J-S71020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JORGE EMILIO RODRIGUEZ-SILVA

                            Appellant                    No. 811 MDA 2014


              Appeal from the Judgment of Sentence April 10, 2014
                In the Court of Common Pleas of Lancaster County
               Criminal Division at No(s): CP-36-CR-0002007-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                             FILED JANUARY 13, 2015

        Appellant, Jorge Emilio Rodriguez-Silva, appeals from the judgment of

sentence entered April 10, 2014, in the Court of Common Pleas of Lancaster

County.     Additionally, Rodriguez-Silva’s court-appointed counsel, MaryJean

Glick, Esquire, has filed an application to withdraw as counsel pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).             After careful review, we affirm the

judgment of sentence and grant counsel’s petition to withdraw.

        Following the observance of erratic driving and behavior during the

traffic stop, as well as performing poorly in field sobriety tests, the police

arrested Rodriguez-Silva. A blood test disclosed the presence of marijuana

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
    Former Justice specially assigned to the Superior Court.
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and a BAC of .058%. After a bench trial, the trial court convicted Rodriguez-

Silva of three counts of driving under the influence and two summary

convictions for violations of the motor vehicle code.    This timely appeal

followed.

     As noted, Attorney Glick has requested to withdraw and has submitted

an Anders brief in support thereof contending that the appeal is frivolous.

The Pennsylvania Supreme Court has articulated the procedure to be

followed when court-appointed counsel seeks to withdraw from representing

an appellant on direct appeal:

     [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
     arguably believes 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.

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

     We note that Attorney Glick has complied with all of the requirements

of Anders as articulated in Santiago. Additionally, Attorney Glick confirms

that she sent a copy of the Anders brief to Rodriguez-Silva as well as a

letter explaining to him that he has the right to proceed pro se or the right

to retain new counsel. A copy of the letter is appended to Attorney Glick’s

petition, as required by this Court’s decision in Commonwealth v.

Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to


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facilitate appellate review, … counsel must attach as an exhibit to the

petition to withdraw filed with this Court a copy of the letter sent to

counsel’s client giving notice of the client’s rights.” Id. at 749 (emphasis in

original).

        We will now proceed to examine the issues counsel sets forth in the

well-written    Anders      brief.1     Rodriguez-Silva   first   contends   that   the

Commonwealth presented insufficient evidence to sustain his driving under

the influence convictions and his summary motor vehicle code convictions.2

We disagree. The facts underlying the convictions are as follows.

        Officer Michael Holzer was on routine patrol when he observed a

vehicle driving with its high beams engaged. Officer Holzer made a U-turn

and followed the vehicle. The vehicle had a broken tail light. The vehicle

also straddled the double yellow line so that half the car was in each lane. A

short time later, the vehicle again straddled the double yellow line. Another

car passed the suspect vehicle and flashed its high beams to alert the other

car that its high beams were activated.             At this point, Officer Holzer

conducted a traffic stop. It was 2:33 a.m.




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1
    Rodriguez-Silva has not filed a response to the petition to withdraw.
2
  For our standard of review, see Commonwealth v. Harden, ___ A.3d
___, ___, 2014 WL 5421012, *3 (Pa. Super., filed October 27, 2014).




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      Officer Holzer approached the vehicle and the driver identified himself

as Rodriguez-Silva.   There were other passengers in the car.      Rodriguez-

Silva had glassy and bloodshot eyes and a strong odor of burnt marijuana

emanated from the vehicle.       Rodriguez-Silva and the passengers were

laughing and carrying on—none exhibited any care that they had been pulled

over. Rodriguez-Silva admitted that the high beams had been on as the low

beams were not bright.

      Suspecting that Rodriguez-Silva was impaired, Officer Holzer radioed

for assistance from Officer Tichner. While Officer Holzer waited for backup

to arrive Rodriguez-Silva hung out of the driver’s side window, laughing and

carrying on. Officer Holzer requested Rodriguez-Silva to exit the vehicle, but

Rodriguez-Silva was unable to do so until one of the passengers assisted him

in unlocking the door. Upon exiting the vehicle, Officer Holzer smelled the

reek of marijuana emanating from Rodriguez-Silva’s person.         Rodriguez-

Silva denied smoking the banned substance.

      Officer Tichner arrived and performed field sobriety tests. Rodriguez-

Silva performed poorly on the tests.   At this point, Officer Holzer believed

Rodriguez-Silva was incapable of safe driving.         The officers arrested

Rodriguez-Silva and then contacted Officer Jared Hahn, a drug recognition

expert, to evaluate Rodriguez-Silva. Officer Hahn evaluated Rodriguez-Silva

at the police station and concluded that he was under the influence of

marijuana and alcohol. Rodrigiez-Silva agreed to a blood test. The test was

conducted at a local hospital at 4:41 a.m., and Rodriguez-Silva’s BAC was

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.058%.         The active (delta-9-THC) and inactive (delta-9-carboxy-THC)

ingredients of marijuana were also in his blood—at rates above the minimum

reporting levels.

         The    Commonwealth     presented    sufficient   evidence   to   sustain

Rodriguez-Silva’s convictions for driving under the influence. Officer Holzer

and Officer Hahn both testified that Rodriguez-Silva was under the influence

of marijuana and alcohol to the degree that it impaired his ability to safely

drive.    Officer Holzer further detailed Rodriguez-Silva’s erratic driving and

behavior.       The blood test established the presence of marijuana.        This

evidence is plainly sufficient to sustain the convictions under 75 Pa.C.S.A. §

3802(d)(1)(i), (iii), and (3).

         The Commonwealth also presented sufficient evidence to sustain the

convictions for      violating the   motor   vehicle   code.   Specifically, that

Rodriguez-Silva violated 75 Pa.C.S.A. § 3309, for driving over the double

yellow lines, and 75 Pa.C.S.A. § 4306(a), for using his high beams when

driving past opposing lanes of traffic. Officer Holzer testified that Rodriguez-

Silva crossed the double yellow lines on two occasions and that he had his

high beams engaged when a car passed by in the opposing lane.

         Rodriguez-Silva next maintains that the blood test occurred outside

the two-hour time limit. The two-hour time limit, however, does not apply

to convictions under 75 Pa.C.S.A. § 3802(d).            See Commonwealth v.

Wilson, 101 A.3d 1151, 1156 (Pa. Super. 2014) (“[W]e decline to impose a




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two-hour     time    limit   when     testing    for   the   presence   of   controlled

substances….”).

       Rodriguez-Silva next alleges that trial counsel did not effectively cross-

examine certain witnesses. Apart from two limited exceptions not pertinent

here, claims of ineffective assistance of counsel cannot be raised on direct

review.    See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).

Accordingly, Rodriguez-Silva cannot raise this claim on direct review.

       The final contention is Rodriguez-Silva’s assertion that his sentence of

72 hours to six months for his conviction of 75 Pa.C.S.A. § 3802(d)(3) is

illegal.3 The sentence is legal. For a first offense, the minimum sentence

mandated by statute is 72 hours’ imprisonment.                  See 75 Pa.C.S.A. §

3804(c)(1)(i).      The maximum sentence is six months’ imprisonment.             See

75 Pa.C.S.A. § 3803(b)(1).

       After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

       Judgment of sentence affirmed.             Petition to withdraw as counsel

granted.




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3
  The other two driving under the influence convictions merged for
sentencing purposes. The summary convictions resulted in $25 fines.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2015




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