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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD DOUGLAS HOUSLER :
:
Appellant : No. 727 WDA 2021
Appeal from the Judgment of Sentence Entered June 16, 2021
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000326-2020
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: January 6, 2023
Richard Douglas Housler (Appellant) appeals from the judgment of
sentence entered in the McKean County Court of Common Pleas of an
aggregate term of seven days to six months’ imprisonment. Counsel for
Appellant, Christopher J. Martini, Esquire, seeks permission to withdraw from
representation pursuant to Anders v. California, 386 U.S. 738 (Pa. 1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 The Anders
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* Retired Senior Judge assigned to the Superior Court.
1 Attorney Martini initially filed an Anders brief on February 22, 2022, which
was stricken by this panel on July 18, 2022, for failure to file a
contemporaneous petition to withdraw or a letter advising Appellant of his
rights pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and for failing to comply with the procedures for withdrawal of counsel
on the grounds of frivolity set forth in Santiago. On October 23, 2022, after
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brief presents evidentiary and sufficiency challenges. Based on the following,
we find that counsel’s Anders brief satisfies the requirements set forth in
Santiago, supra. Accordingly, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
I. Facts & Procedural History
On the early morning of May 17, 2020, Pennsylvania State Troopers
Timothy Mix and Hunter Freer were on routine patrol in Smethport Borough
when they observed a vehicle, being driving by Appellant, “cross the fog line
and center line of the roadway.” Trial Ct. Op., 9/10/21, at 3. They then
stopped the vehicle and approached it.2 An unidentified female was in the
passenger seat. Id.
The troopers first observed that Appellant “was reluctant to roll his
window all the way down; and, he was rocking and moving his hands.” Trial
Ct. Op. at 3 (quotation marks omitted). Appellant was also sweating, swaying
back and forth, and slurring his speech. See id. At one point, Trooper Mix
noticed the female passenger opened the center console, and he observed a
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receiving several extensions, Attorney Martini filed an application to withdraw
as counsel and an amended Anders brief.
2 The troopers also stopped Appellant because the temporary registration card
sticker was displayed in the upper left, instead of the lower left, corner of the
window. See N.T., 1/15/21, at 23. The entire interaction was recorded by
the officers. See id. at 16-19. Trooper Mix mentioned that one of the
microphones used to record the voices had died and therefore, there was no
audio for some portions of the recording. See id. at 10.
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pipe commonly used for smoking methamphetamine. See N.T., 1/15/21, at
8. Appellant appeared to be “very talkative,” indicating that he was “under a
lot of stress.” Trial Ct. Op. at 3 (quotation marks omitted). The troopers
asked Appellant about crossing the center and yellow lines, to which he
responded that he had been “driving with his knees” because he had been
fidgeting with his swollen hands. See N.T., 1/15/21, at 45; N.T., 1/26/21, at
4.
Appellant initially declined to perform field sobriety tests3 but then
changed his mind. While performing the tests, he was “observed to be
swaying and his arms [were] going outwards on the walk and turn portion of
the tests. He was confused and had great difficulty focusing on the task he
was asked to perform, often going on to other topics and making unrelated
comments.” Trial Ct. Op. at 3. Appellant’s actions and demeanor led Trooper
Freer to believe that he was under the influence of a controlled substance and
arrested him. See N.T., 1/15/21, at 36, 38. Appellant was asked to submit
to a blood test, which he refused. See id. at 38. During transport, Trooper
Freer noticed that Appellant “was in and out of consciousness[,] mumbling
about things we were not asking him.” Id. at 42. At one point during the
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3 Trooper Freer testified that Appellant “was defiant to step out” and “said
something along the lines of ‘If I’m not under arrest I’m not stepping out.’”
N.T., 1/15/21, at 35.
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interaction, when the trooper asked Appellant about his prior criminal history,
Appellant said that “he was prone to criminal behavior.” Id. at 43, 51.
The matter proceeded to a bench trial that began on January 15, 2021.
Due to technical difficulties,4 the case was continued to January 26th. On that
date, the trial court found Appellant guilty of driving under the influence of a
controlled substance (DUI) (impaired ability – 1st offense), location of
registration permit, driving on roadways laned for traffic, and careless
driving.5 On June 16, 2021, the court sentenced Appellant to a term of seven
days to six months’ imprisonment as to the DUI offense. As for the remaining
convictions, the court imposed statutory fines and costs. Appellant did not
file post-sentence motions but did file a timely notice of appeal.
Following sentencing, Appellant’s trial counsel6 filed a motion to
withdraw as counsel, which the court granted on June 25, 2021. The court
also appointed Attorney Martini to represent Appellant. The court then
ordered Appellant to file a concise statement of errors pursuant to Pa.R.A.P.
1925(b). After receiving an extension of time, Appellant filed a Rule 1925(b)
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4The proceedings were conducted via video conference due to the COVID-19
pandemic.
5 75 Pa.C.S. §§ 3802(d)(2), 1310.1(c), 3309(1), and 3714(a), respectively.
6 Sarah Dufresne, Esquire, represented Appellant at trial.
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concise statement on August 9, 2021.7 The trial court issued a Pa.R.A.P.
1925(a) opinion on September 10, 2021.
II. Issues Raised on Appeal
Appellant now presents, via counsel’s Anders brief, the following issues
for our review:
(1) “[W]hether the trial court abused its discretion in sustaining
objections of the Commonwealth during Appellant’s
counsel’s cross-examination wherein Appellant’s counsel
questioned the Commonwealth’s witnesses regarding self-
serving statements made by . . . Appellant[?]”
(2) “Whether the Commonwealth presented sufficient evidence
to prove that [Appellant] was guilty beyond a reasonable
doubt of the charges filed by the Commonwealth[?]”
Anders Brief at 11, 14.8
III. Anders Petition to Withdraw & Brief
When, as here, Attorney Martini files a petition to withdraw and
accompanying Anders brief, we must first examine the request to withdraw
before addressing any of the substantive issues raised on appeal.
Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An
attorney seeking to withdraw from representation on appeal must:
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7In the concise statement, Appellant raised one issue — a sufficiency of the
evidence issue. Notably, Attorney Martini did not file a statement of intent to
withdraw in lieu of filing a concise statement of errors complained of on
appeal. See Pa.R.A.P. 1925(c)(4).
8 We have reordered theses issues based on the nature of the claims.
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1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, an Anders brief must also:
(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., quoting Santiago, 978 A.2d at 361.
In the present case, Attorney Martini filed a petition for leave to
withdraw on October 23, 2022, stating they had consciously reviewed the
record and determined “the instant appeal is frivolous[.]” Attorney Martini’s
Petition for Leave to Withdraw, 10/23/22, at 2 (unpaginated). Moreover,
counsel has provided this Court with a copy of the letter they sent to Appellant,
advising him of his right to proceed with newly retained counsel or pro se, and
to raise any additional points deemed worthy for this Court’s attention. See
Attorney Martini’s Letter to Appellant, 10/22/22 at 1 (unpaginated). Attorney
Martini also provided Appellant with a copy of the Anders brief and petition
to withdraw. See id. at 1-2 (unpaginated). Appellant has not filed a response.
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The Anders brief raises evidentiary and sufficiency challenges, as well
as counsel’s reasons why the issues would be wholly frivolous. See Anders
Brief at 11-17. Accordingly, we determine Attorney Martini has complied with
the technical requirements of Anders and Santiago. See Cartrette, 83 A.3d
at 1032.
IV. Arguments and Analysis
Having determined that Attorney Martini has satisfied the technical
requirements of Anders and Santiago, we now review the issues presented
in the Anders brief and conduct an independent review of the record to
discern if there are non-frivolous issues. See Commonwealth v. Ziegler,
112 A.3d 656, 660 (Pa. Super. 2015). We conclude there are none.
Appellant first claims that the court erred by sustaining the
Commonwealth’s objections during his trial court’s cross-examination of its
“witnesses regarding self-serving statements made by” him. Anders Brief at
14.
Initially, we observe that this claim is waived because he did not include
that specific issue in his court-ordered concise statement. See Pa.R.A.P.
1925(b)(4)(vii) (issues not included in court-ordered statement are waived);
see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998) (holding
that where a trial court directs a defendant to file a Rule 1925(b) concise
statement, any issues not raised in that statement shall be waived).
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Second, Appellant does not specifically refer to where in the trial
transcripts the statements at issue are located. We remind Appellant and
counsel that it is not this Court’s role to “develop an argument for [Appellant],
nor will we scour the record to find evidence to support an argument[.]”
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007).
Accordingly, the claim would be waived on this basis as well. Moreover, even
if we were to address the argument, it would merit no relief.
By way of background, there were two instances of objections made by
the Commonwealth on “self-serving statement” grounds with regard to both
troopers. First, during the cross-examination of Trooper Mix, trial counsel
asked if Appellant told the officer if he had been taking any medication. N.T.,
1/15/21, at 24. The trooper responded that Appellant “said several different
things” but that it was hard to understand because he was rambling. Id. The
Commonwealth then objected, stating it was a “self-serving statement” of
Appellant. Id. Trial counsel responded that Appellant’s statements were
going to “com[e] in either way[,]” meaning by the trooper or by Appellant
taking the stand. Id. The trial court overruled the objections, finding: “The
statements, it might be self-serving but the Court can factor that into the
weight. There’s already been testimony about what [Appellant] said. They
have bearing on what occurred so I’m going to overrule the objection.” Id.
Second, during the cross-examination of Trooper Freer, trial counsel
asked him if Appellant made “any other statements regarding why his hands
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were fidgety[.]” N.T., 1/15/21, at 51. The Commonwealth objected, arguing
it was a “self-serving statement from [Appellant and he was] free to take the
stand and testify[.]” Id. at 52. The trial court sustained the objection.
Notably, Appellant did take the stand and testify that his fingers swelled up
due to arthritis and a mental health condition. See N.T., 1/26/21, at 4-6.
We note while Appellant refers to multiple “witnesses”9 in his issue, he
was successful as to his objection concerning Trooper Mix. As such, that
leaves us with the Trooper Freer objection. Generally speaking, “we may
reverse a trial court’s evidentiary rulings only if the trial court abused its
discretion.” Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super.
2010). “Evidence that is relevant is nonetheless inadmissible if it violates the
hearsay rule or any exclusionary rule of evidence.” Commonwealth v.
Lippert, 311 A.2d 586, 587 (Pa. 1973). “Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted[,]” and is
inadmissible absent certain exceptions. Commonwealth v. Puksar, 740
A.2d 219, 225 (Pa. 1999).10 The Pennsylvania Supreme Court has previously
held that “[w]here a defendant seeks at trial to introduce his own statements
made at the time of arrest to support his version of the facts, such testimony
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9 Anders Brief at 14.
10Hearsay statements lack “guarantees of trustworthiness fundamental to the
Anglo-American system of jurisprudence.” Commonwealth v. Smith, 681
A.2d 1288, 1290 (Pa. 1996) (citation omitted).
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is clearly offensive to the hearsay rule.” Benson, 10 A.3d at 1274-75, quoting
Commonwealth v. Murphy, 425 A.2d 352, 356 (Pa. 1981). See also
Commonwealth v. Lewis, 567 A.2d 1376, 1382 (Pa. 1989). As Attorney
Martini recognizes in the Anders brief, the issue is “frivolous”11 because trial
counsel clearly sought to introduce Appellant’s own out-of-court statements,
made to the trooper, to support his version of events, which violates the
hearsay rule. Thus, the trial court properly excluded this testimony. See
Murphy, supra.
Next, Appellant argues that there was insufficient evidence to support
his DUI conviction. See Anders Brief at 14-17.
It is well settled:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted). Furthermore, “a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact — while passing on the credibility
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11 Anders Brief at 14.
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of the witnesses and the weight of the evidence — is free to believe all, part,
or none of the evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa.
Super. 2017) (citation omitted). “In conducting this review, the appellate
court may not weigh the evidence and substitute its judgment for the fact-
finder.” Id. (citation omitted).
Appellant was convicted of violating 75 Pa.C.S. § 3802(d)(2), which
provides that “[a]n individual may not drive, operate or be in actual physical
control of the movement of a vehicle” when “[t]he individual is under the
influence of a drug or combination of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be in actual physical control of
the movement of the vehicle.” 75 Pa.C.S. § 3802(d)(2). “This section does
not require proof of a specific amount of a drug in the driver’s system. It
requires only proof that the driver was under the influence of a drug or
combination of drugs to a degree that the ability to drive is impaired.”
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation
omitted). “Expert testimony is not required” to support a guilty verdict. Id.
(citation omitted).
A review of the trial testimony in the present matter reveals the
following. The two investigating troopers initially observed Appellant’s vehicle
cross the fog and center lines several times. See N.T., 1/15/21, at 7. After
stopping the car, Trooper Mix testified that Appellant “was reluctant to roll the
window down entirely.” Id. at 33. Trooper Mix asked Appellant to perform
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two tests, the “Lack of Convergence Test” and the “Modified Romberg Balance
Test,” which he had to explain several times because Appellant did not
understand them. Id. at 21, 27-28. During the tests, Appellant “rocked back
and forth[,] constantly moving his hands[,] fidgeting.” Id. at 6. He also had
“eyelid tremors” and “very slurred speech [that] was very hard to
understand.” Id. at 21, 29. Trooper Mix stated that even though it was a
“cool” morning, Appellant was “sweating profusely.” Id. at 6. Trooper Mix
also observed “a pipe that is commonly used for smoking methamphetamines”
in the center console of Appellant’s vehicle. Id. at 8.
Trooper Freer stated he asked Appellant to perform Standard Field
Sobriety Tests, including the “Walk and Turn Test,” but Appellant was initially
“defiant to step out” of his car. N.T., 1/15/21, at 35. After further discussion,
Appellant exited the vehicle. Id. The trooper indicated he had to instruct
Appellant “multiple times” on how to complete the tests because “he struggled
to comprehend[.]” Id. at 37. Additionally, in regard to the “Walk and Turn
Test,” Trooper Freer testified that when he told Appellant to picture “a straight
line in front of him and place his left foot on that imaginary straight line[,] it
took [Appellant] nine total seconds to figure out which foot was his left foot.”
Id. Moreover, Appellant “completely forgot how to do the rest of the test.”
Id. Trooper Freer provided the instructions again, and Appellant “re-
attempted the test [but] still indicated . . . signs of impairment.” Id.
Appellant also refused to submit to a blood test. Trooper Freer testified that
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during transport, Appellant was in and out of consciousness with his mouth
still moving and mumbling. See id. at 42-43. Trooper Freer stated that
Appellant admitted that he had been driving with his knees because he was
fidgeting with his hands. See id. at 45. The trooper also noted that people
under the influence of methamphetamines possess “the [in]ability to not
move” and Appellant was asked multiple times “to hold still” but could not do
so. Id. at 44. Lastly, both troopers testified that Appellant’s actions and
mannerisms led them to believe that he was under the influence. See id. at
9, 36.
Appellant also took the stand. He testified that on the night of his arrest,
he “swerved over the yellow line” because he was driving with his knee and
his “fingers were swelling up” due to arthritis. N.T., 1/26/21, at 4-5. He
indicated he had several mental health conditions, including Tourette
Syndrome and bipolar disorder, but was not taking his medications at the time
of the incident. Id. at 6-7. Appellant indicated he has to “crack” his fingers
when they swell up to relieve the pain. Id. at 6. He also averred his sweating
was result of his bipolarism, and that he has “[u]ncontrollable muscle
movement.” Id. at 8, 11. He stated that during the “Walk and Turn Test,”
his toes started “swelling” and he “was just so frustrated [he] wanted to
scream.” Id. at 11. He testified that the officer asked him to perform the
“Finger to Nose Test,” but he did not have any recollection of the test. Id. at
12. He also alleged he was not able to complete either test because of his
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“physical health.” Id. at 12. Appellant admitted to weaving as he drove and
that he knew about the glass pipe in his center console. Id. at 14. When
asked for more information about how he came to possess the pipe, he
testified that he found it on a sidewalk in a nearby town when he was dropping
off a friend. Id. at 15. Appellant alleged he did not want “some child” to get
it. Id. He said he was going to give the pipe to someone or throw it away.
See id. Lastly, when asked about having difficulty with remembering the
night, Appellant stated that he does not “handle high amounts of stress well
[and he] get[s] flustered and frustrated and start[s] going all over the place
and then it’s just a downward spiral.” Id. at 16.
The trial court provided an on-the-record rationale for finding Appellant
guilty of DUI, which is summarized as follows. First, the court noted that
Appellant had an explanation for his actions, including that (1) he was weaving
because he was using his knees, (2) he was sweating because of a condition,
and (3) he could not complete the field sobriety tests because of his physical
health. See N.T., 1/26/21, at 22. Second, the court pointed out that the
video recording of the investigation demonstrated that Appellant was swaying
and moving around. See id. at 23. Third, the court credited the troopers’
testimony, which it described as “clear evidence” of what transpired, and
found Appellant not credible based on his lack of memory. Id.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we agree with the trial court’s determination that there
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was sufficient evidence to establish that Appellant was under the influence of
a controlled substance which impaired his ability to safely drive his vehicle
pursuant to Section 3802(d)(2). Appellant does not dispute that he was
swerving on the road and that he had a pipe commonly used for drugs in his
car. There was also evidence of his impaired balance and incoherent speech,
the failed field sobriety performances, and his lack of consciousness at certain
points during this investigation. The court, sitting as the fact-finder, was free
to accept the troopers’ testimony concerning Appellant’s impaired ability to
drive safely and reject Appellant’s justifications for his condition on the night
of the incident. See Miller, 172 A.3d at 640. Accordingly, there was sufficient
evidence to support his DUI conviction. Thus, we conclude that Appellant’s
second issue is also frivolous.
Lastly, our independent review of the record reveals no non-frivolous
issues to be raised on appeal. See Ziegler, 112 A.3d at 660.
IV. Conclusion
In sum, we agree with Attorney Martini that Appellant’s desired issues
are frivolous, and conclude the record reveals no other potential, non-frivolous
issue for appeal. Accordingly, we grant Attorney Martini’s petition to withdraw
from representation and affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed. Counsel’s petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2023
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