J-S35011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

ALAN B. MARTIN,

                             Appellant               No. 211 MDA 2018


      Appeal from the Judgment of Sentence Entered January 23, 2018
                In the Court of Common Pleas of York County
              Civil Division at No(s): CP-67-CR-0005288-2017


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 27, 2018

      Appellant, Alan B. Martin, appeals from the judgment of sentence of,

inter alia, six months’ probation, imposed after he was convicted of driving

under the influence of alcohol or controlled substance (DUI)–general

impairment, 75 Pa.C.S. § 3802(a)(1). On appeal, Appellant challenges the

sufficiency and weight of the evidence underlying his conviction. In addition,

Appellant’s counsel, Anthony J. Tambourino, Esq., seeks to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

      Attorney Tambourino summarizes the factual and procedural history of

this case as follows:
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     FACTUAL HISTORY

           Appellant … was charged with one count of DUI-[g]eneral
     [i]mpairment under 75 Pa.C.S. [§] 3801(a)(1) and [s]peeding
     under 75 Pa.C.S. § 3362(a)(3). These charges were based on an
     incident that occurred on June 8, 2017[,] at about 2:00 AM[,] in
     the southern end of York County, Pennsylvania within the
     Heidelberg/Manheim Townships area.

         Officer Dennis Brillhart, an officer with Southwestern Regional
     Police Department, was on traffic enforcement patrol working the
     5 PM to 5 AM shift on that day.1 He had parked in a Rutter’s
     convenience store parking lot on Seven Valleys Road and
     observed a Jeep Cherokee pass by going at [a] greater speed than
     the posted limit. He pulled out and pursued the Jeep, following
     [it] through several roads that had a 35 mph speed limit. He
     followed the Jeep for about three-quarters to a mile before it
     stopped. He estimated the vehicle was traveling between 60 and
     65 mph. The Jeep eventually turned into a trailer park on
     Messersmith Road and stopped outside a trailer. Officer Brillhart
     saw [Appellant] get out of the Jeep, so he got out of his patrol car
     and approached. He explained why he stopped [Appellant] and
     as he was talking to [Appellant], he observed bloodshot, glassy
     eyes, slurred speech, and unsteady gait. He observed [Appellant]
     was “wobbly” on his feet while standing and while walking around.
     He told [Appellant] he believed [Appellant] was under the
     influence of alcohol. He advised [Appellant] he was going to
     conduct field sobriety tests, and [Appellant] refused. Officer
     Brillhart asked [Appellant] if he had consumed any alcohol and
     [Appellant] replied “he had a couple earlier in the evening.”
     [Appellant] further explained “he was in York City investigating
     the Mayor of York. He said that the Mayor and his family are
     corrupt, and he is gathering intel on the Mayor and his family.”
     [Appellant] told Officer Brillhart he had met somebody at a bar in
     York that had “intel” on the Mayor.
        1 Officer Brillhart noted he had 27 years’ experience as a
        police officer. Over the years, he had obtained substantial
        training and education in DUI enforcement. His training
        included a “degree” as a[ Horizontal Gaze Nystagmus
        (HGN)] practitioner, multiple schools to learn how to spot
        impaired driving and the effects of alcohol on individuals.
        He further had conducted 700-800 DUI investigations in his
        27[-]year career.


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        After [Appellant] refused to do the field sobriety tests, he
     began to walk into his house, but Officer Brillhart stopped him.
     He asked [Appellant] for his license and registration[,] and
     [Appellant] “fumbled through his wallet.” Officer Brillhart then
     placed [Appellant] under arrest and put him in handcuffs.
     [Appellant] told him he had a weak bladder and urinated himself.

        At trial, Officer Brillhart opined that [Appellant] was incapable
     of safely driving an automobile. He based that on his training and
     experience in DUI investigations and his observations of
     [Appellant]. He considered [Appellant’s] bloodshot, glassy eyes,
     the strong odor of alcohol, his unsteady gait[,] and the slurred
     speech in making his determination. He further did not feel
     comfortable letting [Appellant] drive away from the scene of the
     stop.2
        2   Though [Appellant] was, as mentioned, already home.

         [Appellant] testified in his own defense and did confirm that he
     had been in a bar in York that evening to meet a friend. He
     confirmed he was at the bar that evening, however[,] he indicated
     it was to obtain information on his son’s murder. The person he
     met with told him to “watch his back” because he might be
     “stepping on somebody’s toes.” On the way home, he saw a car
     coming up behind him, but it did[ not] look like it had lights on or
     they were dim. [Appellant] testified that scared him.

        He testified that he does[ not] drive fast because he is “never
     in a hurry.” Once he pulled into his driveway, he realized it was
     the police following him, so he planned to explain what was going
     on. Once he parked, he began to get out of the car and realized
     he had a plastic vial with whiskey in it. The person he saw at the
     bar bought him two shots, but he did[ not] drink the one.3 The
     person he was with told him not to leave the second shot, so he
     put it in the vial.
        3  On cross-examination,        [Appellant]   said   it   was
        Jägermeister, not whiskey.

        When [Appellant] realized he had the vial of whiskey, he
     thought he was going to get in trouble for an “open container,” so
     he drank what was in the vial and threw it in the back of his Jeep.4
     [Appellant] then tried to reach his cane before he got out, but it
     had fallen between the seats. However, he could not reach it, and
     that is why he was unsteady when he got of his Jeep. He had an


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      accident many years prior, and his Achilles[] tendons “don't
      work.”
         4 Upon questioning by the court, Officer Brillhart testified
         that [Appellant] never told him that he had just consumed
         alcohol before getting out of the vehicle[.]

         When [Appellant] spoke to Officer Brillhart, he admitted he had
      been drinking. He testified that he had, however, only had a “sip”
      at the bar and drank the rest when he pulled in his driveway.
      When asked if he was intoxicated while he drove, [Appellant]
      testified “I would never do it. Never.”

         At the conclusion of testimony, the trial court found Officer
      Brillhart’s testimony to be credible and [that it] “sufficiently
      supports the officer’s opinion that [Appellant] was intoxicated and
      not capable of safe driving.” The trial court found [Appellant’s]
      testimony to be “incredible, particularly the testimony regarding
      the pill bottle full of Jägermeister and that [Appellant,] with a
      police officer sitting behind him[,] consumed [it] before talking to
      the police officer after getting out of his car.” The trial court, thus,
      found [Appellant] guilty of DUI-[i]ncapable of [s]afe [d]riving.
      [Appellant] waived his [pre-sentence investigation,] and the trial
      court sentenced him to 6 months’ probation, [a] $300 fine,
      standard DUI conditions, and costs.

      PROCEDURAL HISTORY

         On June 13, 2017, Southwest Regional Police Department
      charged [Appellant] with DUI-[g]eneral [i]mpairment (1st Off.)
      and Speeding.5 [Appellant] applied and qualified for a public
      defender[,] and Attorney Joshua Neiderhiser was assigned to his
      case. On January 23, 2018, the Honorable Gregory M. Snyder
      found [Appellant] guilty at a bench trial of … DUI.           The
      Commonwealth withdrew the speeding charge. On January 23,
      2018, the trial court imposed [a] sentence of 6 months’ probation,
      costs, and fines.
         5 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S. § 3362(a)(3),
         respectively.

         [Appellant] requested an appeal. Undersigned counsel was
      assigned and entered his appearance on January 30, 2018….

Anders Brief at 6-11 (internal citations omitted).



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      Appellant timely filed his notice of appeal on January 30, 2018.      On

January 31, 2018, the trial court ordered Appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he

timely complied. In his Rule 1925(b) statement, Appellant raises the following

issues:
      1. The Commonwealth failed to present sufficient evidence in
         order to convict Appellant beyond a reasonable doubt of DUI-
         [g]eneral [i]mpairment, because the Commonwealth failed to
         prove Appellant was incapable of safe driving.

      2. The guilty verdict was against the weight of the evidence
         because the evidence presented demonstrated that Appellant
         had consumed alcohol after he had been stopped by the officer.

Rule 1925(b) statement, 2/21/2018, at 1 (unnumbered pages). The trial court

issued a Rule 1925(a) opinion on March 13, 2018.

      On April 16, 2018, Attorney Tambourino filed with this Court a petition

to withdraw as counsel. On that same day, counsel also filed an Anders brief,

discussing the above-stated issues and concluding that they are frivolous, and

that Appellant has no other, non-frivolous issues he could pursue herein.

Accordingly,
      [t]his Court must first pass upon counsel’s petition to withdraw
      before reviewing the merits of the underlying issues presented by
      [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
      290 (Pa. Super. 2007) (en banc).

      Prior to withdrawing as counsel on a direct appeal under Anders,
      counsel must file a brief that meets the requirements established
      by our Supreme Court in Santiago. The brief 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;

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         (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, 978 A.2d at 361. Counsel also must provide a copy of
      the Anders brief to his client. Attending the brief must be a letter
      that advises the client of his right to: “(1) retain new counsel to
      pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
      points that the appellant deems worthy of the court[’]s attention
      in addition to the points raised by counsel in the Anders brief.”
      Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
      2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014) (some

brackets added). After determining that counsel has satisfied these technical

requirements of Anders and Santiago, this Court must then “conduct an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In the case sub judice, Attorney Tambourino’s Anders brief complies

with the above-stated requirements. Specifically, he provides a summary of

the procedural history and facts, he refers to parts of the record that could

arguably support Appellant’s appeal, and he sets forth his conclusion that

Appellant’s appeal is frivolous.   In addition, he states his reasons for that

determination, and supports his rationale with citations to relevant facts of

record and legal authority. Although neither Attorney Tambourino’s petition

to withdraw nor his Anders brief contains proof of service on Appellant,

Attorney Tambourino has sent a letter to Appellant enclosing copies of both


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his Anders brief and petition to withdraw.       In that letter, which he has

attached to his petition to withdraw, Attorney Tambourino also informed

Appellant of the rights enumerated in Nischan. Thus, counsel has complied

with the technical requirements for withdrawal. We will now independently

review the record to determine if Appellant’s issues are frivolous, and to

ascertain if there are any other, non-frivolous issues he could pursue on

appeal.

      In his first issue, Appellant challenges the sufficiency of the evidence,

arguing that the Commonwealth failed to prove that he was incapable of safe

driving. We apply the following standard of review to sufficiency claims:
      A challenge to the sufficiency of the evidence is a question of law,
      subject to plenary review. When reviewing a sufficiency of the
      evidence claim, the appellate court must review all of the evidence
      and all reasonable inferences drawn therefrom in the light most
      favorable to the Commonwealth, as the verdict winner. Evidence
      will be deemed to support the verdict when it establishes each
      element of the crime charged and the commission thereof by the
      accused, beyond a reasonable doubt. The Commonwealth need
      not preclude every possibility of innocence or establish the
      defendant’s guilt to a mathematical certainty. 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.

Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citation

omitted).

      The relevant statute provides that “[a]n 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

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movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1). “Subsection 3802(a)(1)

is an ‘at the time of driving’ offense, requiring that the Commonwealth prove

the following elements: the accused was driving, operating, or in actual

physical control of the movement of a vehicle during the time when he or she

was rendered incapable of safely doing so due to the consumption of alcohol.”

Teems, 74 A.3d at 145 (original brackets and citation omitted). Further, we

acknowledge that:
      Section 3802(a)(1) … is a general provision and provides no
      specific restraint upon the Commonwealth in the manner in which
      it may prove that an accused operated a vehicle under the
      influence of alcohol to a degree which rendered him incapable of
      safe driving…. The types of evidence that the Commonwealth may
      proffer in a subsection 3802(a)(1) prosecution include but are not
      limited to, the following: 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. Blood alcohol
      level may be added to this list, although it is not necessary and
      the two hour time limit for measuring blood alcohol level does not
      apply. … 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.
      Regardless of the type of evidence that the Commonwealth
      proffers to support its case, the focus of subsection 3802(a)(1)
      remains on the inability of the individual to drive safely due to
      consumption of alcohol-not on a particular blood alcohol level.

Id. (citation omitted).

      Here, Officer Brillhart testified that Appellant was traveling between

approximately 60-65 mph on roads with 35 mph speed limits.            N.T. Trial,

1/23/2018, at 9. He stated that Appellant had “bloodshot, glassy eyes” and

“slurred speech[,]” and “wasn’t very steady on his feet.” Id. at 11. Officer


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Brillhart explained that Appellant told him that he had “had a couple [drinks]

earlier in the evening[,]” and Officer Brillhart observed “a strong odor of an

alcoholic beverage on his breath.”     Id. at 12, 14.    When Officer Brillhart

requested to see Appellant’s license and registration, Officer Brillhart

described that Appellant “had trouble finding his license. He kept fumbling

through his wallet.” Id. Officer Brillhart testified that Appellant “bypassed his

license maybe twice before he actually handed [it] to me.” Id. Viewing this

evidence, and all reasonable inferences drawn from it, in the light most

favorable to the Commonwealth as the verdict winner, see Teems, 74 A.3d

at 144-45, we deem this evidence sufficient to establish that Appellant was

incapable of safe driving.

      In his second issue, Appellant contends that the verdict was against the

weight of the evidence. In particular, he claims that the evidence shows that

he had consumed alcohol after he had been stopped by the officer.

      Initially, it appears that Appellant has waived this claim. “A claim that

the verdict was against the weight of the evidence shall be raised with the trial

judge in a motion for a new trial: (1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a

post-sentence motion.” Pa.R.Crim.P. 607(A)(1)-(3). Based on our review of

the record, it does not seem that Appellant properly raised his weight claim

below, and if he had, he does not point us to where he did so. See Pa.R.A.P.




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2117(c) (requiring a statement of place of raising or preservation of issues).1

Thus, this claim is waived.

       Nevertheless, even if Appellant had properly preserved his weight claim,

we would conclude that no relief is due.           For such claims, we apply the

following standard of review:
       An allegation that the verdict is against the weight of the evidence
       is addressed to the discretion of the trial court. The Pennsylvania
       Supreme Court has explained that [a]ppellate review of a weight
       claim is a review of the exercise of discretion, not of the underlying
       question of whether the verdict is against the weight of the
       evidence. To grant a new trial on the basis that the verdict is
       against the weight of the evidence, this Court has explained that
       the evidence must be so tenuous, vague and uncertain that the
       verdict shocks the conscience of the court.

Commonwealth v. Childs, 63 A.3d 323, 326-37 (Pa. Super. 2013) (citation

omitted).

       In the case at bar, Appellant asserts that “the weight of the evidence

demonstrated that [he] consumed alcohol after he was stopped by Officer

Brillhart and that was the reason he appeared intoxicated.” Anders Brief at

17.   In other words, Appellant says he was not incapable of safe driving

because his intoxication came from alcohol he had drank after Officer Brillhart

had already pulled him over. See id. at 18.

       The trial court acknowledged that Appellant testified that he had a pill

bottle filled with alcohol on him, and said he had drank it after Officer Brillhart

pulled him over because he did not want to be found with an open container
____________________________________________


1 Instead, our review of the record indicates that Appellant raised his weight
claim for the first time in his Rule 1925(b) statement.

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of alcohol. TCO at 4 (citing N.T. at 4). However, the trial court did not find

Appellant to be credible. Id. Further, it noted that Officer Brillhart testified

that Appellant did not mention that he had just consumed a pill bottle filled

with alcohol at the time of the stop, nor did Officer Brillhart see Appellant drink

anything when approaching his car.             Id. at 5 (citing N.T. at 42-43).

Accordingly, we would discern no abuse of discretion by the trial court in

rejecting Appellant’s weight claim.

      In conclusion, we agree with Attorney Tambourino that Appellant’s

issues are frivolous. Furthermore, our independent examination of the record

reveals no other, non-frivolous issues that Appellant could raise on appeal.

Therefore, we affirm his judgment of sentence and grant counsel’s petition to

withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2018




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