J-S66033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MILTON D. RODRIGUEZ

                            Appellant                No. 549 MDA 2016


             Appeal from the Judgment of Sentence March 3, 2016
                 in the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003013-2015


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 13, 2016

        Milton D. Rodriguez (“Appellant”) appeals from a March 3, 2016

judgment of sentence entered in the Berks County Court of Common Pleas

following his conviction for multiple counts of driving under the influence

(“DUI”).1    Appellant’s counsel has filed an Anders2 brief, together with a

petition to withdraw as counsel. We affirm the judgment of sentence and

grant counsel’s petition to withdraw.

        We summarize the facts and procedural history of this case as follows.

On February 10, 2015, police responded to Reservoir Road, Muhlenberg

Township, Berks County, where they observed a white BMW automobile
____________________________________________


1
  75 Pa.C.S. § 3802(d)(1)(i), 75 Pa.C.S. § 3802(d)(1)(ii), 75 Pa.C.S. §
3802(d)(iii), and 75 Pa.C.S. § 3802(d)(2).
2
    Anders v. California, 386 U.S. 738 (1967).
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stopped in the middle of the roadway.            Appellant was unconscious in the

driver’s seat. Emergency medical personnel arrived on the scene, succeeded

in waking Appellant, and transported him via ambulance to the hospital.

During the ambulance drive, Appellant informed the emergency medical

personnel that he had consumed Xanax, Oxycodone, Oxycontin, and three

bags of heroin.      At the hospital, police read Appellant an implied consent

form, and Appellant verbally consented to a blood draw for chemical testing.

The chemical testing later revealed morphine, heroin, and its metabolites in

Appellant’s blood.

       On March 3, 2016, the trial court conducted a bench trial, found

Appellant guilty of four counts of DUI, and sentenced Appellant to three to

six months’ incarceration with a credit for ninety (90) days’ time served.3

On March 4, 2016, Appellant filed a post-sentence motion alleging the

verdicts were against the weight of the evidence. The trial court denied the

motion on March 8, 2016. On April 5, 2016, Appellant filed a timely notice

of appeal. On April 22, 2016, Appellant’s counsel filed a statement of intent

to file an Anders brief in lieu of a concise statement of matters complained

of on appeal. See Pa.R.A.P. 1925(c)(4). On April 28, 2016, the trial court

filed a statement in lieu of a Pa.R.A.P. 1925(a) opinion that simply concurred

with counsel’s assessment that Appellant’s appeal lacked merit. Id.

____________________________________________


3
  The trial court sentenced Appellant on only one count of DUI.              The
remaining three DUI convictions merged for sentencing purposes.



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        As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.4              Before

addressing the merits of Appellant’s underlying issue presented, we must

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).

        Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

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 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 must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her right to “(1) retain new counsel to pursue the appeal;

(2) proceed pro se on appeal; or (3) raise any points that the appellant

deems worthy of the court’s attention in addition to the points raised by

counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super.2007).         Substantial compliance with these requirements is
____________________________________________


4
    978 A.2d 349 (Pa.2009).



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sufficient.   Commonwealth        v.   Wrecks,     934   A.2d   1287,   1290

(Pa.Super.2007). “After establishing that the antecedent requirements have

been met, this Court must then make an independent evaluation of the

record to determine whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

      Instantly, counsel filed a petition to withdraw as counsel. The petition

states counsel drafted and filed an Anders brief after determining that there

were no non-frivolous issues to be raised on appeal.         See Petition to

Withdraw as Counsel, p. 1.      The petition further explains that counsel

notified Appellant of the withdrawal request, supplied him with a copy of the

Anders brief, and sent Appellant a letter explaining his right to proceed pro

se or with new, privately-retained counsel to raise any additional points or

arguments that Appellant believed had merit. See Petition to Withdraw as

Counsel, p. 2; Letter to Appellant, June 6, 2016, attached to Petition to

Withdraw as Counsel. In the Anders brief, counsel provides a summary of

the facts and procedural history of the case with citations to the record,

refers to evidence of record that might arguably support the issue raised on

appeal, provides citations to relevant case law, and states her conclusion

that the appeal is wholly frivolous and her reasons therefor.    Accordingly,

counsel has substantially complied with the requirements of Anders and

Santiago.




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      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issues of

arguable merit raised in the Anders brief:

   A. Whether the verdicts were against the weight of the evidence in
      that the testimony of Officer Waits was not credible concerning
      [Appellant’s] consent to give blood and it was contradicted by
      the testimony of the lab assistant[?]

   B. Whether the trial court erred in admitting testimony, over
      defense objection, of [Appellant’s] statement made to
      emergency medical personnel[?]

Anders Brief, p. 5.

      Appellant’s first claim challenges the weight of the evidence.       See

Anders Brief, pp. 9-11.      Our review of this issue is governed by the

following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).


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      Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice, “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).       Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.   Widmer, 744 A.2d at 753.       When reviewing the

trial court’s determination, we give the gravest deference to the findings of

the court below. We review the court’s actions for an abuse of discretion.

Id.

      Here, the Commonwealth presented the testimony of Muhlenberg

Township Police Officer James Waits and Cynthia Ann Culbreath-Williams,

the phlebotomist who performed Appellant’s blood draw, at trial.         Officer

Waits testified Appellant verbally consented to the blood draw.             Ms.

Culbreath-Williams, on the other hand, testified only to protocol and

indicated that hospital protocol requires a signed consent to draw blood.

“[T]he trier of fact[,] while passing on the credibility of witnesses and the

weight of the evidence produced, is free to believe all, part or none of the

evidence.”   Commonwealth v. Levy, 83 A.3d 457, 461 (Pa.Super.2013)

(quoting     Commonwealth       v.    Williams,    871    A.2d    254,      259

(Pa.Super.2005)). To the extent Officer Waits’ and Ms. Culbreath-Williams’

testimony presented minor inconsistencies, such minor inconsistencies are

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for the finder of fact to resolve and do not warrant relief.       See, e.g.,

Commonwealth v. Stokes, 78 A.3d 644, 651 (Pa.Super.2013) (minor

inconsistencies in testimony are for jury to resolve). The trial court heard

and reviewed this testimony and, pursuant to its prerogative as finder of

fact, resolved any inconsistencies in the Commonwealth’s favor.            This

determination is adequately supported by the other evidence admitted

during trial and does not shock this Court’s sense of justice.    Appellant’s

weight of the evidence claim fails.

      Next, Appellant argues the trial court erred by admitting into evidence

Appellant’s statement to emergency medical personnel over Appellant’s

objection.   See Anders Brief, pp. 11-12.    This Court has stated the well-

established standard of review for admission of evidence claims as follows:

      The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.        To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012).

      Hearsay is an out-of-court statement that a party offers in evidence to

prove the truth of the matter asserted in the statement.         Pa.R.E. 801.

Generally speaking, hearsay is inadmissible at trial. Pa.R.E. 802. However,

“[t]he medical treatment exception provides that testimony repeating out-

of-court statements made for the purposes of receiving medical treatment


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are admissible as substantive evidence.” Commonwealth v. Belknap, 105

A.3d 7, 11 (Pa.Super.2014), appeal denied, 117 A.3d 294 (Pa.2015)

(quoting Commonwealth v. Fink, 791 A.2d 1235, 1246 (Pa.Super.2002)).

      Here, during active treatment, Appellant told emergency medical

personnel who had found him unconscious that he had ingested Xanax,

Oxycodone, Oxycontin, and heroin.           The trial court properly admitted

Appellant’s statements under the medical treatment hearsay exception.

Appellant’s claim to the contrary fails.

      Given the foregoing, Appellant’s claims that his conviction was against

the weight of the evidence and that the trial court erred by admitting his

statement to emergency medical personnel fail.       Further, our independent

review of the record has revealed no non-frivolous claims that Appellant

could have raised, and we agree with counsel that this appeal is wholly

frivolous. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.          Counsel’s petition to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




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