Com. v. Glover, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC J. GLOVER
Appellant No. 688 WDA 2015
Appeal from the Judgment of Sentence entered April 16, 2015
In the Court of Common Pleas of McKean County
Criminal Division at No: CP-42-CR-0000357-2014
BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 13, 2016
Appellant, Eric J. Glover, appeals from the judgment of sentence
imposed on April 16, 2015 in the Court of Common Pleas of McKean County
following his convictions of recklessly endangering another person (“REAP”)
and driving under the influence of alcohol (“DUI”), 18 Pa.C.S.A. § 2705 and
75 Pa.C.S.A. § 3802, respectively.1 His counsel has filed an Anders brief2
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1
As defined in 18 Pa.C.S.A. § 2705, “A person commits a misdemeanor of
the second degree if he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily injury.” In
accordance with 75 Pa.C.S.A. § 3802(a)(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.” Appellant also was convicted of a number of
summary moving violations for which the trial court imposed fines and costs.
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and a petition to withdraw pursuant to Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). Following review, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
In Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court refined
Anders, announcing:
[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.
Id. at 361.
In his brief, counsel summarized the procedural history and the facts
of the case on pages 2 through 5 of his brief, including citations to the March
31, 2015 jury trial transcript, which we further condense as follows:
Appellant was stopped by two Bradford Township police
officers, each driving a marked police car, for driving the wrong
way on the Route 219 expressway. Notes of Testimony, Trial,
3/31/15, at 11-14. When stopped by one of the officers,
_______________________
(Footnote Continued)
2
In his petition to withdraw, counsel stated that he was filing an
Anders/McClendon brief. See Anders v. California, 386 U.S. 738(1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
However, the brief filed with this Court appropriately refers to
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which requires
that counsel state the reasons for concluding the appeal is frivolous, rather
than comply with the standard set forth in Commonwealth v. McClendon,
434 A.2d 1185 (Pa. 1981), which was abrogated by Santiago.
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Appellant rolled down the window of his pickup truck. The
officer smelled a very strong odor of alcohol, which he ranked as
an “eleven” on a scale of one to ten. Id. at 13-14. The officers
asked Appellant to exit his vehicle. Appellant complied and
nearly fell to the ground. Id. at 14-15. When told he had been
traveling the wrong way on the expressway, Appellant told the
officers he had missed his exit. Id. at 15, 25, 35. Testimony
was presented by the officers concerning Appellant’s lack of
balance, slurred speech and bloodshot eyes, which in the
officers’ experience were indications of alcohol intoxication rather
than intoxication due to medication. Id. at 17.
Dash-cam videos from the officers’ vehicles were shown to
the jury, showing one officer swerving to avoid being struck by
Appellant’s vehicle, making a U-turn to follow Appellant, and
pulling in front of Appellant to stop his vehicle. Id. at 22-23, 40-
41. That same officer also testified that Appellant refused to
provide a blood sample. The officer explained he was unaware
of any medication that could cause a strong odor of alcohol. Id.
at 44-45.
A third officer arrived on the scene after receiving a call
indicating that a motorist was driving the wrong way on the
expressway in Foster Township. Upon arrival, the officer did not
administer filed sobriety tests out of concern Appellant could be
injured attempting those tests, due to his high degree of
intoxication. Id. at 59. The officers testified that, based on
their training, the signs of impairment displayed by Appellant
were indicative of intoxication from alcohol rather than from
medication. Id. at 27-28, 30-31, 67.
Appellant testified that he was taking an anti-seizure
medication relating to his elevated blood sugars, as well as an
anti-depressant and sleep medication. Although he was to take
some of his medications in the morning and at night, but had not
taken any on the night in question. He explained that his
memory becomes impaired and he goes into a stupor-like state
and “zones” out” when he fails to take his medications. He
contended his behavior when stopped by the police resulted from
his failure to take his medications. Id. at 74-77.
The case proceeded to trial on March 31, 2015, and the
jury returned a verdict of guilty on both counts. On April 16,
2015, Appellant was sentenced to not fewer than 10 months nor
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more than 20 months for REAP, with credit for time served of
118 days. He was sentenced to not fewer than 90 days nor
more than six months for the DUI conviction, consecutive to the
sentence for REAP.
Appellant filed a timely appeal on April 28, 2015. By order
dated May 7, 2015, the trial court directed Appellant to file a
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). In lieu of filing a Rule 1925(b) statement,
counsel filed a statement pursuant to Rule 1925(c)(4) indicating
there were no non-frivolous issues that could be raised on
appeal and that he intended to file an Anders brief and a motion
to withdraw pursuant to Santiago.
Appellant’s Brief at 2-7; see also Notes of Testimony, Trial, 3/31/15.3
In light of the procedural and factual summary provided, we find that
counsel has satisfied the first requirement of Anders as refined by
Santiago. He also has satisfied the second prong by exploring whether the
evidence was sufficient to support the verdict, noting that the applicable
standard is whether—viewing the evidence in the light most favorable to the
Commonwealth as verdict winner—there was sufficient evidence to enable
the trier of fact to find every element of the crime beyond a reasonable
doubt. Appellant’s Brief at 3 (citing Commonwealth v. Goodwin, 928 A.2d
287 (Pa. Super. 2007)). Counsel has offered a summary of testimony and
evidence offered that could arguably support a sufficiency of evidence
challenge to the verdict. In particular, he referred to Appellant’s testimony
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3
To the extent the references to the notes of testimony differ from the
references in Appellant’s brief, those additions and minor discrepancies are
the result of our independent review of the trial testimony.
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concerning the medications he did not take on the evening of his arrest and
the effects he experiences when he does not take them. “Therefore, it could
be argued that the confusion and impairment reported by the police officers
could have been caused by [A]ppellant being off his medications on the night
in question.” Appellant’s Brief at 6. “Appellant also contends that his
impairment was due to diabetic shock. Appellant testified that diabetic
shock causes him to pass out.” Id.Counsel also has satisfied the third and fourth Anders requirements
by setting forth his conclusion that the appeal is frivolous and the reasons
supporting that conclusion. Counsel specifically refuted the explanations
offered for Appellant’s demeanor and actions. Id. Counsel also noted that
Appellant’s recognition of the implications of not taking his medication is
further reflection of his negligence and culpability. Id. (citing 18 Pa.C.S.A. §
302(4)).4
We find counsel has satisfied the requirements for a petition to
withdraw. He complied with the briefing requirements, as explained above.
He also provided a letter to Appellant on August 21, 2015, advising
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4
18 Pa.C.S.A. § 302(4) provides: “A person acts negligently with respect to
a material element of an offense when he should be aware of a substantial
and unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that the actor’s
failure to perceive it, considering the nature and intent of his conduct and
the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation.”
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Appellant of counsel’s conclusion that the appeal was frivolous and advising
Appellant of his right to retain substitute counsel or to proceed pro se to
bring any attentional points to this Court’s attention. Counsel also has
served a copy of the petition to withdraw and the Anders brief on Appellant.
We note that Appellant has not filed a response to the petition to withdraw.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, it is incumbent upon this Court to “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). Having
reviewed the record, we agree with counsel that Appellant’s claims are
frivolous. Further, our independent review reveals no other non-frivolous
claims that Appellant could assert on appeal. Therefore, we grant counsel’s
petition to withdraw and affirm Appellant’s judgment of sentence.
Petition to withdraw granted. Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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