J-S42028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC RAUL MUNIZ

                            Appellant                  No. 1965 MDA 2016


            Appeal from the Judgment of Sentence November 7, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002483-2016


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                      FILED SEPTEMBER 19, 2017

       Eric Raul Muniz appeals from the November 7, 2016 judgment of

sentence entered in the York County Court of Common Pleas following his

convictions for driving under the influence (“DUI”), driving while operating

privilege is suspended, and driving vehicle at an unsafe speed.1       Muniz’s

appellate counsel has filed an Anders2 brief and a petition to withdraw from

representation. We affirm and grant counsel’s petition to withdraw.

       This case stems from a single-vehicle crash on March 6, 2016 at

approximately 2:45 a.m. N.T., 11/7/16, at 8-10 (“N.T.”). Sergeant Adam

Garman testified that he arrived at 600 Rathton Road in York County where
____________________________________________


       1
           75 Pa.C.S. §§ 3802(a)(1), 1543(b)(1), and 3361, respectively.
       2
           Anders v. California 386 U.S. 738 (1967).
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he observed a silver sedan with front-end damage. Id. at 8-9. Sergeant

Garman testified that he observed a person standing near the vehicle’s

trunk, who he later determined to be Muniz.      Id. at 9.   Sergeant Garman

also observed a person in the passenger seat of the vehicle who appeared to

be highly intoxicated. Id. at 10. Sergeant Garman testified that when he

asked Muniz what had happened, Muniz stated that he swerved to miss a

deer and hit the guardrail. Id. Muniz further explained that he was going to

try to change the tire so that he could drive away.      Id. at 11.   Sergeant

Garman testified that the damage to the vehicle was so severe that the

vehicle could not be driven away. Id.

      Sergeant Garman testified that he detected an odor of alcohol while

speaking with Muniz and that Muniz’s speech was slurred and his eyes were

“bloodshot and very glassy.”    Id. at 12.    He further testified that Muniz’s

responses to his questions were slow and deliberate, which are indicators of

impairment. Id. at 18-19. Sergeant Garman stated that Muniz appeared to

be impaired and that Muniz initially denied, but later admitted, consuming

alcohol. Id. at 13.

      Sergeant Garman, who has experience with crash investigation and

reconstruction, testified that he concluded that Muniz had not swerved to

avoid a deer because the tire marks indicated “that the driver was not in

control of the vehicle at the time the vehicle was sliding across the roadway,

not being steered by him.”     Id. at 17.    Sergeant Garman concluded that




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Muniz “was traveling too fast as he came around the corner and was unable

to control the vehicle.” Id.

       Upon being asked for license and registration, Muniz provided a

Pennsylvania identification card and stated that his license was suspended.

Id. at 18.      Sergeant Garman testified that Muniz performed three field

sobriety tests – lack of convergence, walk and turn, and one-leg stand. Id.

at 19.      Muniz’s performance on these tests furthered Sergeant Garman’s

belief that Muniz was impaired.          Id. at 19-26. Sergeant Garman arrested

Muniz for DUI. Id. at 26. While in custody, Muniz explained that the crash

had taken place within approximately the last three minutes. Id. at 13.

       On November 7, 2016, following a bench trial, the trial court convicted

Muniz of the aforementioned offenses and sentenced him to 3 to 6 months’

incarceration on the DUI conviction and a consecutive 90 days’ incarceration

on the conviction for driving while operating privilege is suspended. Muniz

timely filed a notice of appeal.

       Because counsel has filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Santiago,3 we must address counsel’s

petition    before   reviewing     the    merits   of   Muniz’s   underlying   claims.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007).                      We




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       3
           Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).



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first address whether counsel’s petition to withdraw satisfies the procedural

requirements of Anders. To be permitted to withdraw, counsel 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 that the
         defendant deems worthy of the court’s attention.

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

banc).

     Here, counsel has stated that after a conscientious examination of the

record, he believes this appeal would be wholly frivolous. Pet. to Withdraw,

4/25/17, at 1. Counsel furnished a copy of the Anders brief to Muniz, as

well as a letter advising Muniz that he could seek new counsel or proceed

pro se and “raise any points which [he] deems worth[y] of the Superior

Court’s attention in a[ddi]tion to the points” raised by counsel.      Ltr. to

Muniz, 2/3/17.    We conclude that counsel’s petition to withdraw complies

with the procedural dictates of Anders.

     We    next   address   whether    counsel’s   Anders   brief   meets   the

requirements established by the Pennsylvania 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;
         (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


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         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’s brief provided a summary of the procedural history and the

facts with appropriate citations to the record. Anders Br. at 5-7. Counsel’s

brief states that he conducted a thorough review of the record and

determined that any appeal would be frivolous, and set forth his reasons for

that conclusion.   Id. at 10-11.     Accordingly, counsel has substantially

complied with the requirements of Anders and Santiago.

      Muniz has not filed a pro se brief or a counseled brief with new,

privately-retained counsel.   We, therefore, review the issue raised in the

Anders brief.

      Muniz raises the following issue:       “Whether the Commonwealth

presented insufficient evidence as a matter of law in order to support

[Muniz]’s conviction of DUI, [driving while operating privilege is suspended,]

and driving vehicle at safe speed[.]” Anders Br. at 4.

      We apply the following standard when reviewing a sufficiency of the

evidence claim:

         [W]hether viewing all the evidence admitted at trial in the
         light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.         In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence. Any doubts regarding a


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         defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [finder] 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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)).

      At the conclusion of trial, the trial court summarized the testimony

and evidence it considered in arriving at its conclusion:

         I have listened to the testimony of Sergeant Garman, who
         is an experienced and trained police officer both in
         investigating [DUI] cases as well as in accident
         reconstruction.

            Sergeant Garman testified to the events that occurred
         on March 16th of 2016 in the area of 600 Rathton Road in
         York County at approximately 2:45 in the morning.

            Sergeant Garman testified that there was a single car
         accident that occurred. He testified to extensive damage
         to the car as well as damage to the guardrail that the car
         had evidently run into. He also testified in his experience
         and expertise in accident reconstruction that the car had
         not hit something prior to hitting the guardrail, and he
         made this determination on the basis of tire striation prior
         to the time the car hit the guardrail. He also pointed out
         in the video that we observed that the fluid path from the
         location of the guardrail being struck led back to the car
         that was driven by [Muniz] that was parked at 600
         Rathton.

            Sergeant Garman testified to initially seeing several
         indicators of driving under the influence. Those indicators


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           were glassy eyes, slurred speech, and a smell of alcohol.
           He then conducted two[4] field sobriety tests, the walk and
           turn test and the one legged stand test, and there is a
           videotape of the [S]ergeant conducting these tests. The
           videotape was observed by me. The videotape in my
           opinion clearly shows that Mr. Muniz is impaired when he
           attempts to perform those tests and is not able to perform
           those tests.

               Under all these circumstances, as well as after learning
           about [Muniz]’s prior driver’s license suspension, we find
           that [Muniz] is guilty of Count 1, driving under the
           influence of alcohol after imbibing a sufficient amount of
           alcohol that he was rendered incapable of safe driving;
           Count 3, driving while his operating license was suspended
           and DUI related; and Count 4, driving vehicle at a safe
           speed.

N.T., at 48-50. We agree. Further, the trial court was free to believe all of

Sergeant Garman’s uncontradicted testimony. See Best, 120 A.3d at 341

(quoting Harden, 103 A.3d at 111) (“[T]he [finder] of fact while passing

upon the credibility of witnesses . . . is free to believe all, part or none of the

evidence.”).     Therefore, we conclude that the evidence was sufficient to

sustain the convictions.

       Judgment of sentence affirmed.            Petition for leave to withdraw as

counsel granted.




____________________________________________


       4
        Sergeant Garman testified that he conducted three field sobriety
tests and indicated that Muniz failed two of those tests. N.T., at 19, 26.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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