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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 VAUGHN DANTE TYNER                        :
                                           :
                     Appellant             :   No. 3780 EDA 2016

        Appeal from the Judgment of Sentence September 15, 2016
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0003314-2016

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                FILED MAY 04, 2018

      Vaughn Dante Tyner appeals from the judgment of sentence of

seventy-two hours to six months imprisonment, plus community service,

fines, and costs, after he was convicted of driving under the influence

(“DUI”). Appellant’s counsel has filed an application to withdraw and a brief

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

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

counsel’s application to withdraw and remand for counsel to file an

advocate’s brief.

      The trial court summarized the underlying facts as follows.

           On February 19, 2016, Trooper [Tyrone] Bradley was
      working the 11 pm to 7 am shift along with his partner Trooper
      Woody. Trooper Bradley was patrolling I-95 southbound in a
      marked state police vehicle, when he observed a red mustang in
      the middle lane, traveling at [a] high rate of speed in the area of
      Exit 3, which is located in Chester, Delaware County,
      Pennsylvania.    Further, Trooper Bradley observed that the
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     vehicle weaved within its lane of travel before crossing over the
     dotted white lines with the passenger-side tires, and then began
     driving in between the middle and right lanes. Trooper Bradley
     followed the vehicle and clocked it going 83 miles per hour in a
     55 mile[-]per[-]hour zone.1
           ______
           1   [The Commonwealth offered into evidence] a
           Pennsylvania Department of Transportation, the Bureau of
           Motor Vehicles certificate of speedometer accuracy.
           [Trooper Bradley] further explained that his vehicle’s
           speedometer was tested and calibrated on September 2,
           2015.

            Trooper Bradley subsequently noticed the red mustang,
     which was still traveling at a high-rate of speed, cross the white
     line a second time. At this time Trooper Bradley activated his
     lights and sirens and initiated a traffic stop on South I-95 at mile
     marker 0.3, which is located in Lower Chichester Township,
     Delaware County, Pennsylvania. The driver complied by pulling
     over.

           Next, Trooper Bradley, along with Trooper Woody
     approached the red mustang. Trooper Bradley approached the
     driver, who he learned to be [Appellant], and introduced himself
     as a Pennsylvania State Trooper.        Trooper Bradley asked
     Appellant for his driver’s license, registration, and insurance
     card, while proceeding to explain to Appellant his reasoning for
     pulling him over. Trooper Bradley observed that Appellant did
     not appear to be focused when locating the requested
     documents.     Moreover, Appellant asked Trooper Bradley to
     repeat the documents needed.

           While speaking with Appellant, Trooper Bradley detected
     an odor of alcohol on his breath. Additionally, Trooper Bradley
     detected a strong odor of burnt marijuana coming from within
     the vehicle, and observed that Appellant’s eyes were bloodshot,
     red, glassy, and that his pupils were dilated. When asked about
     the odor of marijuana, Appellant stated that there was no
     marijuana in the vehicle, but that he had smoked it in the car
     with some friends earlier that evening. When asked if he had
     consumed any alcoholic beverages that evening, Appellant
     stated that he had one tequila sunrise and then one double-shot
     of rum and coke.



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             At this point, Trooper Bradley asked Appellant to exit the
       vehicle to perform standardized field sobriety tests. Trooper
       Bradley started with the horizontal gaze nystagmus test. Next,
       Trooper Bradley asked Appellant to perform the walk-and-turn
       test. In regard to the walk-and-turn test, while giving Appellant
       the instructions, Trooper Bradley observed that Appellant visibly
       swayed, could not keep his balance. During the first series of 9
       steps, Trooper Bradley observed that Appellant lost his balance,
       did not walk in a straight line, raised his arms, did not touch
       heel-to-toe, and completed an improper turn. On the second
       series of steps, there was no heel-to-toe, Appellant raised his
       arms for balance, did not walk in a straight line, and did not
       count aloud as instructed.

             Next, Trooper Bradley conducted the on[e]-legged stand
       test. Again, he walked through the instructions with Appellant.
       During the test, Trooper Bradley observed that Appellant visibly
       swayed, put his foot down several times, could not keep his
       balance and raised his arms. At this point, Trooper Bradley
       stopped the administration of the field sobriety tests.

             Based on Trooper Bradley’s observations of Appellant on
       the road, his contact of Appellant’s person, Appellant’s
       performance on the field sobriety tests, and Appellant’s
       admission to consuming alcohol and smoking marijuana, Trooper
       Bradley believed that Appellant was incapable of safe driving and
       placed him under arrest for driving under the influence.

Trial Court Opinion, 3/6/17, at 2-4 (citations omitted).

       Appellant proceeded to a non-jury trial on DUI—general impairment,

75 Pa.C.S. § 3802(a)(1), and DUI—controlled substance (impairment), 75

Pa.C.S. § 3802(d)(2),1 as well as several summary offenses. The trial court


____________________________________________


1The Commonwealth had originally charged Appellant with a violation of 75
Pa.C.S. § 3802(d)(1)(iii) (DUI—controlled substance (metabolite)), but did
not proceed on that count after the trial court excluded blood test results
under Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).



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found Appellant guilty of both DUI charges.2           Appellant was sentenced as

indicated above, and filed a timely post-sentence motion. After its denial,

Appellant filed a timely notice of appeal, and both Appellant and the trial

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

       In this Court, Appellant’s counsel filed both an Anders brief and an

application to withdraw as counsel.            Accordingly, the following principles

guide our review of this matter.

              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.

              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.

____________________________________________


2Appellant was also convicted of exceeding the 55-mile-per-hour speed limit
by 28 miles per hour and fined accordingly. 75 Pa.C.S. § 3362(a)(2), (c).



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

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

        [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.

Santiago, supra, at 361.

        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.3         Therefore, 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.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super.

2015) (quoting Santiago, supra, at 354 n.5).

        In the Anders brief, counsel presents the following issue of arguable

merit: “[t]he evidence was insufficient to convict [Appellant] of the offenses

at issue herein since the evidence was so weak and inconclusive that a


____________________________________________


3   Appellant has not filed a response to counsel’s application.



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reasonable trier of fact would not have been satisfied of his guilt.” Anders

brief at 6.

        We review this issue mindful of the following. “Our standard of review

of a sufficiency of the evidence claim is whether, 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.        Commonwealth v. Sales, 173 A.3d

825, 828 (Pa.Super. 2017) (citation and quotation marks omitted).

        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 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. Williams, 153 A.3d 372, 375 (Pa.Super. 2016)

(quoting Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super.

2014)).

        Appellant was convicted under the following provisions of the Vehicle

Code:




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      (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.

            . . . .

      (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:

            . . . .

            (2) The individual is under the influence of 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.

75 Pa.C.S. § 3802.

      Hence, to meet its burden of proof under subsection 3802(a)(1), the

Commonwealth was required to prove beyond a reasonable doubt that

Appellant’s substantially-impaired ability to drive safely was caused by

alcohol consumption.      Commonwealth v. Mobley, 14 A.3d 887, 890

(Pa.Super. 2011).      To establish that Appellant was guilty of violating

subsection 3802(d)(2), the Commonwealth similarly had to prove causation,

i.e., that Appellant’s inability to drive safely was caused by the influence of a

drug or combination of drugs. Commonwealth v. Tarrach, 42 A.3d 342,

345 (Pa.Super. 2012). Upon review of the record, we find that Appellant is




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able to make a non-frivolous argument that the evidence was insufficient to

establish the causation.

      Expert testimony is not always required to establish that impairment

was caused by a controlled substance; rather, the necessity for such

evidence depends on the specific facts of the case.       Commonwealth v.

Griffith, 32 A.3d 1231, 1238 (Pa. 2011).

      Relevant to our review is Commonwealth v. Gause, 164 A.3d 532

(Pa.Super. 2017) (en banc), a case decided after counsel filed her Anders

brief. In Gause, the Commonwealth offered evidence that, when Gause was

stopped for a traffic violation, the officer smelled alcohol, and Gause

admitted to having consumed beer. Id. at 535. Gause also exhibited eyelid

tremors, which the officer indicated was indicative of marijuana use. Id. at

536. Another officer who had administered sobriety tests opined that Gause

was impaired by both alcohol and marijuana. Id. at 537.

      On appeal, this Court vacated Gause’s convictions under subsections

(a)(1) and (d)(2) of the DUI statute, which are the same two offenses at

issue in the instant case. This Court first held that the lay opinion testimony

offered by the officers as to causation was improper. We determined that,

based upon the lack of physical evidence of marijuana use, and “no

admission from Gause that he had recently smoked marijuana,” the officer’s

“observations did not obviate the necessity of an expert to explain whether

‘eye tremors,’ or ‘body tremors,’ would indicate that someone was under the



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influence of marijuana and that this impaired his ability to safely drive[.]”

Id. at 539 (emphasis omitted). Without the improperly-admitted lay opinion

testimony, “there was a total lack of proof that Gause was under the

influence of a drug to a degree that his ability to safely drive was impaired.”

Id. at 540. Further, this Court concluded that the record did not support a

finding that Gause was under the influence of alcohol to a degree that

rendered him incapable of driving safely. Id. at 541-42.        Accordingly, we

vacated    Gause’s   convictions   under   both   subsections   3802(d)(2)   and

3802(a)(1).

      Here, the only witness offered by the Commonwealth was Trooper

Bradley.      Although he testified to having personal and professional

experience observing people under the influence of alcohol, controlled

substances, or both, and that he has received extensive training in

administering field sobriety tests, Trooper Bradley was neither offered nor

accepted as an expert witness. N.T. Trial, 8/15/16, at 6-8.

      As detailed above, Trooper Bradley offered extensive testimony that

Appellant was not sober. He also opined, based upon Appellant’s physical

condition and “basically his admissions of consuming alcoholic beverages

and smoking marijuana,” that Appellant was incapable of safely driving. Id.

at 17. However, the record is not clear that Trooper Bradly offered, or was

necessarily qualified to offer, opinion testimony that Appellant independently

was impaired by alcohol and or independently impaired by marijuana.



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     Appellant was neither tried nor convicted for violating the portion of

the DUI statute that prohibits a person from operating a vehicle if “[t]he

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.” 75 Pa.C.S. § 3802(d)(3). A violation of that subsection could be

present where neither the alcohol nor drug effects alone caused substantial

impairment. As this Court has recognized, “a person may consume a small

amount of alcohol which by itself would not cause the person to violate [the

DUI statute] and yet when combined with a controlled substance would

render that same person incapable of safe driving in violation of” the

subsection addressing the combined influence of drugs and alcohol.

Commonwealth v. Plybon, 421 A.2d 224, 226 (Pa.Super. 1980).

     Rather, to sustain his respective subsection 3802(a)(1) and (d)(2)

convictions, the record must contain evidence sufficient to establish that

Appellant was incapable of safe driving because of alcohol impairment, and

unable to drive safely due to impairment by a drug or combination of drugs.

It is not readily apparent that the Commonwealth did so.      Given that the

only evidence as to the amount of intoxicants consumed by Appellant is his

admission that he had smoked marijuana in the vehicle with some friends

“earlier that night,” and that, at some unspecified time in the past “he had

one tequila sunrise and then one double shot of rum and coke,” N.T. Trial,



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8/15/16, at 13, it is arguable that the Commonwealth could not prove the

violations without expert testimony differentiating and quantifying the

effects of the substances Appellant consumed.

         By no means are we convinced that the evidence was insufficient to

support Appellant’s convictions. However, a sufficiency challenge is not so

clearly devoid of merit to warrant classifying this appeal as frivolous,

especially in light of the Gause decision that was addressed by neither

party.    From our review, it appears that counsel has the factual and legal

bases to put forward a good-faith argument that the evidence was

insufficient to sustain the DUI convictions.4

         Accordingly, we deny counsel’s application for leave to withdraw and

remand the case for counsel to file an advocate’s brief within 60 days of the

date of this memorandum. The Commonwealth may file a brief in response

within 30 days thereafter.

         Nicholena A. Iacuzio, Esquire’s application to withdraw appearance

denied. Case remanded with instructions. Panel jurisdiction retained.

____________________________________________


4 Due to our conclusion that the issue identified by counsel is not frivolous,
we need not examine the record for additional non-frivolous issues. See
Commonwealth v. Blauser, 166 A.3d 428, 434 (Pa.Super. 2017)
(requiring counsel to file merits brief due to a finding that one of the issues
set forth in the Anders brief was not wholly frivolous; panel did not proceed
to independently examine record for additional issues). We also note that
our order directing a merits brief “does not represent sub silentio a
conclusion     that  no    other    arguably    meritorious    issues    exist.”
Commonwealth v. Tejada, 176 A.3d 355, 362 (Pa.Super. 2017).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




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