J-S42034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                       :    IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                         :           PENNSYLVANIA
                                          :
                      Appellee            :
                                          :
                 v.                       :
                                          :
    VONSINTARREYUN DESHARVIE              :
    AUDILES,                              :
                                          :
                      Appellant           :    No. 368 MDA 2018

            Appeal from the Judgment of Sentence January 25, 2018
                in the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-SA-0000072-2017

BEFORE:      BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ

MEMORANDUM BY STRASSBURGER, J.:                    FILED OCTOBER 02, 2018

        Appellant Vonsintarreyun Desharvie Audiles (Appellant) appeals from

her January 25, 2018 judgment of sentence after she was found guilty of

driving while operating privilege is suspended or revoked pursuant to 75

Pa.C.S. § 1543(a).       Counsel has filed a petition to withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967).               We affirm

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

        We provide the following background.

        On May 22, 2017, Officer Matthew Lynch of the Chambersburg
        Police Department filed a traffic citation against [Appellant],
        charging her with driving while operating privileges are suspended
        or revoked, pursuant to 75 Pa.C.S.[] § 1543(a). On July 13, 2017,
        a summary trial took place before the magisterial district judge.
        At the conclusion of the hearing, the magisterial district judge
        found [Appellant] guilty, and imposed a sentence of not less than
        90 days to not more than 180 days in the county jail,1 a fine [of]
        $1,000, and other fees and costs.

*   Retired Senior Judge assigned to the Superior Court.
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            __________
            1 This conviction is [Appellant’s] fourth violation of 75
            Pa.C.S. § 1543(a). As such, the penalties are set
            forth in 75 Pa.C.S. § 6503; this provision provides
            maximum penalties of $1,000 fine and [six] months’
            imprisonment for a second or subsequent violation of
            [subsection] 1543(a).

     On July 17, 2017, [Appellant] filed a notice of appeal from
     summary criminal conviction with [the trial court]. After several
     continuances, a summary appeal trial was held on January 25,
     2018; [Appellant] was represented by counsel. At the conclusion
     of the evidence, [the trial court] found [Appellant] guilty, fined
     her $1,000, and sentenced her to a period of incarceration of not
     less than 45 days to not more than 90 days in Franklin County
     Jail, followed by 90 days of electronic monitoring, with costs paid
     by [Appellant].

Trial Court Opinion (TCO), 4/3/2018, at 1-2 (unnecessary capitalization

omitted).

     Appellant timely filed a notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

     In this Court, counsel has filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review.

            Direct appeal counsel seeking to withdraw under Anders
     must file a petition averring that, after a conscientious
     examination of the record, counsel finds the appeal to be wholly
     frivolous. Counsel must also file an Anders brief setting forth
     issues that might arguably support the appeal along with any
     other issues necessary for the effective appellate presentation
     thereof….

            Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any additional
     points worthy of this Court’s attention.




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               If counsel does not fulfill the aforesaid technical
        requirements of Anders, this Court will deny the petition to
        withdraw and remand the case with appropriate instructions (e.g.,
        directing counsel either to comply with Anders or file an
        advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
        petition and brief satisfy Anders, we will then undertake our own
        review of the appeal to determine if it is wholly frivolous. If the
        appeal is frivolous, we will grant the withdrawal petition and affirm
        the judgment of sentence. However, if there are non-frivolous
        issues, we will deny the petition and remand for the filing of an
        advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Further, our Supreme Court has specified the following

requirements for the 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
        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. Super. 2009).

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above.1 Thus, we now have the responsibility

“‘to make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.’”




____________________________________________


1   Appellant has not filed a response to counsel’s petition to withdraw.


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Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)

(quoting Santiago, 978 A.2d at 354 n.5).

     In her Anders brief, counsel presents the following as issues which

arguably support an appeal:

     1. Did the trial court err in finding Appellant guilty when the
        Commonwealth failed to prove every element of the charge[]
        beyond a reasonable doubt and therefore, was insufficient to
        support Appellant’s conviction?

     2. Did the trial court err in finding Appellant guilty following
        Appellant’s summary appeal trial when the verdict was against
        the weight of the evidence presented?

Anders Brief at 7 (suggested answers omitted).

     Initially, we consider whether Appellant’s sufficiency-of-the-evidence

claim is waived.   To preserve such a claim, the trial court may direct an

appellant to submit a Rule 1925(b) concise statement of matters complained

of on appeal. Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.

2008). The Rule 1925(b) statement “needs to specify the element or elements

upon which the evidence was insufficient.”    Id.   If the appellant fails to

articulate the elements of her crime for which the evidence is allegedly

insufficient, then that issue is waived. See id. Instantly, Appellant's Rule

1925(b) statement does not specify the allegedly unproven elements upon

which the evidence was insufficient. Thus, we find Appellant has waived this

claim.




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      Even if Appellant’s sufficiency-of-the-evidence claim were not waived,

we agree with counsel that this issue is frivolous. In reviewing a sufficiency-

of-the-evidence claim, the following principles apply.

      The standard of review for a challenge to the sufficiency of the
      evidence is to determine whether, when viewed in a light most
      favorable to the verdict winner, the evidence at trial and all
      reasonable inferences therefrom is sufficient for the trier of fact to
      find that each element of the crimes charged is established beyond
      a reasonable doubt. The Commonwealth may sustain its burden
      of proving every element beyond a reasonable doubt by means of
      wholly circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubt raised
      as to the accused’s guilt is to be resolved by the fact-finder. As
      an appellate court, we do not assess credibility nor do we assign
      weight to any of the testimony of record. Therefore, we will not
      disturb the verdict 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.

Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)

(quoting Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotations omitted)).

      To sustain a conviction for driving while operating privilege is suspended

or revoked, the Commonwealth must prove that Appellant was driving a motor

vehicle on a highway or trafficway while her operating privilege (i.e., driver’s




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license) was suspended, revoked, or cancelled. 75 Pa.C.S. § 1543(a).2

        The trial court offered the following in support of its determination that

Appellant was driving while her operating privilege was suspended.

        During the trial in this matter, the Commonwealth presented the
        testimony of Officer Lynch. He testified as follows:

              [O]n May 22, 2017[,] I was on duty as a uniformed
              patrol officer working within the Chambersburg
              Borough which is located in Franklin County.

              On that date[,] I was driving a marked patrol car and
              I was in uniform, and I was in the area of South
              Franklin Street near Loudon Street, and this was at
              approximately 12:36 in the afternoon.

              On that time and date[,] I observed a gold Chevrolet
              Impala [vehicle] turn from Loudon Street on to South
              Franklin Street headed north bound in the opposite
              direction where I was stopped in traffic.

              When that vehicle passed me I recognized the driver
              as [Appellant,] who is seated over here in the gray
              shirt with purple hair.

                                           ***

              She was operating that vehicle on that date.
____________________________________________


2   This subsection provides:

        (a) Offense defined.--Except as provided in subsection (b), any
        person who drives a motor vehicle on any highway or trafficway
        of this Commonwealth after the commencement of a suspension,
        revocation or cancellation of the operating privilege and before the
        operating privilege has been restored is guilty of a summary
        offense and shall, upon conviction, be sentenced to pay a fine of
        $200.

75 Pa.C.S. § 1543(a). Subsection 1543(b) referenced therein is not relevant
to the instant case.



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                                           ***

              Whenever I got turned around in traffic[, Appellant]
              accelerated through the turn on to West Queen Street
              and hastily pulled over with the back end of her
              vehicle sticking out in traffic.

              I was able to pull up behind her with my lights and
              initiate a traffic stop on her, and she still remained
              within the driver’s seat of that vehicle.

       [N.T., 1/25/2018, at 7-9]

TCO, 4/3/2018, at 4-5 (footnote and emphasis omitted).

       Here, Appellant argues that the evidence was insufficient to prove that

Appellant was driving the vehicle.3            Anders Brief at 11.   Specifically, she

claims that when Officer Lynch “initiated a traffic stop of Appellant’s vehicle,

the vehicle was not being driven[,] the vehicle was stationary” and “Officer

Lynch did not testify that he made any attempt to ascertain whether the

vehicle had recently been driv[en], such as feeling the hood of the car to see

if the engine was hot.” Id. at 10. Appellant relies on her testimony that she

was not driving the vehicle, but rather was simply seated in the driver’s seat

when Officer Lynch approached. Id. at 10-11.




____________________________________________


3 Our review of the certified record confirms Appellant’s operating privilege
was suspended or revoked at the time of the incident. See N.T., 1/25/2018,
at Commonwealth Exh. 3 (Appellant’s certified driver history). There does not
appear to be any dispute regarding same, and Appellant does not challenge
this on appeal.


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      Viewing the facts in the light most favorable to the Commonwealth, the

evidence is sufficient to support the trial court’s determination that Appellant

was driving the vehicle. As the trial court explained,

      [t]he Commonwealth must prove that a vehicle was in fact driven.
      See, e.g., Commonwealth v. Costa-Hernandaz, 802 A.2d 671,
      763-74[] (Pa. Super. 2002).

                                      ***

      [T]he testimony of Officer Lynch was sufficient for [the trial court]
      to find that [Appellant] was driving the vehicle. Officer Lynch’s
      testimony, standing alone, clearly sufficed as both direct evidence
      (his observation of her driving) and circumstantial evidence that
      [Appellant] had driven the vehicle in violation of [subs]ection
      1543[a] of the vehicle code (he observed the car in motion on the
      road, saw it pull over with its back end sticking out in the road,
      and found [Appellant] in the driver’s seat immediately thereafter).

TCO, 4/3/2018, at 4-5. We agree with the trial court’s determination that

Officer Lynch’s testimony was sufficient for a fact-finder to believe that

Appellant was driving the vehicle. Accordingly, we agree with counsel that

this issue is frivolous.

      We now turn to Appellant’s weight-of-the-evidence issue. Anders Brief

at 11. A challenge to the weight of the evidence is waived unless it is first

presented to the trial court. Commonwealth v. Sherwood, 982 A.2d 483,

494 (Pa. 2009). Specifically, such a claim is subject to preservation pursuant

to Pennsylvania Rule of Criminal Procedure 607(A), which provides:

      (A) 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;


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

              (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A); see also Commonwealth v. Griffin, 65 A.3d 932, 938

(Pa. Super. 2013). Although a defendant appealing a summary offense in the

court of common pleas is not permitted to file a post-sentence motion, see

Pa.R.Crim.P. 720(D),4 such a defendant is obligated nonetheless to preserve

a weight-of-the-evidence claim by motion prior to sentencing. Pa.R.Crim.P.

607(A)(1), (2).

       Because Appellant did not raise her weight-of-the-evidence claim before

the trial court, she has waived it.5,     6    See Sherwood, 982 A.2d at 494. An

issue that is waived is frivolous. Commonwealth v. Tukhi, 149 A.3d 881,


____________________________________________


4 Rule 720(D) provides, “There shall be no post-sentence motion in summary
case appeals following a trial de novo in the court of common pleas. The
imposition of sentence immediately following a determination of guilt at the
conclusion of the trial de novo shall constitute a final order for purposes of
appeal.” Pa.R.Crim.P. 720(D).
5 Appellant did present this issue in her Pa.R.A.P. 1925(b) statement, and the
trial court addressed it in its opinion. See Concise Statement, 3/12/2018, at
2 (unnumbered); TCO, 4/3/2018, at 5. However, the “[f]ailure to properly
preserve [a weight-of-the-evidence] claim results in waiver, even if the trial
court addresses the issue in its [Rule 1925(a)] opinion.” Griffin, 65 A.3d at
938 (citing Sherwood, 982 A.2d at 494).

6Even if Appellant’s claim were not waived, she would not be entitled to relief.
The trial court concluded that its verdict did not shock one’s sense of justice.
TCO, 4/3/2018, at 5. Despite Appellant’s argument to the contrary, the
Commonwealth established that Appellant was driving the vehicle. Thus, we
discern no abuse of discretion in the trial court’s conclusion.


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888–89 (Pa. Super. 2016); Commonwealth v. Kalichak, 943 A.2d 285, 291

(Pa. Super. 2008) (holding that when an issue has been waived, “pursuing

th[e] matter on direct appeal is frivolous”). Accordingly, on this basis, we

agree with counsel that this claim is frivolous.

      Moreover, we have conducted “a full examination of the proceedings”

and conclude that “the appeal is in fact wholly frivolous.” Flowers, 113 A.3d

at 1248. Accordingly, we affirm the 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: 10/02/2018




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