Com. v. Velazquez, W. ( 2023 )

J-S19006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIE ABNER VELAZQUEZ :
:
Appellant : No. 1100 MDA 2022
Appeal from the Judgment of Sentence Entered July 20, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000379-2021
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: AUGUST 2, 2023
Appellant, Willie Abner Velazquez, appeals from the judgment of
sentence of 120 days’ to 5 years’ incarceration, as well as fines and costs,
imposed after a jury convicted him of driving under the influence of alcohol
(DUI), 75 Pa.C.S. § 3802(c) (highest rate of alcohol), and driving under the
influence of a combination of a controlled substance and alcohol, 75 Pa.C.S. §
3802(d)(3). The trial court also convicted Appellant of driving while his
operating privileges were suspended/revoked, 75 Pa.C.S. § 1543(b)(1.1)(i).
On appeal, Appellant seeks to challenge the sufficiency of the evidence to
sustain his convictions. Additionally, his counsel, Kent D. Watkins, Esq., seeks
to withdraw his representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After careful review, we affirm Appellant’s judgment of sentence and
grant counsel’s petition to withdraw.
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The trial court summarized the facts of this case, as follows:
Testimony offered at the June 24, 2022 trial included that elicited
from Trooper William Moyer of the Pennsylvania State Police. On
August 19, 2019, Trooper Moyer was then employed as an officer
with the Shenandoah Police Department in Shenandoah, Schuylkill
County. Shortly before 3:00 p.m. that day, he was dispatched to
respond with EMS to outside of the Dollar Tree for an unresponsive
male. He was at the scene within a few minutes, and he found
[Appellant] slumped over while sitting in the driver[’s] seat of a
motor vehicle which was parked in the wrong direction on the two-
lane roadway — facing head-on to opposing traffic — directly
outside the store. [Appellant] was the only occupant in the
vehicle. The keys were in the ignition and the vehicle’s engine
was running.
After the officer yelled through an open window of the vehicle,
[Appellant] awoke. Trooper Moyer testified that [Appellant]
slurred his speech; he had a strong odor of alcoholic beverages
emanating from his body, and exhibited glassy, bloodshot eyes.
[Appellant] was unable to stay focused on the trooper’s
communication or to maintain his balance. After Trooper Moyer
advised [Appellant] that he was determined to be too impaired to
complete field sobriety tests, [Appellant] stated that he was
“drunk.” [Appellant] subsequently submitted to a timely blood
draw which, after testing, indicated that he had a .179% blood
alcohol content, together with various drugs in his system,
including methamphetamine[] and sedatives.
Trial Court Opinion, 9/15/22, at 2 (footnote omitted).
Based on this evidence, Appellant was convicted of the above-stated
offenses. On July 20, 2022, he was sentenced to the term of incarceration set
forth supra. Appellant filed a timely notice of appeal, and he complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, preserving a single issue challenging the sufficiency
of the evidence to sustain his convictions. The court filed its Rule 1925(a)
opinion on September 15, 2022.
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On November 30, 2022, Attorney Watkins filed with this Court a petition
to withdraw from representing Appellant. That same day, counsel also filed
an Anders brief, discussing the following issue that Appellant seeks to raise
on appeal: “Did the Commonwealth present sufficient evidence that …
[A]ppellant was in actual control of the vehicle when he was [convicted of
DUI]?” Anders Brief at 4. Attorney Watkins concludes that this issue is
frivolous, and that Appellant has no other, non-frivolous claims he could
pursue herein. Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. 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 also 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.”
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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
In this case, Attorney Watkins’ Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claims, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Watkins also states in his petition to
withdraw that he has supplied Appellant with a copy of his Anders brief.
Additionally, while Attorney Watkins initially failed to provide this Court with
a copy of the letter informing Appellant of the rights enumerated in Nischan,
counsel subsequently filed a copy of that letter when ordered to do so by this
Court. Accordingly, counsel has complied with the technical requirements for
withdrawal. To date, this Court has not received a pro se response from
Appellant. We will now independently review the record to determine if
Appellant’s issue is frivolous, and to ascertain if there are any other, non-
frivolous issues he could pursue on appeal.
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Appellant contends that the evidence was insufficient to support his
convictions because the Commonwealth failed to prove that he drove,
operated, or was in actual physical control of his vehicle, as required for his
two DUI offenses and his summary offense of driving while his license was
revoked. See 75 Pa.C.S. § 3802(c) (“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 alcohol concentration in the
individual’s blood or breath is 0.16% or higher within two hours after the
individual has driven, operated or been in actual physical control of the
movement of the vehicle.”) (emphasis added); 75 Pa.C.S. § 3802(d)(3) (“An
individual may not drive, operate or be in actual physical control of the
movement of a vehicle under any of the following circumstances: … (3) The
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.”) (emphasis added); 75 Pa.C.S. § 1543(b)(1.1)(i) (“A person who has
an amount of alcohol by weight in his blood that is equal to or greater than
.02% at the time of testing or who at the time of testing has in his blood any
amount of a Schedule I or nonprescribed Schedule II or III 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, or its metabolite
or who refuses testing of blood or breath and who drives a motor vehicle
on any highway or trafficway of this Commonwealth at a time when the
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person’s operating privilege is suspended or revoked as a condition of
acceptance of Accelerated Rehabilitative Disposition for a violation of section
3802 or former section 3731 or because of a violation of section 1547(b)(1)
or 3802 or former section 3731 or is suspended under section 1581 for an
offense substantially similar to a violation of section 3802 or former section
3731 shall, upon a first conviction, be guilty of a summary offense and shall
be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period
of not less than 90 days.”) (emphasis added; footnote omitted).
Initially, we observe that,
[w]hether the evidence was sufficient to sustain the charge
presents a question of law. Commonwealth v. Toritto, 67 A.3d
29 (Pa. Super. 2013) (en banc). Our standard of review is de
novo, and our scope of review is plenary. Commonwealth v.
Walls, 144 A.3d 926 (Pa. Super. 2016). In conducting our
inquiry, we examine[,]
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable
to the Commonwealth as verdict-winner, [is] sufficient to
establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the
evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts
regarding a defendant’s guilt 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. When
evaluating the credibility and weight of the evidence, the
fact-finder is free to believe all, part or none of the evidence.
For purposes of our review under these principles, we must
review the entire record and consider all of the evidence
introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.
2014) (quotation omitted).
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Commonwealth v. Rojas-Rolon, 256 A.3d 432, 436 (Pa. Super. 2021),
appeal denied, 285 A.3d 879 (Pa. 2022).
According to Attorney Watkins, it would be frivolous to claim that the
evidence was insufficient to prove that Appellant drove, operated, or was in
actual physical control of his vehicle, where Appellant was found asleep in the
driver’s seat of the car, with the keys in the ignition, and the vehicle’s engine
running. See Anders Brief at 11. Considering these circumstances, as well
as the fact that Appellant’s vehicle was parked oddly, we agree.
In Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005),
we explained that “[t]he term ‘operate’ requires evidence of actual physical
control of either the machinery of the motor vehicle or the management of
the vehicle’s movement, but not evidence that the vehicle was in motion.” Id.
at 904. The Brotherson panel acknowledged that “[i]n a majority of cases,
the suspect location of the vehicle, which supports an inference that it was
driven, is a key factor in a finding of actual control.” Id. at 905 (citations
omitted). The panel then concluded that the “highly inappropriate location”
of Brotherson’s car, which was found “on the basketball court of a gated
children’s playground[,] created a strong inference that it was an already[-
]intoxicated Brotherson who had driven the car to that spot.” Id. Similarly,
in Commonwealth v. Dirosa, 249 A.3d 586 (Pa. Super. 2021), appeal
denied, 261 A.3d 1033 (Pa. 2021), we found the evidence sufficient to support
Dirosa’s DUI conviction, where officers discovered Dirosa asleep in the driver’s
seat of his vehicle, which was parked outside a Wawa gas station at
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approximately 2:30 a.m., in between the clearly marked lines of the handicap
parking spaces in front of the store. Id. at 590. Additionally, in
Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), we concluded
the Commonwealth had presented sufficient evidence of actual physical
control where officers found Toland parked outside a store and asleep in the
driver’s seat of his vehicle with the motor running and headlights illuminated.
Id. at 1246.
As in Brotherson, Dirosa, and Toland, we conclude that the evidence
in this case was sufficient to prove that Appellant operated, drove, or was in
actual physical control of his vehicle. Appellant “was found behind the wheel
without the warning lights [and] with the engine running[,] asleep in the
driver’s seat.” Anders Brief at 11. Additionally, his vehicle was parked facing
the wrong direction, toward oncoming traffic directly outside of a store. These
facts were sufficient to circumstantially prove that Appellant had driven the
car to that location while in an inebriated state. Thus, we agree with Attorney
Watkins that Appellant’s challenge to the sufficiency of the evidence is
frivolous. Additionally, our independent review of the record reveals no other,
non-frivolous claims he could assert herein. Therefore, we affirm Appellant’s
judgment of sentence and grant counsel’s petition to withdraw.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2023
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