Com. v. Albertson, J.

• Court: Superior Court of Pennsylvania
• Decided: November 17, 2020
• Docket: 409 MDA 2020
• Status: Unpublished

Opinion

J-S38030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN TRAVIS ALBERTSON : : Appellant : No. 409 MDA 2020

Appeal from the Judgment of Sentence Entered January 27, 2020 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000480-2019

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 17, 2020

Justin Travis Albertson appeals from the judgment of sentence entered

on January 27, 2020, following his convictions for Driving Under the Influence

(“DUI”) - General Impairment, Duties at a Stop Sign, Reckless Driving,

Obstructing the Administration of Law or Other Governmental Function, and

Recklessly Endangering Another Person (“REAP”).1 Albertson challenges the

sufficiency and weight of the evidence. Albertson’s counsel has filed an

Anders2 brief and a petition to withdraw as counsel. Upon review, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.

____________________________________________

* Former Justice specially assigned to the Superior Court.

175 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3323(b), 75 Pa.C.S.A. § 3736(a), 18 Pa.C.S.A. § 5101, and 18 Pa.C.S.A. § 2705, respectively.

2 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S38030-20

The trial court accurately summarized the facts as follows:

In the early hours of November 26, 2019, Sara Luckenbaugh was thrown from her bed by a strange bedfellow, a car, belonging to and driven by Justin Albertson. At approximately 2:30 A.M., neighbors heard squealing tires, a loud bang, and breaking glass. Justin Albertson had driven his car into the home of Sara Luckenbaugh.

One of the first people on the scene of the accident was Robert Austera, a neighbor. Prior to the accident, Austera heard a vehicle squeal its tires, followed by a loud bang and the sound of breaking glass. When Austera arrived at the house, Albertson was still in the vehicle and was attempting to back out of the house. Once Albertson was removed from the vehicle, Austera noted that Albertson’s eyes were glassy and his speech was slurred.

Shortly thereafter, Officers Kesselring and Knepp of Hanover Borough Police Department arrived at the scene of the accident at the intersection of Pleasant Street and McAllister Street in Hanover. Officer Knepp arrived at the scene after being dispatched. Upon arriving, he observed a vehicle up on the curb and in the front of the house. Officer Knepp spoke to Sara Luckenbaugh and he observed that she seemed to be in shock.

Officer Kesselring first heard a crash and then was subsequently dispatched to the Pleasant and McAllister Street location. During his initial conversation with Albertson, Officer Kesselring observed a strong odor of alcohol coming from Albertson’s breath and person. He also observed that Albertson’s speech was slurred, and his eyes were glassy and bloodshot. When Officer Kesselring asked Albertson about the accident, Albertson was unable to articulate what had happened.

Officer Kesselring had Albertson perform field sobriety tests. Albertson performed the walk and turn test. During the walk and turn test Officer Kesselring noticed severe signs of intoxication and impairment including Albertson falling off the line twice and spinning around rather than turning. Albertson also performed the one leg stand test. Officer Kesselring also observed signs of impairment during the one

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leg stand test such as swaying, additionally, Albertson put his foot down numerous times and at one point almost fell over. Officer Kesselring was wearing a body camera at the time he administered the field sobriety tests; this video was shown to the jury.

At the conclusion of the field sobriety tests, Officer Kesselring placed Albertson under arrest for suspicion of driving under the influence of alcohol and controlled substance and he was transported to UPMC Hanover Hospital for a blood draw. Officer Kesselring notified Albertson of his right of refusal and read him the PennDOT DL-26 form. At that time, Albertson refused the test and began calling Officer Kesselring names and insulting him. Albertson also refused treatment for any potential injuries. As a result of Albertson’s refusal he was transported back to Hanover Borough Police Department.

Once back at Hanover Borough Police Department, Albertson refused to get out of the police car. After Albertson’s initial refusal, Officer Kesselring prepared and obtained a search warrant to obtain a blood draw. When Officer Kesselring notified Albertson of the search warrant he became combative and threatened to assault Officer Kesselring. Because of Albertson’s behaviors, Officer Kesselring feared for his safety or the safety of other officers. Albertson did not comply with the search warrant and would not submit to the blood draw.

Trial Court Opinion, filed 4/17/20, at 1-4 (citations to the trial transcript

omitted).

A jury found Albertson guilty of DUI, Obstructing the Administration of

Law or Other Governmental Function, and REAP. The trial court, sitting as

factfinder, found Albertson guilty of Duties at a Stop Sign and Reckless

Driving. The court sentenced Albertson to nine months to five years in prison.

After the trial court denied Albertson’s post-sentence motion, this timely

appeal followed. Albertson’s counsel filed a court-ordered Pa.R.A.P. 1925(b)

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statement in the trial court, and then submitted an Anders brief and petition

to withdraw in this Court.

Counsel’s Anders brief identifies six issues:

1. Whether the evidence . . . was insufficient to sustain Mr. Albertson’s conviction for Driving Under the Influence, General Impairment[?]

2. Whether the evidence was insufficient to sustain Mr. Albertson’s conviction of Obstructing Administration of Law or Other Governmental Function[?]

3. Whether the evidence was insufficient to sustain Mr. Albertson’s conviction of Recklessly Endangering Another Person[?]

4. Whether the evidence was insufficient to sustain Mr. Albertson’s conviction for Duties at a Stop Sign[?]

5. Whether the evidence was insufficient to sustain Mr. Albertson’s conviction for Reckless Driving[?]

6. Whether the weight of the evidence was against the verdict on all counts[?]

Anders Br. at 5.

Before reviewing the merits of this appeal, we must first determine

whether counsel has satisfied the necessary requirements for withdrawing as

counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.

2007) (en banc) (stating that “[w]hen faced with a purported Anders brief,

this Court may not review the merits of any possible underlying issues without

first examining counsel’s request to withdraw”). In order to withdraw pursuant

to Anders, counsel must: 1) petition the court for leave to withdraw stating

that, after a conscientious examination of the record, counsel has determined

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that the appeal would be frivolous; 2) furnish a copy of the brief to the client;

and 3) advise the client that he or she has the right to retain other counsel or

proceed pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032

(Pa.Super. 2013) (en banc).

Further, in the Anders brief, counsel seeking to withdraw 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel

meets all of the above obligations, “it then becomes the responsibility of the

reviewing court to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.” Id. at 355 n.5 (quoting Commonwealth v. McClendon, 434 A.2d

1185, 1187 (Pa. 1981)).

Instantly, we find that counsel has complied with all of the above

technical requirements. In her Anders brief, counsel has provided a summary

of the procedural and factual history of the case with citations to the record.

Further, counsel’s brief identifies six issues that could arguably support the

appeal, as well as counsel’s assessment of why the appeal is frivolous, with

citations to the record. Additionally, counsel served Albertson with a copy of

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the Anders brief and advised him of his right to proceed pro se or to retain a

private attorney to raise any additional points he deemed worthy of this

Court’s review. Petition to Withdraw, 6/8/20, at ¶ 5. Albertson has not

responded to counsel’s petition to withdraw. As counsel has met the technical

requirements of Anders and Santiago, we will proceed to the issues counsel

has identified.

The first five issues presented in counsel’s Anders brief challenge the

sufficiency of the evidence. When reviewing such a challenge, our standard of

review is de novo, while “our scope of review is limited to considering the

evidence of record, and all reasonable inferences arising therefrom, viewed in

the light most favorable to the Commonwealth as the verdict winner.”

Commonwealth v. Rushing, 99 A.3d 416, 420-421 (Pa. 2014). “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.” Commonwealth v. Widmer, 744 A.2d

745, 751 (Pa. 2000). The Commonwealth may sustain its burden by means of

wholly circumstantial evidence. Commonwealth v. Dix, 207 A.3d 383, 390

(Pa.Super. 2019). Further, the trier of fact is free to believe, all, part, or none

of the evidence presented when making credibility determinations.

Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 2016). “[T]his

Court may not substitute its judgment for that of the factfinder, and where

the record contains support for the convictions, they may not be disturbed.”

Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 2016).

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The first issue contends the trial evidence was insufficient to support his

conviction for DUI because the Commonwealth failed to prove that Albertson

was incapable of safely driving due to the consumption of alcohol. Section

3802(a)(1) of the Vehicle Code provides that “[a]n 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.” 75 Pa.C.S.A. § 3802(a)(1). Accordingly, “the

Commonwealth must show: (1) that the defendant was the operator of a

motor vehicle and (2) that while operating the vehicle, the defendant was

under the influence of alcohol to such a degree as to render him or her

incapable of safe driving.” Commonwealth v. Smith, 831 A.2d 636, 638

(Pa.Super. 2003) (citation omitted). “To establish the second element, it must

be shown that alcohol has substantially impaired the normal mental and

physical faculties required to safely operate the vehicle.” Commonwealth v.

Palmer, 751 A.2d 223, 228 (Pa.Super. 2000).

The types of evidence that the Commonwealth may proffer in a subsection 3802(a)(1) prosecution include but are not limited to, the following: the offender’s actions and behavior, including manner of driving and ability to pass field sobriety tests; demeanor, including toward the investigating officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). Further,

“[e]vidence that the driver was not in control of himself, such as failing to

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pass a field sobriety test, may establish that the driver was under the influence

of alcohol to a degree which rendered him incapable of safe driving,

notwithstanding the absence of evidence of erratic or unsafe driving.” Palmer,

751 A.2d at 228.

In its Pa.R.A.P. 1925(a) opinion, the trial court addressed Albertson’s

DUI sufficiency claim as follows:

At trial, Officer Kesselring testified to Albertson’s physical appearance. Officer Kesselring noted that immediately upon interacting with Albertson he could smell the odor of alcohol emanating from his person. He also noted Albertson’s bloodshot eyes. When Officer Kesselring administered the walk and turn test and the one leg stand test, Albertson exhibited many signs of intoxication, including not being able to turn correctly and having to put his foot down and nearly falling over. The jury was able to view video evidence of this as Officer Kesselring was wearing a body camera. Additionally, when Officer Kesselring brought Albertson to booking he became extremely aggressive and threatened and insulted Officer Kesselring. Most obvious of all, Justin Albertson drove his vehicle into a house. When Officer Kesselring asked Albertson about the accident, he was unable to articulate what happened.

Trial Ct. Op. at 10.

The record supports the trial court’s analysis of this issue. The trial

testimony established the requisite evidence of intoxication necessary for the

jury as factfinder to conclude that Albertson was unable to drive safely at the

time he crashed his vehicle into Sara Luckenbaugh’s house.

Albertson’s Pa.R.A.P. 1925(b) statement concedes that Officer

Kesselring determined that he failed the standard field sobriety tests, but

contends that Officer Kesselring failed to ask Albertson if he had sustained any

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injuries due to the accident or had any pre-existing medical conditions that

might have hindered his ability to complete the standard field sobriety tests

as instructed. Albertson’s Rule 1925(b) Statement at 2. However, this

argument erroneously suggests that the Commonwealth had the burden of

proof on this issue. See Commonwealth v. Collins, 810 A.2d 698, 701

(Pa.Super. 2002) (concluding that “when a defense is asserted that relates to

the defendant’s mental state or information that is peculiarly within the

defendant’s own knowledge and control, the general rule is that the defendant

has the burden of proving the defense by a preponderance of the evidence”).

Viewing the evidence in the light most favorable to the Commonwealth as the

verdict winner, there is no reasonable argument that sufficient evidence did

not support Albertson’s DUI conviction.

The next issue challenges the sufficiency of the evidence to support the

conviction for Obstructing the Administration of Law or Other Governmental

Function. According to the Rule 1925(b) statement, Albertson “never indicated

he would not comply with the search warrant nor did his actions indicate his

intent was to prevent his blood from being drawn.” Albertson’s Rule 1925(b)

Statement at 3. He allegedly did not engage in any sort of “affirmative

interference” that would have impeded Officer Kesselring from obtaining his

blood since he did not become physical with Officer Kesselring or engage in

any on-going or persistent conduct. Id.

The offense of Obstructing the Administration of Law or Other

Governmental Function is defined as follows:

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A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

18 Pa.C.S.A. § 5101. “Thus, the crime consists of two elements: 1) an intent

to obstruct the administration of law; and 2) an act of ‘affirmative interference

with governmental functions.’” Commonwealth v. Palchanes, 224 A.3d 58,

60 (Pa.Super. 2019) (quoting Commonwealth v. Gentile, 640 A.2d 1309,

1312 (Pa.Super. 1994)). The statute was “designed to cover a broad range of

behavior that impedes or defeats the operation of government.” Id. (quoting

Model Penal Code § 242.1, Explanatory Note).

Instantly, the record belies the assertion that Albertson never indicated

he would not comply with the search warrant for a blood draw. The testimony

was clear that after Albertson was arrested, he was transported to the hospital

where he refused a blood test and began calling Officer Kesselring names and

insulting him. As a result of Albertson’s refusal to take a blood test, he was

taken back to the police station, where he refused to get out of the police car.

Consequently, Officer Kesselring prepared and obtained a search warrant to

obtain a blood draw. Despite being presented with a valid search warrant by

a police officer, Albertson became combative and threatened to physically

assault Officer Kesselring. Officer Kesselring testified that Albertson walked

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towards him with his arms clenched and fists down while making these verbal

threats and that he feared for his safety or the safety of other officers. N.T.,

11/19/19, at 112-113.

Ultimately, Albertson refused to comply with the warrant and would not

allow a blood draw to take place, thus impeding Officer Kesselring’s

investigation of the DUI case. The contention that Albertson did not become

physical with Officer Kesselring lacks any basis in the record since the

interference necessary to sustain a conviction for Obstructing the

Administration of Law or Other Governmental Function “need not involve

physical contact with the government official as he performs his duties.”

Palchanes, 224 A.3d at 60 (citation omitted). Therefore, Albertson’s

intentional actions in being combative with law enforcement and refusing to

allow a blood draw to occur interfered with the administration of law. There is

no reasonable argument that the evidence was not sufficient to support

Albertson’s conviction for this offense.

The third issue challenges the sufficiency of the evidence to sustain

Albertson’s conviction for REAP. The evidence was allegedly insufficient to

prove that he recklessly engaged in conduct that might have placed Ms.

Luckenbaugh in danger of death or serious bodily injury. Albertson’s Rule

1925(b) Statement at 3-4. This is allegedly so because “there was no evidence

presented regarding the manner in which [he] drove to indicate it was done

in a reckless manner or that it involved a gross deviation from the standard

of conduct that a reasonable person would observe.” Id. at 4.

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A person commits REAP “if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.” 18 Pa.C.S.A. § 2705. Therefore, in order to sustain a conviction for

REAP, “the Commonwealth must prove that the defendant (1) possessed a

mens rea [of] recklessness, (2) committed a wrongful deed or guilty act (actus

reus), and (3) created by such wrongful deed the danger of death or serious

bodily injury to another person.” Commonwealth v. Bostian, 232 A.3d 898,

909 (Pa.Super. 2020) (citation and internal quotation marks omitted). “The

reckless mental state required for a REAP conviction has been defined as a

conscious disregard of a known risk of death or great bodily harm to another

person.” Id. (citation and internal quotation marks omitted). “[D]riving under

the influence of intoxicating substances does not create legal recklessness per

se but must be accompanied with other tangible indicia of unsafe driving to a

degree that creates a substantial risk of injury which is consciously

disregarded.” Commonwealth v. Hutchins, 42 A.3d 302, 311 (Pa.Super.

2012) (quoting Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083

(Pa.Super. 1998)).

Here, although there was no eyewitness testimony of Albertson’s driving

before the accident, there was testimony from Mr. Austera, the neighbor, that

he heard a vehicle rev its engine and squeal its tires right before the crash.

N.T., 11/19/19, at 87. The evidence further indicated that Albertson drove his

car into Ms. Luckenbaugh’s house, the impact of which was so great that it

caused the house to split into two sides and tossed Ms. Luckenbaugh off her

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bed and onto the floor. Id. at 80-81, 128. It is clear that Albertson’s conduct

placed Ms. Luckenbaugh “in danger of death or serious bodily injury.” See 18

Pa.C.S.A. § 2705. While it is true that driving under the influence alone cannot

establish the element of recklessness for REAP, the evidence admitted at his

trial included “other tangible indicia of unsafe driving to a degree that creates

a substantial risk of injury which is consciously disregarded[,]” Hutchins, 42

A.3d at 311, therefore establishing the mens rea of recklessness for REAP. As

such, the third claim lacks any reasonable basis in the record.

The next issue challenges the evidence supporting the conviction for

Duties at a Stop Sign. The claim is that there was no testimony that Albertson

failed to stop at a stop sign. Albertson’s Rule 1925(b) Statement at 4-5.

The offense of Duties at a Stop Sign requires “every driver of a vehicle

approaching a stop sign” to “stop at a clearly marked stop line[.]” 75 Pa.C.S.A.

§ 3323(b). Although there were no eyewitnesses who saw Albertson run the

stop sign, there was circumstantial evidence that he failed to stop. The

Commonwealth presented photographs showing that Ms. Luckenbaugh’s

house was located on the corner of an intersection with a stop sign in close

proximity to her residence. N.T., 11/19/19, at 71-74; Commonwealth’s Exhibit

2. The photographs also showed Albertson’s car lodged into the house, as well

as significant damage to the residence. N.T., 11/19/19, at 79-80;

Commonwealth’s Exhibits 9, 10. Another photograph showed a street sign that

had been planted in the sidewalk in front of Ms. Luckenbaugh’s residence that

had been knocked over due to the impact of the crash. N.T., 11/19/19, at 79-

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80; Commonwealth’s Exhibit 9. There was also evidence of skid marks in the

roadway. N.T., 11/19/19, at 74. Albertson’s neighbor, Mr. Austera, also

testified that he heard a vehicle “start up and begin revving its engine, and

said vehicle took off down the road and came back a couple minutes later and

began to squeal its tires, and ultimately I heard a loud bang and a bunch of

glass breaking and a bunch of noises.” Id. at 87. As the trial court aptly noted,

“[a]t no point did Austera testify that he heard [Albertson’s] vehicle breaking.”

Trial Ct. Op. at 17. The sufficiency challenge to the conviction for Duties at a

Stop Sign lacks a reasonable basis in fact or law.

The fifth issue is that the evidence was insufficient to sustain his

conviction for Reckless Driving because there was allegedly no evidence

regarding the manner in which he drove. Albertson’s Rule 1925(b) Statement

at 5.

A person is guilty of Reckless Driving if he or she “drives any vehicle in

willful or wanton disregard for the safety of persons or property[.]” 75

Pa.C.S.A. § 3736(a).

Here, in finding that the evidence was sufficient to support Albertson’s

conviction for Reckless Driving, the trial court stated:

While the evidence to support this charge is entirely circumstantial, the Commonwealth has proven beyond a reasonable doubt that [Albertson] drove in such a manner that there existed a substantial risk that injury would result from his driving. First, the testimony of Mr. Austera was that he heard a vehicle take off down the road, he then heard squealing tires, and then he heard a crash. Second, there was the crash itself that resulted in [Albertson’s] car being inside the home of Sara Luckenbaugh, who could have

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sustained serious bodily injury as a result of [Albertson’s] willful or wanton disregard for the safety of persons.

Trial Ct. Op. at 18.

Thus, it was undisputed that Albertson drove his vehicle into Ms.

Luckenbaugh’s house. The crash caused significant property damage to the

residence and was without regard to the safety of the residents of the house.

Viewing all of the evidence admitted at trial in the light most favorable to the

Commonwealth as the verdict winner, there is no reasonable basis on which

to argue that the evidence does not support Albertson’s conviction for Reckless

Driving.

The final issue challenges the weight of the evidence on all counts. When

reviewing a weight challenge on appeal, we do not determine ourselves

whether the verdict was against the weight of the evidence. Rather, we review

the trial court’s exercise of its discretion in determining, in the first instance,

whether to sustain the challenge. Commonwealth v. Johnson, 192 A.3d

1149, 1152-1153 (Pa.Super. 2018).

It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011). Further,

“[w]hen the challenge to the weight of the evidence is predicated on the

credibility of trial testimony, our review of the trial court’s decision is

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extremely limited.” Commonwealth v. Bowen, 55 A.3d 1254, 1262

(Pa.Super. 2012) (citation omitted).

Albertson failed to raise weight claims challenging the convictions of

Duties at a Stop Sign and Reckless Driving in the trial court. Therefore, those

claims are waived. See Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa.Super. 2012). Regarding the convictions for DUI, Obstructing the

Administration of Law or Other Governmental Function, and REAP, we perceive

no reasonable basis on which Albertson could challenge the trial court’s

rejection of the weight challenge. The jury, sitting as factfinder and sole judge

of credibility, was free to believe all, part, or none of the evidence presented

in judging the credibility of the witnesses, and nothing in the record provides

any reasonable basis for arguing that the trial court abused its discretion in

rejecting the weight challenges to these convictions. Houser, 18 A.3d at

1135-1136.

In sum, we find that the issues raised in counsel’s Anders brief are

wholly frivolous. Further, after an independent review of the record, we

conclude that no other, non-frivolous issue exists. Therefore, we grant

counsel’s petition to withdraw. Having determined that the appeal is wholly

frivolous, we affirm the judgment of sentence.

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Petition to withdraw as counsel granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/17/2020

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