J-S78032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
BARRY LEE BROWN,                         :
                                         :
                 Appellant               :           No. 818 MDA 2014

   Appeal from the Judgment of Sentence entered on December 17, 2013
             in the Court of Common Pleas of Dauphin County,
               Criminal Division, No. CP-22-CR-0002986-2013

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED JANUARY 07, 2015

     Barry Lee Brown (“Brown”) appeals from the judgment of sentence

entered following his convictions of driving under the influence (“DUI”)—

general impairment, see 75 Pa.C.S.A. § 3802(a)(1); DUI—high rate of

alcohol (.10-.16) (first offense), see id. § 3802(b); and DUI—controlled

substance—Schedule I (first offense), see id. § 3802(d)(1)(i) and (3), and

maximum speed limits, see id. § 3362(a)(1.2). Counsel for Brown, Wendy

J.F. Grella, Esquire (“Attorney Grella”), has filed a Petition to Withdraw as

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

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

counsel’s Petition to Withdraw and affirm Brown’s judgment of sentence.

     On March 9, 2013, while working on a speed enforcement detail,

Steelton Police Officer Anthony Minium (“Officer Minium”) observed a red
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Mitsubishi driving 37 miles per hour in an area posted for a maximum speed

of 25 miles per hour.1 Officer Minium notified Steelton Police Officer Keven

Martin (“Officer Martin”). The trial court described what next transpired as

follows:

      There were several other speeding stops on the road and when
      the Mitsubishi pulled over[,] it almost struck another police
      vehicle. Officer Martin testified that he believed the driver[,]
      whom he identified as [Brown,] was swerving[,] which caused
      [a] near accident. The vehicle then stopped and[,] as Officer
      Martin approached, he observed [Brown] pounding on the
      steering wheel and yelling.

             Officer Martin explained [to Brown] why he had stopped
      the vehicle and [Brown] continued to scream and say he was not
      speeding. Officer Martin observed that [Brown] had red, glassy
      eyes, a strong order [sic] of alcohol emanating from his body,
      slurred speech and he did not have shoes on inside the vehicle.
      [Officer Martin] asked [Brown] for identification, at which point
      [Brown] searched through the center console, stopped, searched
      his back pocket and fumbled through his wallet to produce his
      Pennsylvania driver’s license.     Officer Martin ran [Brown’s]
      identification and it came back that he had an active capias in
      Dauphin County. [Officer] Martin called [Steelton Police] Officer
      Pendleton [“Officer Pendleton”] (also working the speed
      enforcement detail) for assistance in taking a possible DUI into
      custody on a capias.

            At this point, [Officer] Martin directed [Brown] out of the
      vehicle and [Brown] continued to yell and did not comply with
      the directions. Officer Martin opened the door and assisted him
      out of the vehicle. Brown was swaying from side to side, and
      Officer Martin questioned him on the swaying and asked him
      how much he had to drink. [Brown] said he had a knee injury
      from the 1980s and had some foot issues[,] which were why he
      was swaying. Because of the reported injuries, Officer Martin did
      not conduct a field sobriety test; but[,] rather[,] asked him to

1
  Officer Minium used an ENRADD device to determine the speed of the
Mitsubishi. N.T., 12/17/13, at 7. The ENRADD device is approved for use by
the police to determine speed. Id.


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     take a preliminary breath test[,] which [Brown] refused.
     Ultimately, [Brown] was placed under arrest for the capias and
     driving under the influence of alcohol or a controlled substance.
     [Brown’s] vehicle was towed, and as part of the [police]
     department’s policy, a search warrant was performed prior to
     towing to make sure there wasn’t anything of value in the car.
     Officer Martin discovered an empty beer can and a full beer can
     under the driver’s seat.

           Officer Martin transported [Brown] to Harrisburg Hospital
     for chemical testing.      [Officer] Martin read the chemical
     warnings[,] which [Brown] refused to sign. After the refusal,
     Officer Martin again asked if [Brown] would consent to the blood
     test. At this point[, Brown] consented and blood was drawn. …
     The lab results showed that [Brown] had a BAC of .148 (above
     the legal limit of .08) and had cocaine metabolites[] in his
     system.

Trial Court Opinion, 4/25/14, at 3-4 (citations to Notes of Testimony

omitted).

     After a bench trial, the trial court convicted Brown of the above-

described offenses.   The trial court subsequently sentenced Brown, for his

conviction of DUI—general impairment, to 27 hours to six months in jail, and

to pay costs and a fine in the amount of $1,000.00, and restitution.     The

trial court imposed no further sentence for Brown’s remaining convictions.

The trial court subsequently granted Brown permission to file a post-

sentence motion and appeal, nunc pro tunc.      Brown filed a Post-Sentence

Motion challenging the verdict as against the weight of the evidence. The

trial court denied Brown’s Post-Sentence Motion, after which Brown filed the

instant appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of Matters Complained of on Appeal.



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     Subsequently, Attorney Grella filed with this Court a Petition to

Withdraw as Counsel, and an Anders Brief challenging the verdict as against

the weight of the evidence. Before addressing the substantive claim raised

in the Anders Brief, we first must determine whether Attorney Grella has

complied with the dictates of Anders and its progeny in petitioning to

withdraw from representation.

     In order for counsel to withdraw from an appeal pursuant to Anders,

certain requirements must be met, and 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 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.         “Once counsel has satisfied the above

requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.” Commonwealth v. Wimbush, 951

A.2d 379, 382 (Pa. Super. 2008) (citation omitted).

     Attorney Grella’s Petition avers that she has reviewed the record and

determined that the appeal is frivolous.     Petition to Withdraw, ¶ 11, 13.

Additionally, Attorney Grella’s Petition states that she notified Brown that

she seeks to withdraw from representation, furnished Brown with copies of



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her Petition to Withdraw and Anders brief, and advised Brown of his right to

retain new counsel or proceed pro se to raise any points he believes worthy

of this Court’s attention. See id., ¶ 21.

      Our review discloses that Attorney Grella has substantially complied

with the dictates of Anders and Santiago.           See Commonwealth v.

O’Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008) (holding that substantial

compliance with the requirements to withdraw as counsel will satisfy the

Anders criteria). Accordingly, we next conduct our independent analysis of

the record to determine whether the appeal is wholly frivolous.

      In the Anders brief, Brown claims that the evidence is not sufficient to

sustain his convictions. Anders Brief at 11. In reviewing a challenge to the

sufficiency of the evidence, we evaluate the record “in the light most

favorable to the verdict winner giving the prosecution the benefit of all

reasonable inferences to be drawn from the evidence.” Commonwealth v.

Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009) (citation omitted).

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence.     Significantly, [we] may not
      substitute [our] judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Id. (citation and quotation marks omitted).          “Any doubt about the

defendant’s guilt is to be resolved by the factfinder unless the evidence is so

weak and inconclusive that, as a matter of law, no probability of fact can be


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drawn from the combined circumstances.” Commonwealth v. Scott, 967

A.2d 995, 998 (Pa. Super. 2009).

     Brown was convicted of violating Motor Vehicle Code sections 3802

and 3362. Section 3802 provides, in relevant part, as follows:

     (a) General impairment.

         (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.
     …

     (b) High 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 at
     least 0.10% but less than 0.16% within two hours after the
     individual has driven, operated or been in actual physical control
     of the movement of the vehicle.

     …


     (d) Controlled substances. --An individual may not drive,
     operate or be in actual physical control of the movement of a
     vehicle under any of the following circumstances:

         (1) There is in the individual's blood any amount of a:

           (i) Schedule I controlled substance, as defined in the act of
           April 14, 1972 (P.L. 233, No. 64), known as The Controlled
           Substance, Drug, Device and Cosmetic Act[.]

           …

         (3) The individual is under the combined influence of alcohol
         and a drug or combination of drugs to a degree which
         impairs the individual's ability to safely drive, operate or be
         in actual physical control of the movement of the vehicle.


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75 Pa.C.S.A. § 3802. Section 3362 provides as follows:

      (a) General rule. --Except when a special hazard exists that
      requires lower speed for compliance with section 3361 (relating
      to driving vehicle at safe speed), the limits specified in this
      section or established under this subchapter shall be maximum
      lawful speeds and no person shall drive a vehicle at a speed in
      excess of the following maximum limits:

      …

          (1.2) 25 miles per hour in a residence district if the highway:

          …
              (ii) is functionally classified by the department as a local
              highway.

75 Pa.C.S.A. § 3362.

      Here, the Commonwealth presented evidence that, using an approved

ENRADD device, Officer Minium determined that Brown was driving 37 miles

per hour, in a zone marked for 25 m.p.h. N.T., 12/17/13, at 6, 7. Officer

Martin testified that he attended four training sessions, conducted by the

Pennsylvania DUI Association, on driving under the influence.           Id. at 14.

Officer Martin stated that, with his lights and siren activated, he drove his

vehicle behind the vehicle driven by Brown. Id. at 15. Brown immediately

drove his vehicle to the right, almost striking a police vehicle parked on the

side of the road.    Id.   According to Officer Martin, Brown’s eyes were red

and glassy.      Id. at 17.     Further, Officer Martin observed that Brown

emanated a strong odor of alcoholic beverages, his speech was slurred, and

Brown was not wearing shoes. Id. Officer Martin testified that upon exiting



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the vehicle, Brown swayed from side to side.           Id. at 18. Although Brown

refused a preliminary breathalyzer test, he subsequently consented to a

blood test.    Id. at 22.    The blood test revealed that Brown had a blood

alcohol content of .148 percent, and “he also had another cocaine

metabolite, ecgonine methyl ester; that was 200 nanograms per milliliter.” 2

Id. at 24.

        The evidence set forth above, viewed in a light most favorable to the

Commonwealth, was sufficient to sustain each of Brown’s convictions.

Further, our independent review discloses no non-frivolous issues that could

be raised by Brown on appeal. Accordingly, we grant counsel’s Petition to

Withdraw, and affirm Brown’s judgment of sentence.

        Petition to Withdraw granted; judgment of sentence affirmed.


2
    At trial, Brown proffered the following defense:

        [Brown]: When I turned down Front Street, when I turned, I
        seen [sic] two police cars about 500 feet. They had some people
        pulled over, and they had their lights on. So I rode on by them.

             If I [had] seen two police cars with their lights on, I
        wouldn’t even be speedin[g] by no police cars.

              I wasn’t speedin[g] anyway because I know how Steelton
        police are, [be]cause I ... drove Meals on Wheels there for eight
        years, goin[g] from Steelton, and … I see cops on—they be [sic]
        everywhere. So it wouldn’t make no difference for me to be
        speedin[g] in Steelton.

N.T., 12/17/13, at 32-33. Brown did not challenge the results of his blood
test, or argue that he was not under the influence at the time he was
stopped by police. See id. at 35-36 (wherein Brown admits that his blood
alcohol content was .148 percent, and that he had cocaine in his blood).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/7/2015




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