Com. v. Ingram, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW TERRY INGRAM :
:
Appellant : No. 505 MDA 2023
Appeal from the Judgment of Sentence Entered February 14, 2023
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001106-2022
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 24, 2023
Andrew Terry Ingram appeals from the judgment of sentence of
seventy-two hours to six months of incarceration imposed following his
conviction of three counts of driving under the influence (“DUI”) and one count
of failing to drive on the right side of the roadway. Counsel, Scott A. Harper,
Esquire, 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 petition and remand for further
proceedings consistent with this memorandum.
This case stems from a traffic stop conducted by Pennsylvania State
Police (“PSP”) Trooper Alexander Loder on June 13, 2022. Trooper Loder was
driving behind Appellant when Trooper Loder observed “Appellant’s front and
rear driver’s side tires cross the double yellow centerline. Appellant continued
to travel with a portion of his vehicle over the centerline for [sixteen] seconds.”
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Trial Court Opinion, 8/29/23, at 2. Trooper Loder initiated a traffic stop and
Appellant complied by pulling over. The trooper approached Appellant and,
upon speaking with him, smelled a strong odor of burnt marijuana and noticed
that Appellant had bloodshot eyes. Appellant stated that he had smoked
marijuana twenty to thirty minutes before the stop. Trooper Loder conducted
field sobriety tests and ultimately concluded that Appellant was under the
influence of marijuana and could not safely drive. Appellant was arrested and
subsequently consented to a blood draw, which revealed the presence of
marijuana.
On January 6, 2023, Appellant proceeded to a combined suppression
hearing and bench trial. The trial court denied Appellant’s suppression motion,
found him guilty as indicated above, and sentenced him. This timely appeal
followed. The trial court entered an order directing Appellant to file a Pa.R.A.P.
1925(b) statement, but none was filed. The court issued a statement
suggesting the appeal be dismissed as a result. See Trial Court Opinion,
3/22/23. Over one month later, counsel filed an untimely concise statement
on Appellant’s behalf, raising a single issue challenging the sufficiency of the
evidence. Counsel then filed in this Court an Anders brief and petition to
withdraw, presenting the same sufficiency challenge as the only issue
arguably supporting an appeal. See Anders brief at 6.
Given this procedural posture, and the fact that the certified record was
missing material items, we denied counsel’s petition, remanded for counsel to
ensure inclusion within the certified record of all necessary materials, and
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directed the trial court to file a Rule 1925(a) opinion in response to the
untimely Rule 1925(b) statement. See Commonwealth v. Ingram, 2023
WL 5447699 (Pa.Super. August 23, 2023) (non-precedential decision).
While the trial court has issued a Rule 1925(a) opinion, counsel has not
complied with our directive to supplement the record with the pertinent video
evidence. Rather than await counsel’s compliance, we deem it more prudent
to address counsel’s Anders brief at this time. Counsel seeking to withdraw
pursuant to Anders 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 appellant; and (3) advise the appellant that he
or she has the right to retain private counsel or raise additional
arguments that the appellant deems worthy of the court’s
attention.
Commonwealth v. Redmond, 273 A.3d 1247, 1252 (Pa.Super. 2022)
(cleaned up). Our Supreme Court further detailed counsel’s duties as follows:
[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. “Substantial compliance with these requirements is
sufficient.” Commonwealth v. Prieto, 206 A.3d 529, 533 (Pa.Super. 2019)
(cleaned up). “If counsel does not fulfill the aforesaid technical requirements
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of Anders, this Court will deny the petition to withdraw and remand the case
with appropriate instructions[.]” Commonwealth v. Wrecks, 931 A.2d 717,
721 (Pa.Super. 2007) (cleaned up).
Here, counsel sets forth a single issue of arguable merit: “Did the trial
court err in finding sufficient evidence to establish a violation of the Motor
Vehicle Code, based on [Appellant’s] momentary and slight crossing of the
double yellow line without impeding any other vehicle traveling on that section
of roadway at that time?” Anders brief at 12 (cleaned up). In its entirety,
counsel argues as follows:
Undersigned Counsel has been unable to determine that this issue
has any arguable merit on this appeal. Counsel has reached this
conclusion upon a review of the record and relevant case law. In
arriving at this conclusion Appellant’s counsel has kept his duty to
advocate for his client forefront in his mind. However, when
counsel considers the limitations of the court’s scope and standard
of review for a claim challenging the sufficiency of the evidence,
counsel is ethically constrained to inform this Honorable Court that
he can find no good faith basis for asserting this particular issue
on appeal. In arriving at this conclusion, counsel has reviewed
and utilized the standard set forth in the Pennsylvania Rules of
Professional Conduct, particularly Rule 3.1 (meritorious claims
and contentions) and Rule 3.3 (candor toward the tribunal).
If this Honorable Court, based on a review of the record, finds that
the Appellant’s contentions are of merit, given the scope and
standard of review, it is respectfully requested that appropriate
relief be granted.
Id. at 12-13 (cleaned up).
Counsel sets forth the scope and standard of review of a sufficiency
claim earlier in the brief. See id. at 4-5. Critically, however, counsel does
not present any case law or application of the facts of record to the relevant
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case law within the brief. Moreover, as detailed by the trial court, Appellant’s
argument, while using the language of sufficiency, appears really to be a claim
challenging the court’s denial of his suppression motion. See Trial Court
Opinion, 8/29/23, at 4 n.3 (“The concise statement mentions the sufficiency
of the evidence, which is typically a challenge to the verdict. However, the
wording of the issue mentioning the violation of the Motor Vehicle Code implies
that Appellant’s challenge is really directed at the denial of his motion to
suppress.” (cleaned up)). Nonetheless, counsel does not discuss in the
Anders brief the merits of a suppression claim.
Based on the foregoing, we determine counsel’s Anders brief to be
woefully inadequate. Like the trial court, we conclude it appears that counsel
is conflating sufficiency of the evidence with a challenge to the court’s decision
to deny Appellant’s motion to suppress. Moreover, counsel cites no case law
or statutes in addressing Appellant’s claim and, indeed, never explains the
substance of Appellant’s claim. Stated plainly, counsel’s compliance with the
technical requirements of Anders is too deficient to be classified as
substantial.
Thus, we once again deny counsel’s petition to withdraw and remand to
the trial court for further action. This time, however, given counsel’s
numerous failings on Appellant’s behalf and in light of his dereliction to this
Court, we direct the court to appoint new counsel for Appellant forthwith. New
counsel shall enter his or her appearance with this Court. Thereafter, Attorney
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Harper may praecipe to withdraw his appearance in this Court. Finally,
Appellant’s new counsel shall ensure the inclusion of the video evidence and
any other necessary materials within thirty days of appointment. Then,
following review of the entire record, new counsel shall file either an
advocate’s brief or a petition to withdraw and Anders brief that fully comply
with the requirements detailed above within sixty days of appointment. The
Commonwealth may file a brief in response thirty days thereafter.
Petition to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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