Com. v. Altieri, A.

J-S47020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANEISA IVETTE ALTIERI :
:
Appellant : No. 114 MDA 2020

Appeal from the Judgment of Sentence Entered August 2, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002571-2018

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 9, 2021

Appellant Aneisa Ivette Altieri appeals from the judgment of sentence

imposed following her convictions for resisting arrest, disorderly conduct,1 and

related summary offenses. Appellant’s counsel has filed a petition to withdraw

and an Anders/Santiago2 brief. We grant counsel’s request to withdraw and

affirm.

By way of background, the Commonwealth filed the aforementioned

charges against Appellant after she was involved in an altercation with police

during a traffic stop in May of 2018. Prior to trial, Appellant filed a suppression

motion alleging that the police did not have the authority to stop her vehicle
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 5104 and 5503(a)(1).

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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because she was in a Walmart parking lot, rather than a public highway. In

lieu of a suppression hearing, the parties entered a joint stipulation of facts,

which established that (1) the police observed Appellant’s vehicle while it was

being operated on Highland Park Boulevard, which is a public ‘highway’ as

defined under 75 Pa.C.S. § 102; (2) while stopped behind Appellant at a red

light, police “ran a check” of Appellant’s license plate and discovered that the

registration was expired; and (3) after observing the violation, the police

immediately followed Appellant into the Walmart parking lot and conducted

the traffic stop. Based on these facts, the trial court denied Appellant’s motion

to suppress.

The matter proceeded to a jury trial on June 25, 2019. At trial, Officer

Robert Capparell testified that he and his partner, Officer Timothy Brodhead,

were on routine patrol when they saw Appellant traveling northbound on

Highland Park Boulevard in Wilkes-Barre. N.T. Trial, 6/25/19, at 27-28. After

running Appellant’s license plate through the Pennsylvania Judicial Network

(JNET), Officer Capparell discovered that the vehicle registration was expired.

Id. at 27. Officer Capparell explained that after the police activated their

lights and sirens, Appellant turned into the Walmart parking lot and pulled into

a parking spot. Id. at 29. Officer Capparell stated that the officers followed

Appellant into the parking lot, where “many cars and people were around.”

Id.

Officer Capparell testified that there were two passengers in Appellant’s

vehicle at the time of the stop. Id. As the officers approached, Officer

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Brodhead stated that Appellant was “very agitated.” Id. at 62. Officer

Brodhead testified that he “tried to explain to her that we stopped the vehicle

because the registration was, in fact, expired and had been for, I believe,

several months.” Id. However, Appellant began “yelling and screaming and

said, ‘This is my mom’s car. You have no right to stop me. I’m in a parking

spot.’” Id. at 62.

Officer Brodhead stated that, although he tried to “talk [Appellant]

down,” she continued yelling and refused to roll down her window. Id. The

officers called for backup, at which point Officer Joseph Wozniak and Officer

Christopher Ward arrived at the scene. Id. at 33.

Officer Brodhead explained:

[A]fter the other passengers ultimately got out of the vehicle, we
asked her multiple times to exit the vehicle. She refused. I
ordered her out of the vehicle. Once again, [she] refused. And
then Officer Wozniak found that . . . the front side passenger door
was unlocked. So he opened that door and opened the driver’s
door from the inside reaching over [Appellant]. Once the door
was open, we escorted [Appellant] out of the vehicle at which
point she started swinging and punching. She punched myself
and Officer Ward.

I told her that she was under arrest, and at that point that’s when
we were trying to physically take her into custody. I was trying
to get her arms behind her back and, you know, she absolutely
refused with all of her strength, just absolutely refused to put her
arms behind her back. And that’s when she was – she was actively
resisting, being physically combative, and that’s when Officer
Ward utilized his Taser to try and overcome the resistance.

Id. at 64-65.

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Officer Ward further testified that, as Appellant was removed from the

car:

She began screaming, cursing at us. She began to flail her arms
in a way where we were unable to gain full control of her. As
myself and [Officer] Brodhead attempted to gain control of her,
she began to swing her arms thus striking myself and [Officer]
Brodhead to the point where I pulled out my department issued
X2 Taser. I utilized the drive stun technique to the back shoulder
of Appellant which had zero to no effect on her whatsoever. At
that point she then shoved myself and Brodhead away from her
and I deployed my Taser with full contact, which would be two
darts.

Id. at 96-97.

Appellant also presented testimony from the passengers, who provided

alternative accounts of the incident. See id. at 79-87. Ultimately, on June

26, 2019, the jury convicted Appellant of resisting arrest and disorderly

conduct. As to the summary offenses, the trial court found Appellant guilty of

operating a vehicle without a valid inspection and driving without a license,

but not guilty of driving an unregistered vehicle. Sentencing was deferred for

the preparation of a pre-sentence investigation (PSI) report.

On August 12, 2019, the trial court sentenced Appellant to an aggregate

term of nine months’ probation. Appellant filed a timely post-sentence motion

requesting a modification to the court-imposed fees, which the trial court

denied.

Appellant subsequently filed a timely notice of appeal. Counsel filed a

Pa.R.A.P. 1925(c)(4) statement of his intent to file an Anders/Santiago brief.

The trial court issued a Rule 1925(a) opinion in which it addressed Appellant’s

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sentence and concluded that Appellant’s convictions were supported by both

the weight and sufficiency of the evidence.

On appeal, counsel has filed a petition to withdraw and an accompanying

Anders/Santiago brief asserting that the instant appeal is frivolous.3

Counsel’s withdrawal petition indicates that he sent a copy of the Anders brief

to Appellant. Counsel also included a copy of the letter he sent to Appellant

advising her of her right to proceed pro se or with new, privately retained

counsel. Appellant has not filed a pro se response or a counseled brief with

new counsel.

Counsel’s Anders/Santiago brief identifies the following issues:

1. Did the trial court err or abuse its discretion in failing to
suppress all evidence which was the result of an illegal traffic
stop?

2. Was the evidence in this case sufficient to sustain a guilty
verdict regarding the charge of resisting arrest?

3. Was the evidence in this case sufficient to sustain a verdict of
guilty regarding the disorderly conduct charge?

Anders/Santiago Brief at 2.4

“When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

____________________________________________

3 We note that although counsel filed a petition to withdraw indicating that he
sent a copy of the Anders brief to Appellant, he initially failed to file his
Anders brief with this Court. However, counsel corrected this error and
immediately complied with this Court’s order to file an Anders brief.

4 The Commonwealth did not file a brief, and Appellant did not file a response.

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request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted). 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 the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court’s attention. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc).

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.

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2015) (citation and footnote omitted); accord Commonwealth v. Yorgey,

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

Here, counsel has complied with the procedures for seeking withdrawal

by filing a petition to withdraw, sending Appellant a letter explaining her

appellate rights, and supplying Appellant with a copy of the Anders/Santiago

brief. 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. Accordingly,

we conclude that counsel has met the technical requirements of Anders and

Santiago, and we will proceed to address the issues raised in counsel’s

Anders/Santiago brief.

Motion to Suppress

Counsel first identifies Appellant’s claim that the trial court erred in

denying her motion to suppress. Anders/Santiago Brief at 10. Specifically,

“Appellant maintains that the [traffic] stop was unconstitutional because it did

not occur on a public highway, but rather on a trafficway, as defined by the

Pennsylvania Motor Vehicle Code (MVC), which authorizes stops for non-

serious violations only upon public highways.” Id. at 7. However, counsel

explains that, “according to the joint stipulation of facts, the officers confirmed

that the vehicle was being operated with an expired registration when it was

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still located on a public ‘highway.’” Id. As such, counsel suggests that nothing

precluded the officers from “following [] Appellant from the public highway

into the trafficway to either initiate a traffic stop or engage in further

investigation.” Id. at 19. Under these circumstances, where police had both

reasonable suspicion and probable cause to effectuate the traffic stop, counsel

submits that there was no violation of Appellant’s constitutional rights that

would warrant suppression. Id. at 20.

In reviewing a challenge to a trial court’s suppression ruling, our

standard of review is limited to determining

whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
. . . the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.

Commonwealth v. Green, 168 A.3d 180, 183 (Pa. Super. 2017) (citation

omitted).

Where a traffic stop is “based on the observed violation of the Vehicle

Code or [an] otherwise non-investigable offense, an officer must have

probable cause to make a constitutional vehicle stop.” Commonwealth v.

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Harris, 176 A.3d 1009, 1019 (Pa. Super. 2017) (citation omitted). A police

officer “has probable cause to stop a motor vehicle if the officer observes a

traffic code violation, even if it is a minor offense.” Id. (citation omitted).

Section 1301(a) of the Motor Vehicle Code provides that “[n]o person

shall drive or move . . . upon any highway any vehicle which is not registered

in this Commonwealth unless the vehicle is exempt from registration.” 75

Pa.C.S. § 1301(a); see also 75 Pa.C.S. § 3101(a) (stating that the provisions

governing the operation of motor vehicles pertain solely to vehicles operated

on “highways” unless otherwise stated); see also 75 Pa.C.S. § 102 (defining

a “highway” as “[t]he entire width between the boundary lines of every way

publicly maintained when any part thereof is open to the use of the public for

purposes of vehicular travel”).

Here, as noted previously, Appellant was operating the vehicle on

Highland Park Avenue, a public highway, when the police confirmed that the

vehicle’s registration was expired. At that point, police had probable cause to

stop Appellant for a violation of 75 Pa.C.S. § 1301(a). See Harris, 176 A.3d

at 1019; see also Commonwealth v. Richard, 238 A.3d 522, 527 (Pa.

Super. 2020) (concluding that police had probable cause to conduct a traffic

stop upon discovering that the defendant’s car was unregistered). Therefore,

because police had probable cause for the stop, we agree with counsel’s

assessment that the trial court properly denied Appellant’s motion to

suppress. See Green, 168 A.3d at 183.

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Sufficiency of the Evidence – Resisting Arrest

Counsel next identifies Appellant’s claim that there was insufficient

evidence to sustain her conviction for resisting arrest. Anders/Santiago

Brief at 8-9. Counsel notes that, at trial, the jury heard conflicting testimony

from witnesses who described Appellant’s conduct before and during her

arrest. Id. at 13-14. Nonetheless, counsel suggests that any factual dispute

that existed at trial must be resolved in the Commonwealth’s favor, as the

jury “passed on the credibility of the witnesses and evidence” and concluded

that there was sufficient evidence to establish the resisting arrest charge. Id.

In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted), appeal denied, 204 A.3d 924 (Pa. 2019).

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To sustain a conviction for resisting arrest, the Commonwealth must

prove that “with the intent of preventing a public servant from effecting a

lawful arrest or discharging any other duty, the person creates a substantial

risk of bodily injury to the public servant or anyone else, or employs means

justifying or requiring substantial force to overcome the resistance.” 18

Pa.C.S. § 5104. Further, “[i]ntent can be proven by direct or circumstantial

evidence; it may be inferred from acts or conduct or from the attendant

circumstances.” Commonwealth v. Faulk, 928 A.2d 1061, 1070 (Pa. Super.

2007) (citation omitted).

Here, as discussed previously, Appellant refused to comply with the

police officers’ directives throughout the traffic stop. See N.T. Trial at 64-65,

96-97. Ultimately, after the officers removed Appellant from the vehicle to

place her under arrest, Appellant refused to comply with any police directives,

punched two of the officers with a closed fist, and became physically

combative to the point that Officer Ward needed to employ his Taser. See id.

at 65, 96-97. Under these circumstances, viewing the evidence in the light

most favorable to the Commonwealth as verdict winner, we agree with

counsel’s assessment that there was sufficient evidence to sustain Appellant’s

conviction for resisting arrest. See Palmer, 192 A.3d at 89; see also 18

Pa.C.S. § 5104.

Sufficiency of the Evidence – Disorderly Conduct

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Counsel next identifies Appellant’s claim that there was insufficient

evidence to support her conviction for disorderly conduct. Anders/Santiago

Brief at 9. Specifically, “Appellant submits that the Commonwealth failed to

establish the requisite intent to commit this offense as she did not engage in

fighting with the officers or threatening or tumultuous behavior and had no

intent to do so.” Id. at 10. However, counsel suggests that “by fighting with

officers at the scene, Appellant’s conduct satisfies the element of engaging in

fighting or violent behavior.” Id. at 15-16. Further, counsel notes that

although Appellant stated that she “believed that the officers were violating

her rights,” it does not render the evidence insufficient. Id. at 16. Finally,

counsel explains that “the evidence in this case is sufficient to justify an

enhancement from a summary offense to a misdemeanor” because “Appellant

persisted in her violent behavior even after officers attempted to calm her

down.” Id.

Pursuant to Section 5503 of the Crimes Code, “[a] person is guilty of

disorderly conduct if, with intent to cause public inconvenience, annoyance or

alarm, or recklessly creating a risk thereof, [s]he . . . engages in fighting or

threatening, or in violent or tumultuous behavior[.]” 18 Pa.C.S. § 5503(a)(1).

“An offense under this section is a misdemeanor of the third degree if the

intent of the actor is to cause substantial harm or serious inconvenience, or if

he persists in disorderly conduct after reasonable warning or request to

desist.” 18 Pa.C.S. § 5503(b).

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Here, as noted previously, the Commonwealth presented evidence that

Appellant refused to comply with any police directives, punched two of the

officers with a closed fist, and continued to resist arrest until Officer Ward

utilized his Taser. See N.T. Trial at 64-65; 96-97. Under these circumstances,

and viewing the evidence in the light most favorable to the Commonwealth as

verdict winner, we agree with counsel’s assessment that there was sufficient

evidence to support Appellant’s conviction for disorderly conduct. See

Palmer, 192 A.3d at 89; see also 18 Pa.C.S. § 5503(a)(1). Therefore, we

agree with counsel’s assessment that Appellant’s claim is frivolous.

Discretionary Aspects of Sentence

Although not included in the statement of questions, counsel also

discusses the discretionary aspects of Appellant’s sentence.

Anders/Santiago Brief at 21. Counsel notes that the trial court reviewed a

PSI report and imposed a sentence that was within the standard guideline

range for each offense. Id. Further, counsel explains that “[a]fter review and

evaluation of the entire record, counsel is of the opinion that the trial court,

being aware of and having considered the PSI, satisfied the Sentencing Code”

and therefore, counsel cannot “cite to a specific breach of the Sentencing Code

or violation of its fundamental norms.” Id. at 23. Therefore, counsel suggests

that Appellant does not have a meritorious challenge to the discretionary

aspects of her sentence. Id.

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Initially, we note that “challenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted and

formatting altered). An appellant challenging the discretionary aspects of his

sentence must invoke this Court’s jurisdiction by satisfying a four-part test to

determine:

(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[ ] § 9781(b).

Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (some

citations omitted).

Further, it is well settled that “[i]ssues not presented to the sentencing

court are waived and cannot be raised for the first time on appeal.”

Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006)

(citation omitted); see also Pa.R.A.P. 302(a) (stating that “[i]ssues not raised

in the trial court are waived and cannot be raised for the first time on appeal”).

Here, although Appellant filed a post-sentence motion seeking a

reduction of the fines imposed by the trial court, she did not preserve any

claims implicating the discretionary aspects of her probationary sentence.

See Appellant’s Post-Sentence Mot., 8/22/19, at 1-2. Therefore, any such

claims are waived. See Tukhi, 149 A.3d at 888; see also Pa.R.A.P. 302(a).

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Accordingly, we agree with counsel’s assessment that any challenge to the

discretionary aspects of Appellant’s sentence is frivolous. See

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding

that when an issue has been waived, “pursuing th[e] matter on direct appeal

is frivolous”).

Based on our review of the record, we agree with trial counsel’s

assessment that the issues discussed in the Anders/Santiago brief are

frivolous. Moreover, our independent review of the record does not reveal

any additional, non-frivolous issues preserved in this appeal. See Flowers,

113 A.3d at 1250. Accordingly, we grant counsel’s petition to withdraw and

affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/09/2021

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