Com. v. Chinery, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRAVIS WAYNE CHINERY :
:
Appellant : No. 1005 MDA 2022
Appeal from the Judgment of Sentence Entered February 28, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002550-2021
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 6, 2023
Travis Wayne Chinery (Appellant) appeals from the judgment of
sentence entered in the York County Court of Common Pleas, following his
jury convictions of, inter alia, driving under the influence (DUI) of the highest
rate of alcohol and marijuana.1 Appellant’s attorney, Garrison Crow, Esquire
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1) (general impairment), (c) (highest rate of alcohol),
(d)(1)(i) (marijuana), (iii) (metabolite). Each of Appellant’s four DUI counts
were his third offense.
Appellant was also found guilty by the trial court of the summary offense
of restriction on alcoholic beverages. See 75 Pa.C.S. § 3809(a) (operator of
motor vehicle may not be in possession of an open alcoholic beverage
container).
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(Counsel), has filed an Anders2 brief and petition to withdraw from
representation. He raises two issues: (1) the Commonwealth’s alleged
delayed disclosure of a police report; and (2) the sufficiency of the evidence.
We grant Counsel’s petition to withdraw from representation and affirm the
judgment of sentence.
I. Facts
We summarize the following undisputed evidence presented at trial.
Gregory Buchman testified that on October 9, 2020, around 8:30 to 8:45 a.m.,
he was working at a stone yard in York County, and he approached a car that
was parked on the property. N.T. Criminal Jury Trial, 1/20-21/22 (N.T. Trial),
at 130-31. The driver, who was Appellant, was sleeping. Id. at 131. The car
engine was running, the driver’s window was open three to four inches, and
the radio music “was blaring.” Id. at 131. Buchman rapped on the window,
and then the windshield, in an unsuccessful attempt to rouse Appellant. Id.
at 132. Buchman put his hand through the open window to “nudge his head,”
and Appellant woke up. Id. Buchman described Appellant as
“[e]xtraordinarily groggy,” and Appellant opened his eyes very slowly, sat up,
and put on his seatbelt, all “in extremely slow motion.” Id. at 132. Buchman
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2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We note Appellant was represented at
trial by two assistant public defenders, Brittney Zeller, Esquire, and Matthew
Sembach, Esquire. His appellate counsel is also a member of the Public
Defender’s Office.
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informed Appellant he had called for an ambulance, but Appellant slowly put
the car in gear and drove away. Id. at 132-34.
At this juncture, we summarize the affidavit of probable cause,
supporting the criminal complaint, stated that Pennsylvania State Trooper
Steven Galbraith was dispatched to respond to a call at 8:46 a.m., and that
he made contact with Appellant at his residence at 9:22 a.m. Affidavit of
Probable Cause, 10/9/20, at 1.
At trial, Pennsylvania State Trooper Steven Galbraith similarly testified
he was dispatched at 8:46 a.m. to respond to a call about Appellant, but before
the trooper arrived, he received information the driver “had fled.” N.T. Trial
at 145. Trooper Galbraith ran the car’s registration and learned the registered
owner was Appellant. Id. at 145-46. Trooper Galbraith additionally testified,
however, that he first arrived at Appellant’s home at 9:04 a.m.3 See id. at
146, 163. Appellant was not home, and the trooper talked with Appellant’s
father. See id. at 163. The trooper then left and attempted to locate
Appellant. Id. at 164. At 9:22, however, the trooper returned to the home
and met with Appellant, who was now there. See id. at 146, 164.
Trooper Galbraith described Appellant as having slurred, “thick and
slow” speech and having an odor of alcohol on his person and breath. N.T.
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3 Appellant lived approximately six miles from the stone yard where he had
parked. N.T. Trial at 146.
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Trial at 152. The Commonwealth played a video taken from Trooper
Galbraith’s dash cam video recorder, which showed Appellant telling the
trooper he returned home approximately 30 seconds before the trooper
arrived. Id. at 155. Appellant initially stated he did not drink alcohol after
9:00 p.m., then stated he had two shots of whiskey around 11:30 p.m., but
ultimately denied he had any alcohol. Id. at 152-53. Appellant also stated
he pulled his car over at 2:00 a.m. because he was tired. Id. at 148, 150.
Finally, we note Trooper Michael Graybill testified he also responded to
Appellant’s home, and he observed a “three-quarters empty” bottle of Jack
Daniels in Appellant’s vehicle. Id. at 169, 172-73.
Trooper Galbraith placed Appellant under arrest for DUI, and Appellant
consented to a blood draw, which was taken at 10:27 a.m. N.T. Trial at 156-
57. The parties stipulated the blood test revealed a blood alcohol content
(BAC) of 0.202%. Order, 1/13/22, at 2. The test also revealed the presence
of marijuana. See N.T. Trial at 158.
II. Trial & Disclosure of CAD Report
The DUI charges against Appellant proceeded to a jury trial on January
20, 2022. Pertinent to the issues on appeal, defense counsel’s opening
statement argued the following: (1) Appellant arrived home “20 minutes
before the police came to his door, not 30 seconds as he initially told them[;]”
and (2) during those 20 minutes, Appellant drank and smoked. See N.T. Trial
at 95. Appellant’s defense would thus be that he was not intoxicated when
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he drove his car, and instead, he drank and smoked after he arrived home.
See id. at 95, 113. The proceedings then concluded for the day.
The next day, Appellant informed the trial court that at 5:30 p.m. the
previous day, the Commonwealth provided, for the first time, a police
Computer Aided Dispatch (CAD) report, which would show Appellant was not
at home at 9:04 a.m. (the first time Trooper Galbraith went to his home).4
See N.T. Trial at 108, 120. This evidence, in turn, would contradict defense
counsel’s opening argument and anticipated defense — that Appellant was
drinking at home just before his encounter with the state trooper. See id. at
102, 108, 113.
Appellant argued the Commonwealth should have disclosed the CAD
report during pre-trial discovery, and the late disclosure — after opening
arguments at trial — was a “trial by ambush.” See N.T. Trial at 109-10.
Appellant averred the CAD report was relevant to show the timeline of “when
he was actually driving” and when the State Troopers arrived on the call. Id.
at 114. Appellant claimed the Commonwealth’s failure to provide the CAD
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4 Trooper Galbraith explained a CAD report shows the precise time an officer
is en route to responding to a call, arrives on scene, and, if applicable “go[es]
anywhere else during that call[ or] run[s] a driver’s license[.]” N.T. Trial at
102.
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report was a violation of Brady,5 as well as Pa.R.Crim.P. 573(D) (continuing
duty to disclose)6 and warranted a mistrial. See id. at 106
The Commonwealth responded it cannot “anticipate every plausible or
possible defense,” it was not aware until the day prior that Appellant would
raise this defense, and it immediately disclosed the CAD report. N.T. Trial at
105, 107. The Commonwealth further contended Brady requires the
disclosure of evidence that is exculpatory or favorable to the defense, but
here, the CAD report was not favorable to Appellant’s defense. Id. at 106.
Finally, the Commonwealth stated it would not introduce the CAD report in its
case in chief, but if the defense were to open the door to this evidence, the
Commonwealth would introduce it in rebuttal. Id. at 101, 104.
The trial court agreed with the Commonwealth the CAD report was not
exculpatory, reasoning the evidence would not “put reasonable doubt into the
trier of fact’s mind as to [Appellant’s] culpability.” N.T. Trial at 119. The court
thus denied Appellant’s request for a mistrial. See id. at 127-28.
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5 Brady v. Maryland, 373 U.S. 83 (1963). A Brady violation claim avers:
the Commonwealth suppressed evidence, either willfully or inadvertently, that
was favorable to the accused, either because it was exculpatory or
impeaching, and prejudice ensued. Commonwealth v. Natividad, 200 A.3d
11, 25-26 (Pa. 2019).
6 Rule 573(D) provides: “If, prior to or during trial, either party discovers
additional evidence or material previously requested or ordered to be
disclosed by it . . . such party shall promptly notify the opposing party or the
court of the additional evidence . . . .” Pa.R.Crim.P. 573(D).
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The Commonwealth then presented the testimony of Buchman and
Troopers Galbraith and Graybill, as summarized above. Appellant did not
testify in his own defense, but called his father, who testified, inter alia, that
he did not see Appellant drink alcohol or smoke marijuana when he arrived
home that morning. N.T. Trial at 214.
The jury found Appellant guilty of four counts of DUI: incapable of safe
driving, highest rate of alcohol (0.16% or above), marijuana, and metabolite
of marijuana. As noted above, this was Appellant’s third offense of both
DUI/highest rate of alcohol and DUI/marijuana. Appellant was also found
guilty by the trial court of the summary offense of restriction on alcoholic
beverages.
On February 28, 2022, the trial court imposed a sentence of 7 years’
restrictive probation, with the first six months to be served in York County
Prison, followed by six months’ electronically monitored house arrest.
Appellant filed a timely post-sentence motion, which was denied on June
13, 2022. He took this timely appeal, and present Counsel filed a court-
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
raising claims of court error.
III. Anders Petition to Withdraw
On appeal, Counsel has now filed with this Court an Anders brief and
petition to withdraw. Appellant has not filed any pro se or counseled response.
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“This Court must first pass upon counsel’s petition to withdraw before
reviewing the merits of the underlying issues[.]” Commonwealth v.
Orellana, 86 A.3d 877, 879 (Pa. Super. 2014). To withdraw pursuant to
Anders, counsel must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. . . .
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted). In addition, pursuant to Santiago, counsel’s 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.
Commonwealth v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017),
quoting Santiago, 978 A.2d at 361. If this Court determines that counsel has
satisfied the technical requirements of Anders and Santiago, we then
conduct an independent review of the record to discern if there are non-
frivolous issues. Schmidt, 165 A.3d at 1006 (citation omitted).
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First, we determine Counsel has complied with the technical
requirements of Anders and Santiago. His petition to withdraw averred he:
(1) undertook a “conscientious examination of the entire record, including all
notes of testimony;” (2) has determined that a direct appeal would be
frivolous; and (3) provided a copy of the Anders brief to Appellant, and
advised him he may retain new counsel or raise any additional points to this
Court. Counsel’s Petition to Withdraw as Counsel, 4/14/23, at 1-2
(unpaginated). Counsel attached copies of two letters sent to Appellant, which
advised him Counsel could not identify any issues of arguable merit and
therefore would file an Anders petition to withdraw from representation.
These letters did advise Appellant he could file a pro se response or retain
private counsel.
In the Anders brief, Counsel presents two issues:
I. Whether the Commonwealth’s delayed disclosure of a police
report prejudiced [Appellant] and resulted in an unfair trial when
the report directly contradicted assertions made in trial counsel’s
opening statements?
II. Whether there was sufficient evidence to convict [Appellant] of
DUI where he was not pulled over in his vehicle while intoxicated?
Anders Brief at 5. Counsel reviews the relevant law for each issue and sets
forth his reasoning why they would be frivolous. See id. at 14-22.
Accordingly, we now independently review the record to discern if there
are non-frivolous issues. See Schmidt, 165 A.3d at 1006.
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IV. Disclosure of Police CAD Report
The first issue raised in the Anders brief is whether the
Commonwealth’s “delayed” disclosure of the CAD report caused prejudice and
an unfair trial, where “the report directly contradicted assertions made [in]
trial counsel’s opening statements[.]” Anders Brief at 14. The issue is not
whether the Commonwealth withheld exculpatory evidence,7 but rather
whether the timing of the disclosure “severely damaged trial counsel’s
credibility.” Id. at 16-17. Counsel cites case authority that “ambushing
defense counsel with” previously undisclosed impeachment evidence may
cause an unfair trial. Id. at 15, citing Commonwealth v. Galloway, 771
A.2d 65, 68 (Pa. Super. 2001). Counsel also avers, “Discovery decisions
predating the enactment of liberalized Rule [573] recognize that the
Commonwealth’s failure to disclose possible impeachment or rebuttal
evidence may highly prejudice the defendant’s case and lead to reversible
error when the evidence is sprung on the defendant unawares.” Anders Brief
at 15, quoting Commonwealth v. Thiel, 470 A.2d 145, 149 (Pa. Super.
1983). Counsel maintains, contrary to the trial court’s finding, there was a
discovery violation, but suggests, however, the issue is ultimately without
merit, as: (1) there was no evidence presented that Appellant consumed
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7 We note Counsel does not present any discussion of a Brady violation.
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alcohol or marijuana after he arrived home;8 (2) defense counsel’s opening
statement was therefore not belied by the CAD report; and thus (3) Appellant
did not suffer any prejudice. Id. at 17-18. We agree that no relief would be
due.
As stated above, the trial court denied Appellant’s motion for a mistrial
based on this alleged discovery violation. We consider the applicable standard
of review:
In criminal trials, declaration of a mistrial serves to eliminate the
negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise discovered at
trial. . . . [T]he trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably be
said to deprive the defendant of a fair and impartial trial. . . . Our
review of the resulting order is constrained to determining
whether the court abused its discretion.
Commonwealth v. Leaner, 202 A.3d 749, 778 (Pa. Super. 2019) (citation
omitted).
Pennsylvania Criminal Rule 573 governs pretrial discovery, and its
purpose is to prevent “trial by ambush.” Commonwealth v. Lynch, 242
A.3d 339, 350 (Pa. Super. 2020). Subsection 573(B)(1), which addresses
mandatory disclosures by the Commonwealth, provides, in pertinent part:
. . . In all court cases, on request by the defendant . . . the
Commonwealth shall disclose to the defendant’s attorney all of the
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8 In fact, Counsel points out, Appellant’s father testified he did not see
Appellant consume any alcohol or drugs that morning. Anders Brief at 18,
citing N.T. Trial at 214.
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following requested items or information, provided they are
material to the instant case. . . .
(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the possession
or control of the attorney for the Commonwealth[.]
Pa.R.Crim.P. 573(B)(1)(a). Subsection 573(D) pertains to the
Commonwealth’s continuing duty to disclose:
If, prior to or during trial, either party discovers additional
evidence or material previously requested or ordered to be
disclosed by it, which is subject to discovery or inspection under
this rule, . . . such party shall promptly notify the opposing party
or the court of the additional evidence, material, or witness.
Pa.R.Crim.P. 573(D).
This Court has explained:
Rule 573 applies equally to evidence used as part of the case in
chief and evidence used in rebuttal against defense witnesses.
[Thiel, 470 A.2d at 148.] The Rule implements the overall policy
of the discovery rules aimed at preventing “trial by ambush” and
the use of “last minute disclosures” to try cases, as such tactics
have been declared fundamentally unfair.
* * *
The pertinent question when determining whether the
Commonwealth acted improperly when it fails to disclose evidence
is whether it could reasonably have predicted possible defense
strategies. Thiel, [470 A.2d] at 148. If it could, then the
prosecutor will be “held to reasonable anticipation of what
evidence in his possession might be material.”
Commonwealth v. Hanford, 937 A.2d 1094, 1100-01 (Pa. Super. 2007)
(footnote & some citations omitted).
In its opinion, the trial court emphasized that Rule 573(B)(1)(a)’s
mandatory disclosure provision applies to “evidence favorable to the
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accused that is material . . . to guilt,” and that favorable evidence is material
when “there is a reasonable probability that, had the evidence been disclosed
. . . the result of the proceeding would have been different.” Trial Ct’s 1925(a)
Statement, 9/13/22, at 3. The court found the CAD report was not favorable
to Appellant, nor exculpatory, as it showed “he was home for a shorter period
than what Defense Counsel claimed in his opening statement.” Id. The court
further reasoned the CAD report showed Appellant “would have had less time
to drink enough alcohol (and smoke enough marijuana) for his BAC to rise to
the levels indicated.” Id.The trial court also found the defense had not disclosed this anticipated
defense before trial, and it was not foreseeable to the Commonwealth that
Appellant would raise it. Trial Ct.’s 1925(a) Statement at 4. The court noted
Trooper Galbraith’s affidavit of probable cause stated Appellant had told him
he just returned home 30 seconds prior to the trooper’s arrival, and
furthermore there was “an opened bottle of Jack Daniels” in the rear seat of
Appellant’s vehicle. Id. Upon learning of the defense, at trial, “the
Commonwealth promptly notified Defense Counsel of the CAD report[.]” Id.Finally, the court also considered the CAD report would not have been material
or relevant unless Appellant first raised the issue as a possible defense. See
id. at 5.
We agree with the trial court’s and Counsel’s reasoning. The affidavit
of probable cause clearly stated that Appellant told Trooper Galbraith he
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arrived home “approximately 30 seconds prior to [the trooper’s] arrival.”
Affidavit of Probable Cause at 1. There was no evidence Appellant refuted, at
any time before opening arguments at trial, the affidavit’s statement, nor the
witness Buchman’s descriptions of his earlier encounter with Appellant.
Accordingly, we find no abuse of discretion in the trial court’s reasoning that
the Commonwealth could not have anticipated Appellant’s defense theory.
For the same reasons, we agree with the trial court and Counsel the
CAD report was not “favorable” to Appellant’s defense. See Pa.R.Crim.P.
573(B)(1)(a). The CAD report would show Appellant was not home at 9:04
a.m., when Trooper Galbraith first arrived, but was home by 9:22 a.m. As
trial counsel acknowledged at the trial proceeding, the CAD report was
relevant to “establish when he was actually driving.” See N.T. Trial at 114.
Indeed, trial counsel argued the evidence was damaging because it would
contradict or undermine a claim that Appellant was home longer than the 30-
second timeframe he had initially given police. Finally, we note the trial court
pointed out the difference of, “say 15 minutes,” was not unduly prejudicial or
material. See N.T. Trial at 125-27 (trial court commenting, “20 minutes, 15
minutes, you know, arguing about how many angels can dance on the head
of a pin. . . . I don’t think it is fatal to your defense.”).
For the foregoing reasons, we would find no abuse of discretion in the
trial court’s denial of a mistrial, based on Appellant’s claim of a discovery
violation. We therefore agree with Counsel this issue would be frivolous.
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V. Sufficiency of the Evidence
The second issue presented in the Anders brief is whether there was
sufficient evidence to support the DUI conviction. Counsel raises an argument
that “the only person who possibly observed [Appellant] driving intoxicated
was Gregory Buchman, the employee of Baldwin’s Stone Yard.” Anders Brief
at 19. Counsel then opines this sufficiency issue lacks arguable merit, “given
the strong evidence of consumption near the time of driving,” including
Buchman’s description of Appellant, along with Appellant’s own
“uncontradicted disavowal of consuming any [alcohol or marijuana] at home
after driving.” Id. Counsel also cites the result of Appellant’s blood draw at
10:27 a.m., when he was observed driving at 8:45 a.m. Id. at 21. We agree
no relief would be due.
We note the applicable standard of review:
The standard we apply in reviewing the sufficiency of the 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 fact-finder to find every element of the crime beyond
a reasonable doubt. [W]e may not weigh the evidence and
substitute our judgment for the fact-finder. [T]he 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
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weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (citation
omitted).
Appellant was found guilty under the following four sub-sections of the
DUI statute:
(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.
* * *
(c) Highest rate of alcohol.—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.
(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:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in . . .
The Controlled Substance, Drug, Device and Cosmetic
Act; [or]
* * *
(iii) metabolite of a substance under subparagraph
(i) or (ii).
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75 Pa.C.S. § 3802(a)(1), (c), (d)(1)(i), (iii).
This Court has explained:
In order to prove a violation of [general impairment under
Subsection 3802(a)(1)], the Commonwealth must show: (1) that
the defendant was the operator of a motor vehicle and (2) that
while operating the vehicle, the defendant was under the influence
of alcohol to such a degree as to render him incapable of safe
driving. To establish the second element, the Commonwealth
must show that alcohol has
substantially impaired the normal mental and physical
faculties required to safely operate the vehicle.
Substantial impairment, in this context, means a
diminution or enfeeblement in the ability to exercise
judgment, to deliberate or to react prudently to changing
circumstances and conditions. Evidence that the driver
was not in control of himself, such as failing to pass a
field sobriety test, may establish that the driver was
under the influence of alcohol to a degree which rendered
him incapable of safe driving, notwithstanding the
absence of evidence of erratic or unsafe driving.
Gause, 164 A.3d at 541 (citations omitted).
Additionally, “lay witnesses may testify to someone’s readily observable
physical condition or appearance that does not require medical training.”
Gause, 164 A.3d at 538 (citation omitted). As stated above, “[t]he
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.” Id.
at 541 (citation omitted).
Preliminarily, we note Appellant’s post-sentence motion challenged only
the weight of the evidence. Nevertheless, “a defendant can challenge the
sufficiency of the evidence for the first time on appeal.” Commonwealth v.
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Gezovich, 7 A.3d 300, 302 n.2 (Pa. Super. 2010), citing, inter alia,
Pa.R.Crim.P. 606 (A)(7). In any event, the arguments presented in Counsel’s
discussion, that the witness Buchman was the only person to have observed
Appellant driving and that his testimony should not have been credited, go to
the weight of the evidence.
Here, the trial court denied relief on Appellant’s weight claim. See
Memorandum Order Denying Appellant’s Post-Sentence Motion (Memo.
Order), 6/13/22, at 7-8. It found Appellant’s argument, that the
Commonwealth failed to prove he was intoxicated while driving, was belied by
the record. See id. at 1. The Court reasoned the witness Buchman: observed
Appellant sleeping in his car, around 8:30 or 8:45 a.m., with the engine
running and music “blaring;” yelled and rapped on the car window and door
in an unsuccessful attempt to wake up Appellant; observed Appellant
eventually wake up, but in an “extraordinarily groggy” state; and observed
Appellant, in “extremely slow motion,” sit up and drive away. Id. at 2-3.
Furthermore, the court recounted, Trooper Galbraith described Appellant, at
the time they spoke, as having slurred, thick, and slow speech, as well as an
odor of alcohol on his breath and person. Id. at 4. Appellant told the Trooper
he drank two shots of whiskey around 11:30 the previous night, he drove but
ultimately pulled over because he was tired, and he arrived home about 30
seconds prior to the Trooper’s arrival. Id. Finally, the parties stipulated
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Appellant’s blood draw established a BAC of 0.202% and the presence of
marijuana and a metabolite of marijuana. Id. at 4-5.
In light of the foregoing, undisputed evidence, we agree the evidence at
trial supported a finding of guilt on Appellant’s four DUI counts. See Memo.
Order at 7-8. The testimony of Buchman and Trooper Galbraith were for the
jury to weigh. See Gause, 164 A.3d at 541. Accordingly, we would conclude
any challenge to the sufficiency or weight of the evidence would be frivolous.
Additionally, following an independent review of the record, we have
found no possible meritorious issues that Counsel overlooked.
VI. Conclusion
As we determine Counsel has complied with the technical requirements
of Anders and Santiago, and that the pursuit of the CAD report-disclosure
and sufficiency issues would be frivolous on appeal, we grant Counsel’s
petition to withdraw from representation and affirm Appellant’s judgment of
sentence.
Counsel’s petition to withdraw from representation granted. Judgment
of sentence affirmed.
Date: 10/06/2021
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