Com. v. Finneran, E.

• Court: Superior Court of Pennsylvania
• Decided: November 10, 2022
• Docket: 885 MDA 2022
• Status: Unpublished

Opinion

J-S35033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERICA LYNN FINNERAN : : Appellant : No. 885 MDA 2022

Appeal from the Judgment of Sentence Entered June 3, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003056-2020

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

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 10, 2022

Appellant Erica Lynn Finneran appeals from the judgment of sentence

entered by the Court of Common Pleas of Dauphin County after Appellant was

convicted of Driving while Under the Influence of a Controlled Substance in

violation of 75 Pa.C.S.A. § 3802(d)(1)(i). Counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87

S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d

349 (2009) (hereinafter “Anders brief”). We affirm the judgment of sentence

and grant counsel’s petition to withdraw.

On March 29, 2020, Pennsylvania State Police Corporal Darren Mordorf

seized Appellant’s vehicle, after finding Appellant had stopped in the travel

lane of State Route 225 in the area of Bastian Road. Notes of Testimony (N.T.),

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S35033-22

Trial, 4/1/22, at 5-8. Thereafter, at approximately 8:50 p.m., Trooper Kyle

Kinney was summoned to the scene to provide assistance and he approached

the driver side of Appellant’s vehicle. N.T. at 7.

Trooper Kinney immediately observed an odor of marijuana emanating

from the vehicle and noticed that Appellant was speaking very quickly and her

eyes were bloodshot with dilated pupils. N.T. at 7. Based on these

observations, Trooper Kinney required Appellant to exit her vehicle to perform

field sobriety testing such as the horizontal gaze nystagmus test, the walk and

turn test, the one-leg stand test, and the lack of convergence test. N.T. at 9-

10. After Appellant exhibited multiple signs of impairment during field sobriety

testing, she admitted that she had smoked marijuana earlier that day and had

been taking a prescription amphetamine. N.T. at 11.

At that point, Trooper Kinney placed Appellant under arrest for suspicion

of DUI and transported her for a blood draw at the state police barracks. N.T.

at 11-13. Appellant consented to the blood test, which was performed at 9:44

p.m. and showed the presence of Delta-9 THC, the active ingredient for

marijuana, as well as amphetamines. N.T. at 12-14.

After Appellant was placed under arrest and charged with DUI, Appellant

filed no pretrial motions. While initially Appellant was scheduled to enter a

guilty plea, she ultimately decided to proceed to a bench trial. Trooper Kinney

testified for the prosecution and Appellant testified on her own behalf, claiming

she has been prescribed medical marijuana.

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On April 1, 2022, the trial court found Appellant guilty of DUI and

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

3, 2022, the trial court sentenced Appellant to six months’ restrictive

probation with the first 72 hours on electronic monitoring/house arrest and

also imposed a fine and costs. Appellant did not file a post-sentence motion.

On June 15, 2022, Appellant filed this notice of appeal.

On June 20, 2022, the trial court ordered Appellant to file a Concise

Statement of Errors on Appeal pursuant to Pa.R.A.P. 1925(b). Thereafter, on

July 6, 2022, counsel filed notice of his intent to file an Anders brief in lieu of

a concise statement. As such, the trial court did not prepare a responsive

Pa.R.A.P. 1925(a) opinion.

We must first evaluate counsel's request to withdraw before reaching

the merits of the case. Commonwealth v. Washington, 63 A.3d 797, 800

(Pa.Super. 2013); see also Commonwealth v. Rojas, 874 A.2d 638, 639

(Pa.Super. 2005) (stating, “[w]hen faced with a purported Anders brief, this

Court may not review the merits of the underlying issues without first passing

on the request to withdraw”) (citation omitted).

There are procedural and briefing requirements imposed upon an

attorney who seeks to withdraw on appeal pursuant to which counsel must:

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.

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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). We further review counsel's Anders brief for

compliance with the requirements set forth in the Supreme Court’s decision in

Santiago:

[W]e hold that in the Anders brief that accompanies court- appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 602 Pa. at 178-79, 978 A.2d at 361.

The Supreme Court in Santiago clarified that Anders does not

“require[] that counsel's brief provide an argument of any sort, let alone the

type of argument that counsel develops in a merits brief. [W]hat the brief

must provide under Anders are references to anything in the record that

might arguably support the appeal.” Id. at 176, 978 A.2d at 359-360.

Moreover, counsel must provide a copy of the Anders brief to his client.

“Attending the brief must be a letter that advises the client of his right to: ‘(1)

retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)

raise any points that the appellant deems worthy of the court’s attention in

addition to the points raised by counsel in the Anders brief.’”

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa.Super. 2014) (quoting

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super. 2007)).

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In this case, counsel filed an Anders brief with his application to

withdraw as counsel, in which he states that he made a conscientious

examination of the record and determined there are no non-frivolous grounds

for the appeal. We find counsel’s brief and petition substantially comply with

the technical requirements of Anders and Santiago.

Moreover, counsel provided this Court with a copy of the letter which he

sent to Appellant advising her of her right to retain new counsel or to proceed

pro se to raise any points that she deems worthy of this Court's attention. See

Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore, we

proceed to examine the issue counsel identified in the Anders brief and then

conduct “a full examination of all the proceedings, to decide whether the case

is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195

(Pa.Super. 2018) (en banc) (quotation omitted).

As noted above, in response to the trial court’s 1925(b) order, counsel

filed a statement of his intent to file an Anders brief and noted that Appellant

wished to challenge the sufficiency of the evidence supporting her DUI

conviction. Counsel also noted that Appellant had not preserved any other

claims in the lower court for appeal.

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

of review is as follows:

When reviewing a challenge to the sufficiency of the evidence, we evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving it the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751

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(2000). “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. Lynch, 72 A.3d 706, 708 (Pa.Super. 2013) (en banc) (citation omitted). Any doubt about the defendant's guilt is to be resolved by the fact-finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001). Additionally, the Commonwealth may sustain its burden solely by means of circumstantial evidence. Lynch, 72 A.3d at 708.

Commonwealth v. Lake, 281 A.3d 341, 345–46 (Pa.Super. 2022).

Appellant was charged with DUI under Section § 3802(d)(1) of the

Vehicle Code, which provides that:

[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device, and Cosmetic Act [(“CSA”)];

(ii) Schedule II or Schedule III controlled substance, as defined in [the CSA], which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

75 Pa.C.S.A. § 3802(d)(1).

Thus, Section 3802(d)(1) prohibits an individual from driving after using

a Schedule I controlled substance. To sustain a conviction under this Section

3802(d)(1) on this basis, the Commonwealth must provide that the defendant,

at the time of driving, had in his blood either (1) the active compound of a

Schedule I drug or (2) a metabolite of a Schedule I drug. Commonwealth v.

Given, 244 A.3d 508, 511 (Pa.Super. 2020). The CSA classifies marijuana or

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“marihuana” as a Schedule I controlled substance. 35 P.S. § 780-104(1)(iv).

This Court has noted that Delta-9-THC is the active compound in marijuana.

Given, 244 A.3d at 509. It is also important to recognize that under Section

3802(d)(1), proof of actual impairment is not required. Commonwealth v.

Dabney, 274 A.3d 1283, 1288 (Pa.Super. 2022) (citations omitted).

The record contains ample evidence to support Appellant’s conviction

under Section 3802(d)(i). Troopers found Appellant in physical control of her

vehicle, which was blocking the travel lane of SR225. As Appellant

demonstrated indicators of impairment, failed sobriety testing and admitted

to smoking marijuana earlier that day, the troopers placed Appellant under

arrest and requested that she submit to a blood draw. Appellant consented to

the blood draw, which showed that her blood contained Delta 9-THC, the

active ingredient in marijuana, at the time she had been driving.

We acknowledge that Appellant had claimed at trial that she had been

prescribed medical marijuana. However, the Vehicle Code provides that “[t]he

fact that a person charged with [DUI] is or has been legally entitled to use

alcohol or controlled substances is not a defense to a charge of [DUI].” 75

Pa.C.S.A. § 3810. In a recent en banc decision, Commonwealth v. Stone,

273 A.3d 1163 (Pa.Super. 2022) (en banc), this Court concluded that as

“marijuana remains a Schedule I controlled substance under current

Pennsylvania law[,] … the Commonwealth is not required to prove that the

marijuana in an individual’s bloodstream is non-medical marijuana for

purposes of proving DUI.” Id. at 1174.

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Therefore, we agree with the trial court that there was sufficient

evidence to support Appellant’s conviction for DUI under Section 3802(d)(1).

and agree with counsel’s assessment that this argument is wholly frivolous.

“Furthermore, after conducting a full examination of all the proceedings as

required pursuant to Anders, we discern no non-frivolous issues to be raised

on appeal.” Yorgey, 188 A.3d at 1195.

Accordingly, we affirm Appellant's judgment of sentence and grant

counsel's petition to withdraw.

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

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/10/2022

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