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that he took her money. Id. At trial, Trimmer admitted that he took Mother’s

bankcard and withdrew money without her authorization.            Id. at 45.    He

testified that Appellant accompanied him when he made the withdrawals. Id.

He stated that he subsequently used the money to purchase “sneakers and

drugs.” Id. at 45. Appellant testified at trial. She stated that she believed

Mother had given Trimmer authorization to use the bankcard. Id. at 55-56.

      Based upon our review of the certified record, we conclude that the

Commonwealth      presented     sufficient    evidence   to   support   Appellant’s

convictions. Appellant suggests that the evidence showed that Trimmer acted

alone. Appellant, however, was the only person who knew Mother’s personal

identification number, Appellant had access to Mother’s bankcard, and

Appellant accompanied Trimmer for each withdrawal. Moreover, Mother saw

Appellant with expensive new purchases, even though Appellant lacked

employment.     From this evidence, the trial court properly inferred that

Appellant, without authorization, obtained Mother’s property with an access

device and intended to deprive Mother of that property. Moreover, the trial

court was free to reject Appellant’s testimony that she thought Mother

authorized Trimmer to make withdrawals from Mother’s account. Based upon

the totality of the evidence, the Commonwealth proved that Appellant used

an access device to obtain Mother’s savings despite lack of authorization to do

so.   Appellant also unlawfully received Mother’s funds with the intent to

deprive her of same. As such, after independent consideration, we conclude

Appellant’s sufficiency claim is frivolous.

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      In addition, after an independent review of the entire record, we see

nothing that might arguably support this appeal. The appeal is, therefore,

wholly frivolous. Accordingly, we affirm Appellant’s judgment of sentence and

grant counsel’s petition for leave to withdraw.

      Petition for leave to withdraw appearance granted. Judgment of

sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2020




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