Com. v. Sliker, C. ( 2019 )

J-S64037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CANDY ANN SLIKER :
:
Appellant : No. 968 WDA 2019
Appeal from the Judgment of Sentence Entered June 5, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000653-2018
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 10, 2019
Candy Ann Sliker (Sliker) appeals from the judgment of sentence
entered in the Court of Common Pleas of Erie County (trial court) after her
conviction of Driving Under the Influence (DUI), General Impairment, 75
Pa.C.S. § 3802(a)(1), and related charges.1 Sliker’s counsel seeks to
withdraw from representation pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We affirm the judgment of sentence and grant counsel’s petition to withdraw.
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* Retired Senior Judge assigned to the Superior Court.
1 The related charges included DUI, Highest Rate, 75 Pa.C.S. § 3802(c);
Driving Vehicle at Unsafe Speed, 75 Pa.C.S. § 33361; and Disorderly Conduct,
18 Pa.C.S. § 5503.
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We take the following background facts and procedural history from the
trial court’s August 8, 2019 opinion and our independent review of the record.
The Commonwealth charged Sliker with the above crimes for an incident that
occurred on January 24, 2018, at approximately 10:56 P.M.
At the March 29, 2019 bench trial, Edwin Bogert (Bogert) testified that
on the night in question, he called 911 because he heard a crash, observed
snow flying, and saw a pickup truck cross Sciota Street before it rested in a
swamp on the side of the road. (See N.T. Trial, 3/29/19, at 7-8). Officers
Brett Sproveri and Jordan Kitchen of the Corry City Police Department testified
that they were dispatched to the scene. (See id. at 13, 36-37). At the scene,
the officers observed Sliker standing thigh-deep in swampy water on the
driver’s side of a partially submerged blue pickup truck, which later was
determined to be registered to her. (See id. at 14-15, 17, 37).
Once the officers exited their vehicle, Sliker immediately asked them if
they had caught the driver. (See id. at 15, 37). In spite of this question, the
officers did not see any evidence that any other person had been present.
Officer Sproveri testified that as he and Officer Kitchen approached Sliker,
they were breaking the thin ice, but there was no broken ice evidencing that
anyone had fled from the vehicle and “no evidence whatsoever that there was
another occupant in that vehicle.” (Id. at 16). Officer Kitchen testified to the
same observations. (See id. at 37) (Officer Kitchen stating that that he did
not observe any sign that anyone else had either been in the vehicle or fled
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the scene, noting there were no “footprints, any disturbed brush, [nor] any
broken ice.”); (see also id. at 8) (Bogert testifying he did not observe anyone
leave the vehicle and only saw Sliker exit it when the police arrived.).
As the officers approached Sliker to assist her out of the water, they
detected a strong odor of alcohol emanating from her and they noted that her
speech was slurred. (See id. at 18, 24-25, 37). Sliker stated that she thought
she had sustained a back injury and some other minor injuries. (See id. at
18). The officers called an ambulance to transport Sliker to Corry Memorial
Hospital. (See id.).
When informed by Officer Sproveri at the hospital that she would be
arrested for DUI based on evidence that she was intoxicated and had been
driving the vehicle, Sliker “began screaming profanities, [and became] very
belligerent [and] uncontrollable”. (Id at 26; see id. at 25, 38). As the officer
read her the DL-26 chemical test warning for a blood draw, Sliker “continued
to yell, scream, [and] holler.” (Id. at 27). The officers contacted their
supervisor, Sergeant Tommy Bebee. He came to the hospital and, as he read
the DL-26 form to Sliker again, she “began hitting and trying to strike [him,]
mak[ing] contact with him a couple of times[.]” (Id. at 28). Ultimately, Sliker
refused the blood test. (See id.). Following the refusal, the officers obtained
a search warrant and testing revealed that Sliker’s BAC was 0.187%. (See
id. at 28-29).
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Sliker testified that she was not operating the pickup truck on the night
in question and only drank two beers and a shot in the two-and-a-half hours
prior. (See N.T. Trial, supra at 42, 44). She maintained that the individual
who had been driving fled the scene after the accident because he was not
permitted to drive. (See id. at 46). Sliker’s best friend, Vera Campbell, stated
that she was drinking with Sliker for several hours and then saw her get in
her pickup truck with an unknown individual in the driver’s seat. (See id. at
55-58).
At the conclusion of the non-jury trial, based on its consideration of the
evidence, the court stated that there was “no doubt in [its] mind that [Sliker]
was the driver of her own truck that evening, and was intoxicated.” (N.T.
Trial, at 62). It found the testimony of Sliker and Campbell to be incredible
and found the testimony of Bogert and Officers Sproveri and Kitchen to be
“one hundred percent credible.” (Id. at 63).
The court sentenced Sliker to six months in a restrictive intermediate
punishment program with thirty days electronic monitoring and one year of
probation. Sliker filed a timely notice of appeal and counsel filed a statement
of intent to file an Anders brief in lieu of a Rule 1925(b) statement. See
Pa.R.A.P. 1925. Appointed counsel has filed an Anders brief and petition to
withdraw.
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Before reaching Sliker’s issue, we must consider counsel’s request to
withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009). It is well-settled that:
Court-appointed counsel who seek to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous 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) file a brief
referring to anything that arguably might support the appeal but
which does not resemble a “no-merit” letter or amicus curiae brief;
and (3) furnish a copy of the brief to the defendant and advise the
defendant of his or her right to retain new counsel or raise any
additional points that he or she deems worthy of the court’s
attention.
Id. (citations omitted). Further, our Supreme Court ruled in Santiago,
supra, that Anders briefs must contain “a discussion of counsel’s reasons for
believing that the client’s appeal is frivolous[.]” Santiago, supra at 360.
Instantly, counsel’s Anders brief and application to withdraw
substantially comply with the applicable technical requirements and reveal
that he has made “a conscientious examination of the record [and] determined
that the appeal would be frivolous[.]” Lilley, supra at 997 (citation omitted).
Additionally, the record establishes that counsel served Sliker with a copy of
the Anders brief and application to withdraw and a letter of notice, which
advised her of her right to retain new counsel or to proceed pro se and raise
additional issues to this Court. See id.; (see also Petition for Leave to
Withdraw as Counsel, 9/23/19, Exhibit A, at 1). In addition, the petition and
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brief cite “to anything that arguably might support the appeal[.]” Lilley,
supra at 997 (citation omitted); (see also Anders Brief, at 4-8). As noted
by our Supreme Court in Santiago, the fact that some of counsel’s statements
arguably support the frivolity of the appeal does not violate the requirements
of Anders. See Santiago, supra at 360-61.
Having concluded that counsel’s petition and brief comply with the
technical Anders requirements, we must “conduct [our] own review of the
trial court’s proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation
omitted).
Sliker argues that the Commonwealth failed to provide sufficient
evidence to sustain the DUI convictions. (See Anders Brief, at 6-7).
Specifically, she maintains that the Commonwealth did not establish that she
was driving the vehicle on the night in question. (See id.).2
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2 “The standard we apply in reviewing the sufficiency of evidence 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 factfinder to find
every element of the crime beyond a reasonable doubt.” Commonwealth v.
Bowen, 55 A.3d 1254, 1260 (Pa. Super. 2012) (citation omitted). “In
applying [the above] test, we may not weigh the evidence and substitute our
judgment for that of the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not preclude every
possibility of innocence.” Id. (citation omitted). “Any doubts regarding a
defendant’s guilt may be resolved by a 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.” Id. (citation omitted). “The
Commonwealth may sustain its burden of proving every element of the crime
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To establish the crime of DUI, General Impairment and Highest Rate,
the Commonwealth must prove that the defendant “was driving, operating, or
in actual physical control of the movement of a vehicle” and that her blood
alcohol was over 0.16% within two hours of her driving. See
Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013), appeal
denied, 79 A.3d 1098 (Pa. 2013) (citation omitted); see also 75 Pa.C.S. §§
3802(a)(1), (c).
In support of its case, the Commonwealth may offer evidence of “the
offender’s actions and behavior, including manner of driving and ability to pass
field sobriety tests; demeanor, including toward the investigating officer;
physical appearance, particularly bloodshot eyes and other physical signs of
intoxication; odor of alcohol, and slurred speech.” Teems, supra at 145
(citation omitted). “The weight to be assigned these various types of evidence
presents a question for the fact-finder, who may rely on his or her experience,
common sense, and/or expert testimony.” Id. (citation omitted).
Here, the Commonwealth offered evidence that upon their arrival at the
scene of the accident, Officers Sproveri and Kitchen observed that Sliker was
the only individual present, with no evidence that anyone else had been in the
____________________________________________
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.” Id. (citation omitted).
“Finally, the trier 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.” Id. (citation omitted).
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truck or had fled the scene. Sliker was standing thigh-deep in a swamp on
the driver’s side of her partially submerged pickup truck. She smelled of
alcohol and slurred her speech. Before landing in the swamp to the west side
of the road, the pickup truck had struck a snowbank on the east side of the
road, gone out of control, and crossed the roadway. Upon being told that she
was being arrested for DUI, Sliker became very belligerent, verbally and
physically assaulting the police at the hospital. A blood test performed after
the execution of a search warrant revealed that Sliker’s BAC was 0.187%.
Importantly, the trial court found the above evidence presented by the
Commonwealth witnesses 100% credible, and Sliker and her version of events
wholly incredible, a finding we will not disturb where it is supported by the
record. See Commonwealth v. Lynn, 192 A.3d 194, 199 (Pa. Super. 2018)
(“Where issues of credibility and weight of the evidence are concerned, it is
not the function of the appellate court to substitute its judgment based on a
cold record for that of the trial court.”) (citation omitted); see also Bowen,
supra at 1260.
Therefore, we conclude, based on the foregoing evidence, that the trial
court properly found it was sufficient to support a conviction of DUI-General
Impairment and Highest Rate. We concur with counsel’s determination that
Sliker’s issue on appeal is wholly frivolous. See Bowen, supra at 1260;
Lilley, supra at 998. Additionally, we find no other non-frivolous issues that
would merit relief.
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Judgment of sentence affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2019
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