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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JENNIFER LYNN HENRY,
Appellant No. 550 MDA 2016
Appeal from the Judgment of Sentence March 17, 2016
in the Court of Common Pleas of Adams County
Criminal Division at No.: CP-01-CR-0000694-2015
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 20, 2016
Appellant, Jennifer Lynn Henry, appeals from the judgment of
sentence imposed on March 17, 2016, following her non-jury conviction of
four counts of driving under the influence (DUI),1 possession of a small
amount of marijuana,2 possession of drug paraphernalia,3 operating a
vehicle without required financial responsibility,4 disregard for traffic lanes,5
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii), (iii) and d(2).
2
35 P.S. § 780-113(a)(31)(i).
3
35 P.S. § 780-113(a)(32).
4
75 Pa.C.S.A. § 1786(f).
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and careless driving.6 Appellant’s counsel has filed a brief and a petition to
withdraw under Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the
appeal is wholly frivolous. We affirm the judgment of sentence and grant
counsel’s request to withdraw.
On May 9, 2015, at approximately 12:48 a.m., Pennsylvania State
Trooper George Jones was on routine patrol in Adams County when he saw a
car, later determined to be driven by Appellant, make an abrupt swerve.
(See N.T. Suppression Hearing, 10/19/15, at 5-9, 11). Trooper Jones had
received training and certification in detecting intoxicated drivers and had
arrested approximately seventy drivers for DUI. (See id. at 6-7). Knowing
that such abrupt swerves were a sign of impairment, Trooper Jones
attempted to close the gap between himself and Appellant’s vehicle to
observe her driving behavior. (See id. at 8). Trooper Jones witnessed the
vehicle weaving within the lane, drifting to and from the fog line and going
over the double yellow line. (See id. at 9-10). At that point, Trooper Jones
initiated a traffic stop, believing that the erratic driving was a sign of
intoxication. (See id. at 9-10).
_______________________
(Footnote Continued)
5
75 Pa.C.S.A. § 3309(1).
6
75 Pa.C.S.A. § 3714(a).
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When Trooper Jones made contact with Appellant, he smelled
marijuana and observed her eyes were “glossy and bloodshot and I noticed
her tongue actually was green.” (Id. at 11). Trooper Jones administered
field sobriety tests to Appellant, who performed poorly. (See Stipulations of
Fact for January 12, 2016 Non-Jury Trial, 1/12/16, at 2). Appellant
consented to a search of her vehicle, and in her purse, which was on the
passenger seat, Trooper Jones found a smoking device with marijuana
residue, a baggie with a small amount of marijuana, and two cigarettes
laced with marijuana. (See id. at 2-3). Trooper Jones arrested Appellant
and transported her to the hospital for chemical testing; Appellant consented
to the chemical tests. (See id. at 3). Appellant’s blood tested positive for
Dihydrocodiene/Hydrocodol, Diazepam, Nordiazepam, Alprazolam,
marijuana, Codeine, and Hydrocodone. (See id. at 4).
On August 19, 2015, the Commonwealth filed a criminal information
charging Appellant with DUI and related offenses. (See Information,
8/19/15, at unnumbered pages 1-2). On September 23, 2015, Appellant
filed a motion to suppress. A hearing took place on October 19, 2015. At
issue at the hearing was whether Trooper Jones stopped Appellant on
suspicion of DUI, which only required reasonable suspicion to justify the stop
or for erratic driving, which required probable cause. (See N.T. Suppression
Hearing, 10/19/15, at 3-4). Trooper Jones testified throughout the hearing
that Appellant’s erratic driving led him to believe that she was driving under
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the influence. (See id. at 8, 10, 18, 21-22). However, on cross-
examination, Trooper Jones admitted that, in his written report, drafted on
the day of the incident, he did not state that he stopped her on suspicion of
DUI but rather for erratic driving. (See id. at 16-17).
On October 23, 2015, the trial court denied Appellant’s motion to
suppress. The trial court specifically found that Trooper Jones had “pointed
to specific and articulable facts which led him to suspect that [Appellant
might] be driving under the influence of alcohol or controlled substances.”
(Opinion, 10/23/15, at 5). The trial court found that Trooper Jones had
sufficient reasonable suspicion to justify the traffic stop.
A stipulated bench trial took place on January 12, 2016. The trial
court found Appellant guilty of DUI and the related offenses. (See Order,
1/12/16, filed 1/19/16, at 1). Following receipt of a pre-sentence
investigation report, on March 17, 2016, the trial court sentenced Appellant
to an aggregate term of intermediate punishment of sixty months, with
ninety of those days on restrictive sanctions and the remainder on
restorative sanctions. (See Order, 3/17/16, at 2).
On March 22, 2016, Appellant filed a post-sentence motion, arguing
that the trial court should have applied the probable cause standard rather
than the reasonable suspicion standard to the motor vehicle stop and that
the evidence was insufficient to show probable cause to justify the stop of
Appellant’s motor vehicle. (See Appellant’s Post-Sentence Motion, 3/22/16,
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at unnumbered pages 2-3). The trial court denied the motion on March 24,
2016.
The instant, timely appeal followed. On April 4, 2016, the trial court
ordered Appellant to file a concise statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b). On April 22, 2016, Appellant filed a timely
Rule 1925(b) statement. See id. On May 3, 2016, the trial court filed an
opinion. See Pa.R.A.P. 1925(a).
On June 24, 2016, counsel filed a motion to withdraw in this Court.
Appellant has not filed a response to counsel’s motion.
On appeal, the Anders brief raises the following questions for our
review:
Whether the [trial c]ourt abused its discretion in applying
reasonable suspicion instead of probable cause as the requisite
standard to the stop and therefore finding the stop to be valid?
Whether the [trial c]ourt abused its discretion in
misappropriating the weight of the evidence in favor of the
testimony by the officer, five months after the incident, over the
police report, which was filed contemporaneously to the traffic
stop?
(Anders Brief, at 6).
Appellant’s counsel has petitioned for permission to withdraw and has
submitted an Anders brief, which is procedurally proper for counsel seeking
to withdraw on direct appeal. See Anders, supra at 744. Court-appointed
counsel who seeks to withdraw from representing an appellant on direct
appeal on the basis that the appeal is frivolous must:
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. . . (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, supra at 361. When we receive an Anders brief, we first rule on
the petition to withdraw, and then review the merits of the underlying
issues. See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super.
2010). In addition, “[p]art and parcel of Anders is our Court’s duty to
review the record to insure no issues of arguable merit have been missed or
misstated.” Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super.
2006).
In the instant matter, counsel has substantially complied with all the
requirements of Anders and Santiago. Specifically, he has petitioned this
Court to withdraw because he found “. . . no merit in any actual or potential
issues and is hereby certifying that the appeal is frivolous.” (Petition to
Withdraw as Counsel, 6/24/16, at 14). In addition, after his review of the
record, counsel filed a brief with this Court that provides a summary of the
procedural history and facts with some citations to the record, refers to any
facts or legal theories that arguably support the appeal, and explains why he
believes the appeal is frivolous. (See Anders Brief, at 7-11). Lastly, he has
attached, as an exhibit to his brief, a copy of the letter sent to Appellant
giving her notice of her rights, and including a copy of the Anders brief and
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the petition. (See id., at Appendix E); see also Commonwealth v.
Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005). As noted above,
Appellant has not responded. Because counsel has substantially complied
with the dictates of Anders, Santiago, and Millisock, we will examine the
issues set forth in the Anders brief. See Garang, supra at 240-41.
Both of the issues raised in the Anders brief concern the denial of
Appellant’s motion to suppress. When we review a ruling on a motion to
suppress, “[w]e must determine whether the record supports the
suppression court’s factual findings and the legitimacy of the inferences and
legal conclusions drawn from these findings.” Commonwealth v. Holton,
906 A.2d 1246, 1249 (Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa.
2007) (citation omitted). Because the suppression court in the instant
matter found for the prosecution, we will consider only the testimony of the
prosecution’s witnesses and any uncontradicted evidence supplied by
Appellant. See id. If the evidence supports the suppression court’s factual
findings, we can reverse only if there is a mistake in the legal conclusions
drawn by the suppression court. See id.
The Anders brief first claims that the trial court erred in applying the
reasonable suspicion standard, rather than the more stringent probable
cause standard to the stop of Appellant’s vehicle. (See Anders Brief, at 9).
We disagree.
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In Pennsylvania, the authority that addresses the requisite cause for a
traffic stop is statutory; we find it at 75 Pa.C.S.A. § 6308(b), which
provides:
(b) Authority of police officer.—Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers
or has reasonable suspicion that a violation of this title is
occurring or has occurred, he may stop a vehicle, upon request
or signal, for the purpose of checking the vehicle’s registration,
proof of financial responsibility, vehicle identification number or
engine number or the driver’s license, or to secure such other
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
Id. This Court has further stated:
[W]hen considering whether reasonable suspicion or
probable cause is required constitutionally to make a vehicle
stop, the nature of the violation has to be considered. If it is not
necessary to stop the vehicle to establish that a violation of the
Vehicle Code has occurred, an officer must possess probable
cause to stop the vehicle. Where a violation is suspected, but a
stop is necessary to further investigate whether a violation has
occurred, an officer need only possess reasonable suspicion to
make the stop.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015); see also
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc), appeal denied, 25 A.3d 327 (Pa. 2011) (holding police officer must
have probable cause to justify stop of vehicle when investigation subsequent
to stop serves no “investigatory purpose relevant to the suspected
violation”).
Here, Trooper Jones specifically testified that he saw Appellant’s
vehicle make an “abrupt swerve”, and based upon his training and
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experience, he was aware that such abrupt swerves “are indicative” of
impaired driving. (N.T. Suppression Hearing, 10/19/15, at 6). Therefore,
Trooper Jones followed Appellant’s vehicle. (See id. at 8). While observing
the vehicle, Trooper Jones saw Appellant weaving within the lane, riding the
fog line, and crossing over the double yellow line. (See id. at 9-10).
Trooper Jones stated that based upon his training and experience, these
were all signs of possible intoxication or impairment. (See id. at 10). He
reiterated that the totality of these driving behaviors, all signs of possible
intoxication, led him to initiate the motor vehicle stop. (See id.). Thus,
Trooper Jones was able to state specific and articulable facts indicating that
Appellant might be driving under the influence and therefore, further
investigation was required. See Commonwealth v. Sands, 887 A.2d 261,
271-72 (Pa. Super. 2005). Accordingly, the trial court did not err in holding
that the Commonwealth was only required to prove reasonable suspicion and
not probable cause to stop Appellant’s motor vehicle. See id. The first
issue does not merit relief.
In its second issue, the Anders brief challenges the weight of evidence
at the suppression hearing, alleging that the trial court erred in crediting the
testimony of Trooper Jones rather than his written report, which did not
mention DUI, and which he wrote on the same day as the incident. (See
Anders Brief, at 10). However, Appellant has not preserved this claim for
our review.
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We have long held that this Court cannot consider, in the first
instance, a claim that the verdict is against the weight of the evidence. See
Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,
while Appellant did file a post-sentence motion, she challenged the
sufficiency of the evidence, not the weight. (See Appellant’s Post-Sentence
Motion, 3/22/16, at unnumbered page 3). Thus, the issue is not preserved
for our review. See Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa.
Super. 2003).
Moreover, even if we were to address the merits of the weight of the
evidence claim, it would fail.
Our scope and standard of review of a weight of the evidence claim is
as follows:
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
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the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and internal quotation marks omitted). “Thus, the trial
court’s denial of a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949
A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation
omitted).
In its Rule 1925(a) opinion, the trial court explained that as the finder
of fact, it “[was] free to believe or disbelieve all, part or none of the
testimony. . . .” and it chose to credit Trooper Jones’ testimony. (Trial Court
Opinion, 5/03/16, at 5); see Commonwealth v. Griscavage, 517 A.2d
1256, 1259 (Pa. 1986). “[I]t is for the fact-finder to make credibility
determinations, and the finder of fact may believe all, part, or none of a
witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.
Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted).
This Court cannot substitute our judgment for that of the trier of fact. See
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S.Ct. 1792 (2014). This issue does not merit relief.
Appellant’s issues lack merit. Further, this Court has conducted an
independent review of the record as required by Anders and Santiago and
finds that no meritorious issues exist.
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Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2016
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