Com. v. Wood, G.

J-S28039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GABRIEL TYLER WOOD :
:
Appellant : No. 73 MDA 2020
Appeal from the Judgment of Sentence Entered May 28, 2019
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-SA-0000010-2019
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 24, 2020
Gabriel Tyler Wood (“Wood”) appeals from the judgment of sentence
imposed following his conviction of driving while operating privilege is
suspended or revoked.1 Additionally, Wood’s counsel, Elizabeth A. Close,
Esquire (“Attorney Close”), has filed an Application to Withdraw as Counsel,
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 Attorney
Close’s Application to Withdraw with instructions.
On October 16, 2018, at 7:43 a.m., Pennsylvania State Trooper Jeffrey
Black (“Trooper Black”) was dispatched to a disabled vehicle that was pulled
over to the side of Exit 77, Linglestown Road, on Interstate 81. When he
arrived at the disabled vehicle, Trooper Black observed a single male individual
____________________________________________
1 75 Pa.C.S.A. § 1543(a).
J-S28039-20
near the vehicle. Upon exiting his cruiser, and approaching the disabled
vehicle, Trooper Black spoke with the man, who identified himself as Wood.
Wood told Trooper Black that he was driving to work when his vehicle broke
down. After speaking with Wood, Trooper Black checked the vehicle’s
registration and Wood’s driving history. Upon doing so, Trooper Black
discovered that Wood’s license was suspended and that Wood had no
insurance. Trooper Black issued Wood citations for both driving while
operating privilege is suspended or revoked and operation of a motor vehicle
without required financial responsibility.2
On January 10, 2019, Wood appeared before a magisterial district judge
where Wood pled guilty to operation of a motor vehicle without required
financial responsibility. On the same day, Wood had a hearing on the citation
for driving while operating privilege is suspended or revoked after which the
magisterial district judge found Wood guilty and sentenced Wood to 30 days
in the Dauphin County Prison.
Wood filed a timely summary appeal challenging his conviction of driving
while operating privilege is suspended or revoked. On May 28, 2019, the trial
court conducted a trial de novo, at which Wood was represented by Attorney
____________________________________________
2 75 Pa.C.S.A. § 1786(f).
-2-
J-S28039-20
Close. The Commonwealth presented the testimony of Trooper Black and
entered Wood’s certified driving record into evidence.3
Wood presented the testimony of Hailey Mehaffie (“Mehaffie”), his
girlfriend at the time, as well as his own testimony. Mehaffie testified that
she, not Wood, was driving the vehicle that morning. Mehaffie stated that
after the vehicle broke down, she called a friend to pick her up and left the
scene because she was late for work.
In his testimony, Wood confirmed that Mehaffie was driving the vehicle
when it broke down, and that she had a friend pick her up from that location.
Wood stated that he called for a tow truck and elected to stay with the vehicle
until the tow truck arrived. He agreed that, sometime after Wood had called
for the tow truck, Trooper Black arrived on scene and issued the above-
mentioned citations.
____________________________________________
3 The Notes of Testimony indicate that Wood’s certified driving record was
admitted as Commonwealth’s Exhibit 1 at the trial de novo. See N.T.
(Summary Appeal), 5/28/19, at 9. However, this exhibit is missing from the
certified record on appeal. See Commonwealth v. Bongiorno, 905 A.2d
998, 1000 (Pa. Super. 2006) (stating that it is the appellant’s duty to ensure
that the record certified on appeal is complete). At the trial de novo, Trooper
Black testified that Wood’s driving record revealed six prior convictions of
driving while operating privilege is suspended or revoked. See N.T.
(Summary Appeal), 5/28/19, at 9. Additionally, Trooper Black testified that
Wood’s certified driving record indicates that Wood’s driver’s license was
suspended at the time he encountered Wood on October 16, 2018. See id.
Wood did not object to the admission of his certified driving record, and did
not challenge Trooper Black’s summary of its contents. See id.
-3-
J-S28039-20
At the conclusion of the trial de novo, the trial court affirmed Wood’s
conviction of driving while operating privilege is suspended or revoked. On
the same day, the trial court sentenced Wood to a period of 60 days to 6
months in prison in the Dauphin County Prison, and to pay a fine of $1,000.00.
Wood, through Attorney Close, filed a Notice of Appeal on June 28,
2019. Attorney Close filed a Statement of Intent to file an
Anders/McClendon Brief in lieu of a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. The trial court declined to file a Pa.R.A.P.
1925(a) Opinion. On August 16, 2019, in a per curiam Order, this Court
quashed Wood’s appeal as untimely filed.
Subsequently, on August 26, 2019, James J. Karl, Esquire (“Attorney
Karl”), entered his appearance on behalf of Wood and filed a Post-Conviction
Relief Act Petition.4 The Petition alleged that Attorney Close was per se
ineffective for failing to file a timely notice of appeal for Wood. On December
30, 2019, the PCRA court reinstated Wood’s post-sentence motion and direct
appeal rights nunc pro tunc. After some deliberation, the trial court re-
appointed the Dauphin County Public Defender’s Office to represent Wood.
Attorney Close re-entered her appearance on behalf of Wood and filed the
instant timely Notice of Appeal.5
____________________________________________
4 42 Pa.C.S.A. §§ 9541-9546.
5 Attorney Close did not file a post-sentence motion.
-4-
J-S28039-20
On January 8, 2020, Attorney Close filed a Statement of Intent to file
an Anders/McClendon Brief in lieu of a Pa.R.A.P. 1925(b) Concise Statement
of errors complained of on appeal. The trial court again declined to file an
Opinion pursuant to Pa.R.A.P. 1925(a). Attorney Close subsequently filed,
with this Court, an Application to Withdraw as Counsel and a brief pursuant to
Anders. Wood did not file a pro se brief, nor did he retain alternate counsel
for this appeal.
Before addressing Wood’s issues on appeal, we must determine whether
Attorney Close has complied with the dictates of Anders and its progeny in
petitioning to withdraw from representation. See Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that “[w]hen
presented with an Anders brief, this Court may not review the merits of the
underlying issues without first passing on the request to withdraw.”).
Pursuant to Anders, when counsel believes that an appeal is frivolous
and wishes to withdraw from representation, he or she 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
[the] 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. The determination of whether the appeal is
frivolous remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted.
-5-
J-S28039-20
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders 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.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
the record to ascertain if there appear 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 the instant case, our review of the Anders Brief and the Application
to Withdraw as Counsel reveals that Attorney Close has substantially complied
with each of the requirements of Anders/Santiago. See Commonwealth
v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Close has
provided Wood with a copy of the Anders brief, and advised him of his rights
to proceed pro se, retain new counsel, or raise any additional points deemed
worthy of the Court’s attention. Additionally, Attorney Close attached a copy
of the letter that she sent to Wood to her Application to Withdraw as Counsel.
-6-
J-S28039-20
Thus, Attorney Close has complied with the procedural requirements for
withdrawing from representation. We next review the issues raised by
Attorney Close to determine whether the issues lack merit and are, in fact,
frivolous.
In the Anders Brief, Attorney Close, presents the following question for
our review: “[Whether] appellate counsel [should] be permitted to withdraw
as counsel because any appellate issues in the case are frivolous?” Anders
Brief at 4 (some capitalization omitted).
In support of this question, Attorney Close alleges that any claims Wood
could have raised were frivolous. Id. at 8. Specifically, Attorney Close asserts
that it would be frivolous to challenge the sufficiency of the evidence because
the trial court found Trooper Black to be credible. Id. at 9-10. Further,
Attorney Close directs our attention to Trooper Black’s testimony that Wood’s
driver’s license was suspended and that Wood had admitted to Trooper Black
that he was driving the vehicle. Id. Finally, Attorney Close contends that any
challenge on appeal would be better characterized as a challenge to the weight
of the evidence, but that such a challenge is waived because Wood did not
preserve it in a post-sentence motion. Id. at 10.
First, we will address Wood’s challenge to the weight of the evidence.
Attorney Close claims that Wood waived his challenge to the weight of the
evidence by failing to file post-sentence motions and, therefore, his claim is
frivolous. Id. at 10.
-7-
J-S28039-20
At the outset, we observe that post-sentence motions are prohibited in
summary appeals following a trial de novo. See Pa.R.Crim.P. 720(D) (stating
that “[t]here shall be no post-sentence motion in summary case appeals
following a trial de novo in the court of common pleas.”). Thus, despite
Attorney Close’s claim, Wood’s claim challenging the weight of the evidence
could not be, and is not, waived based upon his failure to file a post-sentence
motion.
However, while Pa.R.Crim.P. 720(D) prohibits preservation of a weight
of the evidence claim via post-sentence motion, it does not vitiate the
defendant’s responsibility to preserve such challenges before the trial court.
See Commonwealth v. Dougherty, 679 A.2d 779, 784 (Pa. Super. 1994)
(stating that appellant’s challenge to the weight of the evidence in a summary
appeal was preserved where the “trial [court] explicitly addressed … weight of
the evidence at the close of appellant’s trial[,]” in the absence of post-
sentence motions). Additionally, Pa.R.Crim.P. 607(A) states that a challenge
to the weight of the evidence may be preserved orally, on the record, or by
written motion at any time before sentencing. See Pa.R.Crim.P. 607(A)(1),
(2); see also Pa.R.Crim.P. 607 Cmt. (stating “[t]he purpose of this rule is to
make it clear that a challenge to the weight of the evidence must be raised
with the trial judge or it will be waived.”).
Instantly, Wood did not raise a challenge to the weight of the evidence
claim in a pre-sentence motion, nor did he address the issue orally prior to or
-8-
J-S28039-20
during sentencing. Thus, we agree with Attorney Close’s assessment that
Wood waived any challenge to the verdict as against the weight of the
evidence. See Pa.R.Crim.P. 607(A); see also Commonwealth v.
Sherwood, 983 A.3d 483, 494 (Pa. 2009) (stating that a challenge to the
weight of the evidence is waived unless it is first presented to the trial court);
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (stating
that when an issue has been waived, “pursuing th[e] matter on direct appeal
is frivolous[.]”). Accordingly, on this basis, we agree with counsel that Wood’s
challenge to the weight of the evidence is frivolous.
We now turn to Wood’s challenge to the sufficiency of the evidence. A
claim challenging the sufficiency of the evidence is a question of law.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Our standard
of review is well-settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a light
most favorable to the Commonwealth as verdict winner, support
the conviction beyond a reasonable doubt. Where there is
sufficient evidence to enable the trier of fact to find every element
of the crime has been established beyond a reasonable doubt, the
sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
may be met by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact[-]finder
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.
-9-
J-S28039-20
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2013) (citations
omitted).
In order to establish a violation of driving while operating privilege is
suspended or revoked, section 1543(a) of the Motor Vehicle Code provides
that, “[e]xcept as provided in subsection (b), any person who drives a motor
vehicle on any highway or trafficway of this Commonwealth after the
commencement of a suspension, revocation or cancellation of the operating
privilege and before the operating privilege has been restored is guilty of a
summary offense[.]” 75 Pa.C.S.A. § 1543(a).
At the trial de novo, the Commonwealth presented evidence of Wood’s
admission to Trooper Black that he was driving the vehicle prior to it becoming
disabled. See N.T. (Summary Appeal), 5/28/19, at 8-9. Additionally, the
Commonwealth entered Wood’s certified driving record, without objection, as
an exhibit. Id. at 9. According to Trooper Black, the certified driving record
indicated that Wood’s driver’s license was suspended at the time of the
incident in question. Id. In finding Wood guilty, the trial court gave credence
to Trooper Black’s testimony and Wood’s certified driving record, and
concluded that Wood was operating the vehicle on a suspended license. See
id. at 34-35.
Accordingly, to the extent that Attorney Close challenges the sufficiency
of the evidence on this basis, we agree that this claim would lack merit.
- 10 -
J-S28039-20
We next independently review the record to determine whether there
exist any additional, non-frivolous issues. See Dempster, supra.
In order to sustain a conviction of driving while operating privilege is
suspended or revoked, and in addition to the elements required by 75
Pa.C.S.A. § 1543(a), the Commonwealth must demonstrate that the
defendant had actual notice that his license was suspended or revoked.
Commonwealth v. Baer, 682 A.2d 802, 805 (Pa. Super. 1996). The certified
record before us contains no evidence that Wood had actual notice of his
license suspension. See Commonwealth v. Kane, 333 A.2d 925 (Pa. 1975)
(where our Supreme Court held that it is necessary for the Commonwealth to
prove that the accused had actual notice of suspension in order to sustain a
conviction of driving while under suspension); see also Commonwealth v.
McDonough, 621 A.2d 569, 572 (Pa. 1993) (explaining that the Court’s
holding in Kane applies to the current statute, 75 Pa.C.S.A. § 1543, as well).
However, as set forth supra, the certified driving record is not included with
the record forwarded to this Court on appeal.
Because this issue is potentially meritorious, we deny counsel’s request
to withdraw from representation at this time. Within 30 days of the date of
this Memorandum, we direct counsel to file either an appellate brief addressing
this claim, or to file a new application to withdraw from representation and
Anders brief addressing why this claim lacks merit and is frivolous. See
Dempster, supra; see also Commonwealth v. Tukhi, 149 A.3d 881, 890
- 11 -
J-S28039-20
(Pa. Super. 2016) (explaining that where potentially non-frivolous issues
exist, the appellate court will not state what relief is due, if any). The
Commonwealth may file a responsive brief within 30 days thereafter.
Application to Withdraw as Counsel denied. Within 30 days of the date
of this Memorandum, counsel is directed to file either an appellate brief, or a
new application to withdraw from representation and Anders brief in
accordance with this Memorandum. Superior Court panel jurisdiction
retained.
- 12 -