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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

TINA M. CRISAFI

                               Appellant              No. 1789 MDA 2015


           Appeal from the Judgment of Sentence September 22, 2015
       in the Court of Common Pleas of Luzerne County Criminal Division
                       at No(s): CP-40-CR-0004125-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 24, 2016

        Appellant, Tina M. Crisafi, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas following her

convictions for driving under the influence (“DUI”),1 and DUI, high rate of

alcohol.2    Appellant’s counsel, John A. Donovan, Jr., Esq. (“Counsel”), has

filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738

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

deny the petition to withdraw and direct counsel to either amend his Anders

brief in compliance with Santiago or file an advocate’s brief.




*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 3802(b).
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      On July 18, 2014, Appellant was arrested on charges of DUI, general

impairment, and DUI, high rate of alcohol. Criminal Compl., 7/18/14, at 2.

On April 28, 2015, a jury trial commenced. The Commonwealth presented

Officer Jason Dudick of the Wilkes-Barre Police Department as its sole

witness. Officer Dudick testified that while on patrol, he responded to a call

reporting two females fighting in the middle of the road on Madison Street.

N.T. Trial, 4/28/15, at 13-14.   When he arrived on the scene, he found a

green Ford Explorer station wagon stopped in the middle of the road with

Appellant sitting inside. Id. at 14. As Officer Dudick approached the car,

the car “veered to the right, and the front passenger tire struck the curb.”

Id. at 15. Officer Dudick testified that as soon as the car struck the curb,

Appellant exited the vehicle. Id. at 15. For Appellant’s own safety, Officer

Dudick then ordered her to return to her car, and she complied. Id.

      Officer Dudick testified that upon making contact with Appellant, he

“noticed that she had the bloodshot eyes.       She smelled of an alcoholic

beverage. And then once she did exit the vehicle, she was stumbling.” Id.

at 16. Officer Dudick then took Appellant into custody on suspicion of DUI,

and transported her to the Wilkes-Barre City Police Headquarters. Id. at 18.

The parties stipulated to the fact that Appellant submitted to a breathalyzer

test, which returned a result of .137 BAC. Id. at 27-28.

      Appellant testified on her own behalf, explaining that she lent her car

to her friend Teodoro “Tolo” Amigon on July 17, 2014.       Id. at 32.   That



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evening, her friends drove her to and from a bar where she consumed five

to six glasses of wine. Id. at 33. Upon returning home, she noticed that Mr.

Amigon had not returned the car as he said he would. Id. at 34. Sometime

between 12:00 a.m. and 1:00 a.m. on the morning of July 18, 2015, she

called her husband and asked him to drive her to Mr. Amigon’s house. Id.

Her husband dropped her off at Mr. Amigon’s house and left.       Id. at 35.

Once there, Mr. Amigon explained that after driving the car to run errands,

he started to drink and for that reason did not drive the car back to

Appellant’s house. Id.

     At some point during the conversation, Mr. Amigon’s girlfriend exited

the house and fought with Appellant. Id. Appellant testified that after the

two struck one another, Mr. Amigon separated them and instructed

Appellant to go cool off in her car. Id. Appellant then called her husband to

ask him to pick her up and take her home. Id. While she was sitting in the

car, the police approached, having been called by a neighbor during the

fight. Id. at 36-37. She explained to the officer who arrived that she had

been drinking and that she had no intention to drive. Id. at 40. Appellant

testified that throughout this ordeal, Mr. Amigon maintained possession of

the car keys. Id. at 36, 40.

     Appellant’s husband, James Crisafi, corroborated much of Appellant’s

testimony, adding that when he returned to Mr. Amigon’s house to pick up

Appellant, she and the car were gone.     Id. at 50.   Teodoro Amigon was



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called as the final witness for the defense, and he testified to a similar

account of the night’s events as Appellant. Id. at 55-62.

     The jury found Appellant guilty on April 28, 2015, and Appellant was

sentenced on September 22, 2015.      Appellant did not file a post-sentence

motion, and timely filed the instant appeal on October 8, 2015.          On

December 1, 2015, Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement.    That same day, Counsel notified the court of his intent to

withdraw pursuant to Anders and Santiago.        On December 8, 2015, the

trial court filed a responsive Pa.R.A.P. 1925(a) opinion. On April 11, 2016,

Counsel submitted both his petition to withdraw appearance as counsel and

an Anders brief.

     Counsel in the Anders brief raises the following question before this

Court:

         Whether the Commonwealth failed to present evidence
         sufficient to prove beyond a reasonable doubt that
         [Appellant] was guilty of one count of driving under the
         influence, general impairment, incapable of driving safely,
         3rd offense pursuant to 75 Pa.C.S. § 3802 (a)(1), and one
         count of driving under the influence, high rate of alcohol
         pursuant to 75 Pa.C.S. § 3802 (b)?

Anders Brief at 1.

     “As we do not address the merits of issues raised on appeal without

first reviewing a request to withdraw, we review counsel's petition to

withdraw at the outset.”   Commonwealth v. Zeigler, 112 A.3d 656, 659

(Pa. Super. 2015) (citation omitted). In requesting withdrawal:



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         [c]ounsel 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) furnish a copy of the brief to the
         defendant; and 3) advise the defendant that he or she has
         the right to retain private counsel or raise additional
         arguments [pro se] that the defendant deems worthy of
         the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted).

      Regarding the instant petition to withdraw, we conclude that Counsel

has properly complied with the requirements.      Id. at 1032.    Counsel has

stated that he made a conscientious examination of the record. See Pet. to

Withdraw, 4/11/16, at 1 (unpaginated). In addition, Counsel has provided a

copy of the brief to Appellant, advised her of her rights to retain private

counsel or proceed pro se, and to raise any additional points with this Court

that Appellant may deem worthy of our attention. Id. at 3-4. Accordingly,

Counsel’s petition to withdraw is technically compliant, and we proceed to a

review of Counsel’s Anders brief.

      Our Supreme Court in Santiago has set forth the requirements for the

content of an Anders brief:

         [I]n the Anders brief that accompanies court-appointed
         counsel’s petition to withdraw, counsel 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; (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



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         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. The Santiago Court stressed in particular the

importance of its last requirement, which departed from the previous

standard set forth in Commonwealth v. McClendon, 434 A.2d 1185, 1187

(Pa. 1981) (holding that an Anders brief must state counsel’s conclusion

that the appeal is “wholly frivolous”).       See also Commonwealth v.

Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007) (noting that “[a] proper

Anders brief does not explain why the issues are frivolous . . . Rather, the

brief articulates the issues in neutral form . . . . and concludes that, after a

thorough review of the record, the appeal is wholly frivolous.”).            In

Santiago, the Court explained:

         As the United States Supreme Court has noted, the task of
         articulating reasons [for concluding an appeal is wholly
         frivolous] can shed new light on what may at first appear
         to be an open-and-shut issue.       It can also reveal to
         counsel previously unrecognized aspects of the record or
         the law and thereby provide a safeguard against a hastily-
         drawn or mistaken conclusion of frivolity. In addition, we
         believe that it is often the case that the basis for an
         attorney’s opinion that an appeal is frivolous is not readily
         apparent, and that accordingly, counsel’s explanation will
         significantly assist the courts in passing upon the
         soundness of counsel’s conclusion, which, in turn,
         vindicates the right to counsel.

Santiago, 978 A.2d at 360-61 (citations omitted).

      This Court has emphasized the caution which counsel should exercise

in determining an appeal to be wholly frivolous: “an appointed counsel

should advance the best argument [that he] is capable of constructing and


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allow the appellate court to make the ultimate determination that the

argument lacks merit.”   Commonwealth v. Orellana, 86 A.3d 877, 882

(Pa. Super. 2014) (citation and emphasis omitted).     Such due diligence is

particularly significant in the context of an Anders brief.     For only after

counsel has met the above requirements, does “it then become[] 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 354 n.5 (citation

omitted and emphasis added).

     We find that counsel’s Anders brief fails to satisfy these standards.

Counsel sets forth Appellant’s argument in a single sentence:

        Ms. Crisafi argues that the Commonwealth failed to
        present evidence sufficient to prove beyond a reasonable
        doubt that she was guilty of one count of driving under the
        influence, general impairment, incapable of driving safely,
        3rd offense pursuant to 75 Pa.C.S. § 3802 (a)(1), and one
        count of driving under the influence, high rate of alcohol
        pursuant to 75 Pa.C.S. § 3802 (b).

Anders Brief at 6. Further, Counsel does not provide any support from the

record for this argument whatsoever. See Santiago 978 A.2d at 360-61.

Instead, Counsel provides two sentences describing the statutes under which

Appellant was sentenced.   Anders Brief at 6. Likewise, Counsel lists only

two reasons for which he believes the appeal is wholly frivolous, but does

not support those conclusions in any way. Id. at 7. He merely states that

taken in the light most favorable to the Commonwealth, sufficient evidence



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supported Appellant’s conviction and that the issue of witness credibility was

properly determined by the fact finder. Id. These general statements are

not supported by any reference to facts in the record. See Santiago 978

A.2d at 360-61.     Accordingly, Counsel has thirty days to either file an

amended Anders brief that complies with the requirements set forth in

Santiago or file an advocate’s brief should Counsel revise his opinion upon

further review.

      Counsel’s   petition   to   withdraw   denied.   Case   remanded   with

instructions. Jurisdiction retained.




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