Com. v. Finneran, E. ( 2022 )

J-S35033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERICA LYNN FINNERAN :
:
Appellant : No. 885 MDA 2022
Appeal from the Judgment of Sentence Entered June 3, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003056-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 10, 2022
Appellant Erica Lynn Finneran appeals from the judgment of sentence
entered by the Court of Common Pleas of Dauphin County after Appellant was
convicted of Driving while Under the Influence of a Controlled Substance in
violation of 75 Pa.C.S.A. § 3802(d)(1)(i). Counsel has filed a petition to
withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d
349 (2009) (hereinafter “Anders brief”). We affirm the judgment of sentence
and grant counsel’s petition to withdraw.
On March 29, 2020, Pennsylvania State Police Corporal Darren Mordorf
seized Appellant’s vehicle, after finding Appellant had stopped in the travel
lane of State Route 225 in the area of Bastian Road. Notes of Testimony (N.T.),
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S35033-22
Trial, 4/1/22, at 5-8. Thereafter, at approximately 8:50 p.m., Trooper Kyle
Kinney was summoned to the scene to provide assistance and he approached
the driver side of Appellant’s vehicle. N.T. at 7.
Trooper Kinney immediately observed an odor of marijuana emanating
from the vehicle and noticed that Appellant was speaking very quickly and her
eyes were bloodshot with dilated pupils. N.T. at 7. Based on these
observations, Trooper Kinney required Appellant to exit her vehicle to perform
field sobriety testing such as the horizontal gaze nystagmus test, the walk and
turn test, the one-leg stand test, and the lack of convergence test. N.T. at 9-
10. After Appellant exhibited multiple signs of impairment during field sobriety
testing, she admitted that she had smoked marijuana earlier that day and had
been taking a prescription amphetamine. N.T. at 11.
At that point, Trooper Kinney placed Appellant under arrest for suspicion
of DUI and transported her for a blood draw at the state police barracks. N.T.
at 11-13. Appellant consented to the blood test, which was performed at 9:44
p.m. and showed the presence of Delta-9 THC, the active ingredient for
marijuana, as well as amphetamines. N.T. at 12-14.
After Appellant was placed under arrest and charged with DUI, Appellant
filed no pretrial motions. While initially Appellant was scheduled to enter a
guilty plea, she ultimately decided to proceed to a bench trial. Trooper Kinney
testified for the prosecution and Appellant testified on her own behalf, claiming
she has been prescribed medical marijuana.
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On April 1, 2022, the trial court found Appellant guilty of DUI and
ordered the preparation of a pre-sentence investigation report (PSI). On June
3, 2022, the trial court sentenced Appellant to six months’ restrictive
probation with the first 72 hours on electronic monitoring/house arrest and
also imposed a fine and costs. Appellant did not file a post-sentence motion.
On June 15, 2022, Appellant filed this notice of appeal.
On June 20, 2022, the trial court ordered Appellant to file a Concise
Statement of Errors on Appeal pursuant to Pa.R.A.P. 1925(b). Thereafter, on
July 6, 2022, counsel filed notice of his intent to file an Anders brief in lieu of
a concise statement. As such, the trial court did not prepare a responsive
Pa.R.A.P. 1925(a) opinion.
We must first evaluate counsel's request to withdraw before reaching
the merits of the case. Commonwealth v. Washington, 63 A.3d 797, 800
(Pa.Super. 2013); see also Commonwealth v. Rojas, 874 A.2d 638, 639
(Pa.Super. 2005) (stating, “[w]hen faced with a purported Anders brief, this
Court may not review the merits of the underlying issues without first passing
on the request to withdraw”) (citation omitted).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on appeal pursuant to which 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.
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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). We further review counsel's Anders brief for
compliance with the requirements set forth in the Supreme Court’s decision in
Santiago:
[W]e hold that in 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, 602 Pa. at 178-79, 978 A.2d at 361.
The Supreme Court in Santiago clarified that Anders does not
“require[] that counsel's brief provide an argument of any sort, let alone the
type of argument that counsel develops in a merits brief. [W]hat the brief
must provide under Anders are references to anything in the record that
might arguably support the appeal.” Id. at 176, 978 A.2d at 359-360.
Moreover, counsel must provide a copy of the Anders brief to his client.
“Attending the brief must be a letter that advises the client of his 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. Orellana, 86 A.3d 877, 880 (Pa.Super. 2014) (quoting
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super. 2007)).
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In this case, counsel filed an Anders brief with his application to
withdraw as counsel, in which he states that he made a conscientious
examination of the record and determined there are no non-frivolous grounds
for the appeal. We find counsel’s brief and petition substantially comply with
the technical requirements of Anders and Santiago.
Moreover, counsel provided this Court with a copy of the letter which he
sent to Appellant advising her of her right to retain new counsel or to proceed
pro se to raise any points that she deems worthy of this Court's attention. See
Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore, we
proceed to examine the issue counsel identified in the Anders brief and then
conduct “a full examination of all the proceedings, to decide whether the case
is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195
(Pa.Super. 2018) (en banc) (quotation omitted).
As noted above, in response to the trial court’s 1925(b) order, counsel
filed a statement of his intent to file an Anders brief and noted that Appellant
wished to challenge the sufficiency of the evidence supporting her DUI
conviction. Counsel also noted that Appellant had not preserved any other
claims in the lower court for appeal.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
When reviewing a challenge to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the
Commonwealth as verdict winner, giving it the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751
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(2000). “Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Lynch, 72 A.3d 706, 708 (Pa.Super.
2013) (en banc) (citation omitted). Any doubt about the
defendant's guilt is to be resolved by the fact-finder unless the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined circumstances.
See Commonwealth v. DiStefano, 782 A.2d 574, 582
(Pa.Super. 2001). Additionally, the Commonwealth may sustain
its burden solely by means of circumstantial evidence. Lynch, 72
A.3d at 708.
Commonwealth v. Lake, 281 A.3d 341, 345–46 (Pa.Super. 2022).
Appellant was charged with DUI under Section § 3802(d)(1) of the
Vehicle Code, which provides that:
[a]n individual may not drive, operate or be in actual physical
control of the movement of a vehicle under any of the following
circumstances:
(i) Schedule I controlled substance, as defined in the act of April
14, 1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device, and Cosmetic Act [(“CSA”)];
(ii) Schedule II or Schedule III controlled substance, as defined in
[the CSA], which has not been medically prescribed for the
individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
75 Pa.C.S.A. § 3802(d)(1).
Thus, Section 3802(d)(1) prohibits an individual from driving after using
a Schedule I controlled substance. To sustain a conviction under this Section
3802(d)(1) on this basis, the Commonwealth must provide that the defendant,
at the time of driving, had in his blood either (1) the active compound of a
Schedule I drug or (2) a metabolite of a Schedule I drug. Commonwealth v.
Given, 244 A.3d 508, 511 (Pa.Super. 2020). The CSA classifies marijuana or
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“marihuana” as a Schedule I controlled substance. 35 P.S. § 780-104(1)(iv).
This Court has noted that Delta-9-THC is the active compound in marijuana.
Given, 244 A.3d at 509. It is also important to recognize that under Section
3802(d)(1), proof of actual impairment is not required. Commonwealth v.
Dabney, 274 A.3d 1283, 1288 (Pa.Super. 2022) (citations omitted).
The record contains ample evidence to support Appellant’s conviction
under Section 3802(d)(i). Troopers found Appellant in physical control of her
vehicle, which was blocking the travel lane of SR225. As Appellant
demonstrated indicators of impairment, failed sobriety testing and admitted
to smoking marijuana earlier that day, the troopers placed Appellant under
arrest and requested that she submit to a blood draw. Appellant consented to
the blood draw, which showed that her blood contained Delta 9-THC, the
active ingredient in marijuana, at the time she had been driving.
We acknowledge that Appellant had claimed at trial that she had been
prescribed medical marijuana. However, the Vehicle Code provides that “[t]he
fact that a person charged with [DUI] is or has been legally entitled to use
alcohol or controlled substances is not a defense to a charge of [DUI].” 75
Pa.C.S.A. § 3810. In a recent en banc decision, Commonwealth v. Stone,
273 A.3d 1163 (Pa.Super. 2022) (en banc), this Court concluded that as
“marijuana remains a Schedule I controlled substance under current
Pennsylvania law[,] … the Commonwealth is not required to prove that the
marijuana in an individual’s bloodstream is non-medical marijuana for
purposes of proving DUI.” Id. at 1174.
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Therefore, we agree with the trial court that there was sufficient
evidence to support Appellant’s conviction for DUI under Section 3802(d)(1).
and agree with counsel’s assessment that this argument is wholly frivolous.
“Furthermore, after conducting a full examination of all the proceedings as
required pursuant to Anders, we discern no non-frivolous issues to be raised
on appeal.” Yorgey, 188 A.3d at 1195.
Accordingly, we affirm Appellant's judgment of sentence and grant
counsel's petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2022
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