Com. v. Mazzella, A.

J-S14030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREA MAZZELLA :
:
Appellant : No. 2738 EDA 2018
Appeal from the Judgment of Sentence Entered July 6, 2018
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000649-2016
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 13, 2019
Appellant Andrea Mazzella appeals from the judgment of sentence
imposed following his convictions for driving under the influence (DUI)–
general impairment – second offense, reckless driving, and improper use of a
motorcycle learner’s permit.1 Appellant’s counsel has filed a petition to
withdraw and an Anders/Santiago2 brief. We affirm and grant counsel’s
petition to withdraw.
The trial court summarized the relevant facts and procedural
background as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(a)(1), 3736(a), and 1505(c), respectively.
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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On March 19, 2016, Mahoning Township Police Officer Corey Frey
([Officer Frey]) was called to an area on Mahoning Drive West in
the Township of Mahoning, County of Carbon, for a motorcycle
accident. Based upon his investigation, on April 18, 2016,
[Officer] Frey filed a criminal complaint against [Appellant]
alleging that he had violated several sections of the Pennsylvania
Vehicle Code namely: 1) 75 Pa.C.S.A. § 3802(a)(1)-Driving Under
the Influence; 2) 75 Pa.C.S.A. § 3736(a)-Reckless Driving; 3) 75
Pa.C.S.A. § 3309(1)-Disregard Traffic Lane; and 4) 75 Pa.C.S.A.
§ 1505(c)-Improper Use of Motorcycle Learner’s Permit.
After all charges were bound over to court, [Appellant] filed a
motion to suppress any evidence referencing the fact that
[Appellant] had refused a blood test. A stipulation and orders
were filed on September 23, 2016 that granted the motion and
precluded the Commonwealth from seeking enhanced criminal
penalties should the case ever proceed to sentencing.
Additionally, this change[d] the grading of the DUI offense from a
misdemeanor of the first degree to an ungraded misdemeanor and
a loss of [Appellant’s] right to a jury trial.
Ultimately on June 11, 2018, a bench trial was held,[3] the
Commonwealth presented two witnesses, namely Matthew Ruch
(hereinafter “Ruch”) and [Officer] Frey himself. Ruch testified that
on March 19, 2016 around 2:00 A.M. in the area of Gypsy Hill
Road and Mahoning Drive, he observed a “cloud of dust.” He also
observed a single person standing near a motorcycle which was
laying on the ground in a dirt lot near Heintzelman’s Meat Market.
After passing the scene, Ruch, a trained EMT, turned around and
asked this person, who he identified [at trial] as [Appellant], if he
was okay. Ruch testified that [Appellant] said he “wrecked his
motorcycle, but don’t call the police. He ([Appellant]) was fine.”
Ruch further indicated that in the process of conversing with
[Appellant], [Appellant] exhibited poor balance and was slurring
his words.
At that point[,] Ruch left the immediate area and drove his vehicle
into the parking lot area of Gypsy Hill Gardens where he called
911. Upon exiting this parking lot area, he noticed [Appellant] on
the bike and now travelling further into Mahoning Township. Ruch
then began to follow [Appellant] and observed him swerving three
(3) to four (4) times within his lane of travel from the double
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3 Appellant did not testify.
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yellow center lines to the white fog line. In the process of doing
this, Ruch testified that [Appellant] was almost struck by a tractor
trailer. Shortly thereafter, Ruch observed [Appellant] stall the
motorcycle at which point, [Appellant] motioned for Ruch to go
around him, which Ruch did. Ruch then proceeded down the road
but pulled into the parking lot of a nearby business. From here,
Ruch observed [Appellant] resume his erratic driving before
[Appellant] pulled into the New England Motor Freight parking lot
some five hundred (500) feet away from Ruch. Ruch remained in
this parking lot until the Mahoning Township Police arrived.
The Commonwealth next called [Officer] Frey to testify. [Officer]
Frey stated that he received a call for the report of an accident
near Heintzelman’s Meat Market. While travelling there, he
received additional information that the motorcycle and its driver
were now in the New England Motor Freight parking lot. Upon
arriving at that location, [Officer] Frey observed an individual
seated on a motorcycle with the light on. As the officer arrived,
[Appellant] got off the bike, shut it off and began walking away.
[Officer] Frey testified that he observed [Appellant] drop
“something.” [Officer] Frey, upon observing facial injuries, asked
[Appellant] if he was okay and [Appellant] responded that he was
okay, but that it wasn’t his bike. [Officer] Frey eventually stopped
[Appellant] from walking away and upon confronting him
notice[d]slurred speech and smelled alcohol coming from
[Appellant]. [Appellant] refused to perform field sobriety tests.
[Officer] Frey, believing [Appellant] was driving this motorcycle
under the influence of alcohol, placed him under arrest.
[Appellant] then asked [Officer] Frey if he could pick up his keys.
[Appellant] further stated that it was his bike and that it was
stolen from outside of Ruby’s Bar and that [Appellant], upon
learning that it was stolen, chased down the “thief” and caught up
with him in the New England Motor Freight parking lot. [Officer]
Frey then took [Appellant] to Gnaden Huetten Memorial Hospital
for a blood draw. At the hospital, [Appellant] refused the blood
test and in doing so stated three to four times, “I wasn't driving,
so I'm not giving blood.”
Lastly, the Commonwealth presented a copy of [Appellant]’s
motorcycle learner’s permit and a copy of his JNET record to
confirm his license status.
[Appellant] presented one witness, Richard Gould, who testified
that he too was at Ruby’s around 2:00 A.M. on March 19, 2016
where he was able to see [Appellant] leave the bar with a friend
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to chase down whoever it was that had stolen [Appellant]’s
motorcycle and that he recently came forward in [Appellant]’s
defense because he recently heard, in that same bar, the
bartender and others talking about this very incident.
At the conclusion of the testimony, [the trial court] found
[Appellant] guilty of driving under the influence, reckless driving
and improper use of a motorcycle learner’s permit. [Appellant]
was found not guilty of disregard traffic lane. . . . On August 24,
2018, [Appellant] was sentenced to a period of incarceration of
not less than thirty (30) days nor more than six (6) months on the
DUI charge as well as the mandatory fines on the two traffic
offenses of reckless driving and improper use of motorcycle
learner’s permit.
Trial Ct. Op., 10/18/16, at 1-6.
Appellant filed a timely notice of appeal on September 7, 2018. On
September 10, 2018, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. Appellant
timely filed a Rule 1925(b) statement on September 21, 2018, and asserted
that there was insufficient evidence to establish that he operated the
motorcycle. On October 18, 2018, the trial court filed a responsive Rule
1925(a) opinion.
In his Anders/Santiago brief, counsel identifies two issues for
appellate review. Specifically, counsel includes challenges to the weight and
the sufficiency of the evidence supporting Appellant’s convictions.
Anders/Santiago Brief at 5.
Because counsel has filed a petition to withdraw pursuant to
Anders/Santiago, we must first address counsel’s petition before reviewing
the merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290
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(Pa. Super. 2007) (en banc). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to Appellant; and (3) advising Appellant that he has the right
to retain private counsel, proceed pro se, or raise additional arguments that
Appellant considers worthy of the court’s attention. See id.Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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. Only after determining that counsel has satisfied
these technical requirements, may this Court “conduct an independent review
of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (citations and footnote omitted); accord Commonwealth
v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Counsel has complied with the procedures for seeking withdrawal by
filing a petition to withdraw, sending Appellant a letter explaining his rights,
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and supplying Appellant with a copy of the Anders/Santiago brief.4 See
Goodwin, 928 A.2d at 290. Moreover, counsel’s Anders/Santiago brief
complies with the requirements of Santiago. Counsel includes a summary of
the relevant factual and procedural history, refers to the portions of the record
that could arguably support Appellant’s claims, and sets forth the conclusion
that the appeal is frivolous. Counsel explains his reasoning and supports his
rationale with citations to the record and pertinent legal authority. Therefore,
counsel has complied with the technical requirements for withdrawal,
Santiago, 978 A.2d at 361, and we will independently review the record to
determine if any non-frivolous issues are raised. See Flowers, 113 A.3d at
1250.
Initially, we note that counsel identifies a challenge to the weight of the
evidence in the Anders/Santiago brief. See Anders/Santiago Brief at 5.
However, Appellant failed to raise any objection to the weight of the evidence
in the trial court. Therefore, a challenge to the weight of the evidence has
been waived. See Pa.R.Crim.P. 607(A) (stating that a defendant must first
raise a weight claim with the trial court in a motion for new trial before
____________________________________________
4 The record reflects that counsel initially failed to include with his withdrawal
petition a copy of his letter to Appellant advising him of his right to retain new
counsel or proceed pro se. See Commonwealth v. Millisock, 873 A.2d 748,
751-752 (Pa. Super. 2005) (stating that the prudent course is to require
counsel to attach to the petition to withdraw a copy of the letter sent to the
client advising of his or her rights). On January 22, 2019, this Court entered
an order directing counsel to furnish a copy of the letter. See Order, 1/22/19.
That same day, counsel complied with our order, and filed a copy of his
January 11, 2019 letter to Appellant. See Response to Order, 1/22/19.
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sentencing or in a post-sentence motion); see also Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding that the appellant waived
a weight of the evidence challenge because the appellate court has nothing to
review when the appellant fails to preserve the claim in the trial court).
Counsel also discusses the sufficiency of the evidence that Appellant was
the operator of the motorcycle. Anders/Santiago Brief at 5. Counsel notes
that only Ruch claimed to have seen Appellant operating the motorcycle. Id.
at 6-7. Counsel explains that, based on Ruch’s identification alone, there was
sufficient evidence to find that Appellant operated the motorcycle. Id.
Our standard of review for sufficiency claims is as follows:
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. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the 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.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (brackets
and citation omitted).
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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.” Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (en
banc) (citation omitted). “[E]vidence of identification need not be positive
and certain to sustain a conviction. . . . Given additional evidentiary
circumstances, any indefiniteness and uncertainty in the identification
testimony goes to its weight.” Id. at 874 (citations and quotation marks
omitted). Thus, allegations of conflicts in evidence regarding identification are
more properly classified as challenges to the weight of the evidence.
Commonwealth v. Furness, 153 A.3d 397, 404 (Pa. Super. 2016).
To sustain a conviction for DUI–general impairment under Section
3802(a)(1), the Commonwealth must prove that “the accused was driving,
operating, or in actual physical control of the movement of a vehicle during
the time when he or she was rendered incapable of safely doing so due to the
consumption of alcohol.” Commonwealth v. Segida, 985 A.2d 871, 879
(Pa. 2009); see 75 Pa.C.S. § 3802(a)(1). Additionally, the Pennsylvania
Supreme Court has explained that
The types of evidence that the Commonwealth may proffer in a
subsection 3802(a)(1) prosecution include but are not limited to,
the following: 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. Blood alcohol
level may be added to this list, although it is not necessary and
the two hour time limit for measuring blood alcohol level does not
apply. Blood alcohol level is admissible in a subsection 3801(a)(1)
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case only insofar as it is relevant to and probative of the accused’s
ability to drive safely at the time he or she was driving. 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. Regardless of the type
of evidence that the Commonwealth proffers to support its case,
the focus of subsection 3802(a)(1) remains on the inability of the
individual to drive safely due to consumption of alcohol-not on a
particular blood alcohol level.
Segida, 985 A.2d at 879.
To sustain a conviction for reckless driving under Section 3736(a), the
Commonwealth must prove that an individual drove a vehicle, and that he did
so “in willful or wanton disregard for the safety of persons or property.” 75
Pa.C.S. § 3736(a). A person acts recklessly if he or she “consciously
disregards a substantial and unjustifiable risk” of injury to others. 18 Pa.C.S.
§ 302(b)(3). “Moreover, driving under the influence of an intoxicating
substance does not establish recklessness per se; there must be other tangible
indicia of unsafe driving to a degree that creates a substantial risk of injury
that is consciously disregarded.” Commonwealth v. Jeter, 937 A.2d 466,
468 (Pa. Super. 2007) (citation omitted).
To establish improper use of a motorcycle learner’s permit, an individual
must be shown to have violated one of the provisions of Section 1505(c),
which states that “[a] motorcycle learner’s permit entitles the person to whom
it is issued to operate a motorcycle only between sunrise and sunset and,
except for a driver licensed to drive another class of vehicle, only while under
the instruction and immediate supervision of a licensed motorcycle operator.”
75 Pa.C.S. § 1505(c).
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Here, the trial court concluded that the evidence was sufficient to
establish that Appellant was the operator of the motorcycle. Specifically, the
court explained:
In the case sub judice, Ruch observed, a single individual,
[Appellant], standing near a motorcycle in a dirt parking lot in a
cloud of dust. [Appellant] told Ruch, he “wrecked his bike.”
Several moments later, Ruch, after calling 911 and turning his
vehicle around in a nearby parking lot, saw this same motorcycle
being driven away. Ruch followed it, watched [Appellant] stall it,
then drive it to the shoulder of the road to allow Ruch to pass him.
Then, Ruch, after parking in a lot owned by a nearby business,
watched as the same individual, [Appellant] drove the same
motorcycle into the New England Motor Freight parking lot.
Officer Frey also saw [Appellant] on the same motorcycle in the
New England Motor Freight parking lot when he arrived on scene.
[Appellant] alit from the motorcycle upon [Officer] Frey’s presence
in that lot and tossed the key before being confronted by [Officer]
Frey.
Clearly, the Commonwealth’s evidence, based upon the
observations of the two (2) Commonwealth witnesses, places
[Appellant] as the driver of the motorcycle on Mahoning Drive in
Mahoning Township, Carbon County on March 19, 2016.
Trial Ct. Op., 10/18/18, at 7-8.
Based on our review of the record, we agree with the trial court that the
Commonwealth presented sufficient evidence to prove that Appellant operated
the motorcycle beyond a reasonable doubt. See Tucker, 143 A.3d at 964.
Further, it was for the trial court as fact-finder to evaluate the credibility of
the witnesses, and it concluded that Ruch’s identification of Appellant was
credible. See Orr, 38 A.3d at 873-84. Accordingly, we concur with counsel’s
conclusion that a sufficiency challenge on this basis is frivolous.
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Although arguably waived by his Rule 1925(b) statement, we add that
there was ample evidence to sustain all remaining elements of Appellant’s
convictions.
As to DUI, the trial court credited Officer Fry’s testimony that Appellant
emitted a strong odor of alcohol, slurred his speech, had difficulty maintaining
his balance, and became agitated when he was asked to submit to field
sobriety tests because he claimed “he was not driving.” See N.T. Trial,
6/11/18, at 30, 37. These observations by Officer Fry were sufficient to
establish that Appellant was under the influence of alcohol to a degree that
rendered him incapable of safe driving. See Segida, 985 A.2d at 879. Ruch
also testified that he observed Appellant driving the motorcycle only moments
before his encounter with Officer Fry. Therefore, it was reasonable for the
court to conclude that Appellant drove his motorcycle at a time when he was
incapable of driving safely due to ingestion of alcohol. See id. Accordingly,
there was ample evidence to support Appellant’s DUI conviction. See Tucker,
143 A.3d at 964.
As to reckless driving, Ruch testified that Appellant swerved between
lanes several times, came close to being struck by a tractor-trailer, and
abruptly turned left in front of a panel van before driving down a grass
embankment. See N.T. at 10, 12, 13. Based on this testimony, which the
trial court found credible, there was “other tangible indicia of unsafe driving”
to demonstrate Appellant’s disregard of the substantial risk of harm to others
on the roadway. See Jeter, 937 A.2d at 468; compare Commonwealth v.
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Greenberg, 885 A.2d 1025, 1026 (Pa. Super. 2005) (reversing reckless
driving conviction where there was no evidence that defendant had difficulty
negotiating the roadway or that he came close to striking other vehicles before
losing control of his vehicle on a sharp turn). Accordingly, we agree with the
trial court’s conclusion that there was sufficient evidence to support
Appellant’s conviction for reckless driving. See Tucker, 143 A.3d at 964.
As to improper use of a learner’s permit, Officer Fry testified that
Appellant had a learner’s motorcycle permit on the night of his arrest. See
N.T. at 36. Ruch testified that Appellant operated the motorcycle at
approximately 2:00 a.m. on that same night. Id. at 5. Because a learner’s
permit only authorizes the licensee to operate a motorcycle before sunset and
after sunrise, it was a violation for Appellant to operate the motorcycle at 2:00
A.M. See 75 Pa.C.S. § 1505(c). Accordingly, there was sufficient evidence
to support Appellant’s conviction for improper use of a learner’s permit. See
Tucker, 143 A.3d at 964.
In sum, we conclude that the potential claims identified in the
Anders/Santiago brief are frivolous. Moreover, our independent review of
the record does not reveal any additional, non-frivolous issues in this appeal.
See Yorgey, 188 A.3d at 1196-97; Flowers, 113 A.3d at 1249. Accordingly,
we grant counsel’s petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/19
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