J-S05036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREUD LABARRIERE, : : Appellant : No. 1392 MDA 2019
Appeal from the Judgment of Sentence Entered March 13, 2019 in the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004555-2018
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: MAY 13, 2020
Freud Labarriere (“Labarriere”) appeals from the judgment of sentence
entered following his conviction for one count each of driving under the
influence (“DUI”)—general impairment (second offense), driving while
operating privilege is suspended, and careless driving, and two counts of
driving on roadways laned for traffic.1 Additionally, counsel for Labarriere,
David Romano, Esquire (“Attorney Romano”), has filed an Application for
Leave to Withdraw as counsel and a brief pursuant to California v. Anders,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We deny Attorney Romano’s Application for Leave to Withdraw as
counsel and remand for further proceedings.
On June 9, 2018, Lancaster City Police Lieutenant Richard Heim (“Lt.
Heim”) was travelling northbound on Hershey Avenue in Lancaster City. N.T., ____________________________________________
1 See 75 Pa.C.S.A. §§ 3802(a)(1), 1543(a), 3714(a), 3309(1). J-S05036-20
3/13/19, at 92. While crossing over Wabank Road, Lt. Heim observed
Labarriere’s vehicle, travelling southbound on Hershey Avenue, cross over the
double-yellow center line. Id. Lt. Heim noted that no traffic or obstruction
forced the vehicle out if its lane. Id. After Labarriere’s vehicle passed, Lt.
Heim performed a U-turn and caught up to his vehicle. Id. Lt. Heim then
followed the vehicle and noted that Labarriere’s vehicle continued to cross the
double-yellow line and began rapidly accelerating, going airborne at some
points. Id. at 92-94. Lt. Heim conducted a traffic stop and identified
Labarriere as the driver. Id. at 94. As Lt. Heim approached the vehicle, Lt.
Heim observed that Labarriere did not readily notice his presence. Id.
Labarriere’s mannerisms and movements appeared to be sluggish. Id. Lt.
Heim, believing Labarriere was intoxicated, asked if Labarriere had anything
to drink that night. Id. at 95. Labarriere responded that he had one
beverage. Id. Lt. Heim, not trained in field sobriety tests, called Officer
Heather Schaeffer (“Officer Schaeffer”) to the scene due to her training and
experience with DUIs. Id.
Officer Schaeffer arrived on scene and observed that Labarriere had
bloodshot and glassy eyes. Id. at 61. Officer Schaeffer also noticed an odor
of alcohol coming from the interior of the vehicle. Id. Labarriere was unable
to exit the vehicle without falling over and stumbling. Id. at 62-63. Officer
Schaeffer explained the field sobriety tests and Labarriere refused to perform
the tests. Id. at 64-65. Labarriere was placed under arrest and transported
to the police station. Id. at 65, 67. Officer Schaeffer read Labarriere the
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required DL-26 form, and Labarriere refused to submit to a breath test. Id.
at 67-69.2 Labarriere was subsequently charged with the above-mentioned
offenses. Id. at 70.
A jury convicted Labarriere of DUI—general impairment on March 13,
2019. The trial court found Labarriere guilty of the remaining traffic offenses.
The trial court sentenced Labarierre to an aggregate term of 6 to 23 months
in the Lancaster County Prison, followed by 3 years of probation. Labarriere
timely filed a post-sentence Motion asking the trial court to reconsider his
sentence, which the trial court denied. Labarriere filed a timely Notice of
Appeal. Attorney Romano thereafter filed his Statement of intent to file
Anders brief in lieu of statement of errors complained of on appeal on
September 16, 2019.3 The trial court did not file a responsive opinion.
Attorney Romano subsequently filed, in this Court, an Application for Leave to
Withdraw from representation and a brief pursuant to Anders. Labarriere did
not file a pro se brief, nor did he retain alternate counsel for this appeal.
We may not address the merits of the issues raised in the Anders Brief
without first addressing Attorney Romano’s Application for Leave to Withdraw.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007).
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 ____________________________________________
2 The record does not indicate whether Labarriere was asked to consent to a blood draw.
3 The trial court did not order Labarriere to file a Pa.R.A.P. 1925(b) concise statement, nor did it file a Rule 1925(a) opinion.
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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. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). Prior
to withdrawing as counsel on a direct appeal under Anders, counsel must file
a brief that meets the requirements established by our Supreme Court in
Santiago. Id. The brief 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 caselaw, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
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Our review of Attorney Romano’s Application for Leave to Withdraw and
Anders Brief reveals that he has complied with all of the foregoing
requirements. Attorney Romano indicated that he reviewed the record,
including relevant testimony, and determined that the appeal was wholly
frivolous. Additionally, while the brief fails to cite caselaw or other legal
authority, we find that counsel’s brief substantially complies with Anders.
See Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007)
(stating that counsel’s brief stated the relevant facts and presented the case
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J-S05036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREUD LABARRIERE, : : Appellant : No. 1392 MDA 2019
Appeal from the Judgment of Sentence Entered March 13, 2019 in the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004555-2018
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: MAY 13, 2020
Freud Labarriere (“Labarriere”) appeals from the judgment of sentence
entered following his conviction for one count each of driving under the
influence (“DUI”)—general impairment (second offense), driving while
operating privilege is suspended, and careless driving, and two counts of
driving on roadways laned for traffic.1 Additionally, counsel for Labarriere,
David Romano, Esquire (“Attorney Romano”), has filed an Application for
Leave to Withdraw as counsel and a brief pursuant to California v. Anders,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We deny Attorney Romano’s Application for Leave to Withdraw as
counsel and remand for further proceedings.
On June 9, 2018, Lancaster City Police Lieutenant Richard Heim (“Lt.
Heim”) was travelling northbound on Hershey Avenue in Lancaster City. N.T., ____________________________________________
1 See 75 Pa.C.S.A. §§ 3802(a)(1), 1543(a), 3714(a), 3309(1). J-S05036-20
3/13/19, at 92. While crossing over Wabank Road, Lt. Heim observed
Labarriere’s vehicle, travelling southbound on Hershey Avenue, cross over the
double-yellow center line. Id. Lt. Heim noted that no traffic or obstruction
forced the vehicle out if its lane. Id. After Labarriere’s vehicle passed, Lt.
Heim performed a U-turn and caught up to his vehicle. Id. Lt. Heim then
followed the vehicle and noted that Labarriere’s vehicle continued to cross the
double-yellow line and began rapidly accelerating, going airborne at some
points. Id. at 92-94. Lt. Heim conducted a traffic stop and identified
Labarriere as the driver. Id. at 94. As Lt. Heim approached the vehicle, Lt.
Heim observed that Labarriere did not readily notice his presence. Id.
Labarriere’s mannerisms and movements appeared to be sluggish. Id. Lt.
Heim, believing Labarriere was intoxicated, asked if Labarriere had anything
to drink that night. Id. at 95. Labarriere responded that he had one
beverage. Id. Lt. Heim, not trained in field sobriety tests, called Officer
Heather Schaeffer (“Officer Schaeffer”) to the scene due to her training and
experience with DUIs. Id.
Officer Schaeffer arrived on scene and observed that Labarriere had
bloodshot and glassy eyes. Id. at 61. Officer Schaeffer also noticed an odor
of alcohol coming from the interior of the vehicle. Id. Labarriere was unable
to exit the vehicle without falling over and stumbling. Id. at 62-63. Officer
Schaeffer explained the field sobriety tests and Labarriere refused to perform
the tests. Id. at 64-65. Labarriere was placed under arrest and transported
to the police station. Id. at 65, 67. Officer Schaeffer read Labarriere the
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required DL-26 form, and Labarriere refused to submit to a breath test. Id.
at 67-69.2 Labarriere was subsequently charged with the above-mentioned
offenses. Id. at 70.
A jury convicted Labarriere of DUI—general impairment on March 13,
2019. The trial court found Labarriere guilty of the remaining traffic offenses.
The trial court sentenced Labarierre to an aggregate term of 6 to 23 months
in the Lancaster County Prison, followed by 3 years of probation. Labarriere
timely filed a post-sentence Motion asking the trial court to reconsider his
sentence, which the trial court denied. Labarriere filed a timely Notice of
Appeal. Attorney Romano thereafter filed his Statement of intent to file
Anders brief in lieu of statement of errors complained of on appeal on
September 16, 2019.3 The trial court did not file a responsive opinion.
Attorney Romano subsequently filed, in this Court, an Application for Leave to
Withdraw from representation and a brief pursuant to Anders. Labarriere did
not file a pro se brief, nor did he retain alternate counsel for this appeal.
We may not address the merits of the issues raised in the Anders Brief
without first addressing Attorney Romano’s Application for Leave to Withdraw.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007).
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 ____________________________________________
2 The record does not indicate whether Labarriere was asked to consent to a blood draw.
3 The trial court did not order Labarriere to file a Pa.R.A.P. 1925(b) concise statement, nor did it file a Rule 1925(a) opinion.
-3- J-S05036-20
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. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). Prior
to withdrawing as counsel on a direct appeal under Anders, counsel must file
a brief that meets the requirements established by our Supreme Court in
Santiago. Id. The brief 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 caselaw, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
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Our review of Attorney Romano’s Application for Leave to Withdraw and
Anders Brief reveals that he has complied with all of the foregoing
requirements. Attorney Romano indicated that he reviewed the record,
including relevant testimony, and determined that the appeal was wholly
frivolous. Additionally, while the brief fails to cite caselaw or other legal
authority, we find that counsel’s brief substantially complies with Anders.
See Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007)
(stating that counsel’s brief stated the relevant facts and presented the case
neutrally to the court and, thus, substantially complied with Anders despite
a lack of caselaw citations). The record further reflects that Attorney Romano
furnished a copy of the Anders Brief to Labarriere, advised Labarriere of his
right to retain new counsel or proceed pro se, or raise any additional points
that he deems worthy of the Court’s attention. Additionally, Attorney Romano
attached a copy of the letter he sent to Labarriere to the Application for Leave
to Withdraw. Consequently, Attorney Romano has complied with all of the
requirements set forth above.
Before addressing Attorney Romano’s claims, we observe that the
record reveals that there appears to be a non-frivolous issue that counsel
failed to raise on Labarriere’s behalf. See Dempster, supra. In its Amended
Information, the Commonwealth informed Labarriere that he would be subject
to a mandatory minimum sentence for his DUI—general impairment charge
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under 75 Pa.C.S.A. § 3804(c)(2).4 However, the DL-26 form informed
Labarriere of the consequences of his refusal to submit to a breath test only
in terms of the civil penalties, and did not inform him of the potential for an
enhanced mandatory minimum sentence.5 We therefore conclude that there
is a potentially non-frivolous issue not raised by Attorney Romano: Whether
Labarriere knowingly refused breath testing, where the record does not reflect
whether he was informed of the enhanced criminal penalties. ____________________________________________
4 The language of 75 Pa.C.S.A. § 3804(c)(2) is as follows:
An individual who violates section 3802(a)(1) and refused testing of breath under section 1547 (relating to chemical testing to determine amount of alcohol or controlled substances) … shall be sentenced as follows:
…
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school approved by the department; and
(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.
75 Pa.C.S.A. § 3804(c)(2). See also 75 Pa.C.S.A. § 1547(b)(2)(ii) (providing that “if the person refuses to submit to chemical breath testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).”).
5 The Notes of Testimony indicate that the DL-26 form was entered as Commonwealth Exhibit 1; however, that exhibit is missing from the record on appeal and is not before us. Officer Schaeffer did read the form on the record. See N.T., 3/13/19, at 68-69.
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By no means is this Court convinced that Labarriere is entitled to relief
on the issue we have identified, nor do we venture to state what relief is due.
However, the claim is not so obviously devoid of merit so as to warrant
classifying this appeal as frivolous. See Commonwealth v. Tukhi, 149 A.3d
881, 890 (Pa. Super. 2016). Therefore, we deny Attorney Romano’s
Application for Leave to Withdraw. Additionally, because Attorney Romano
filed a Statement of intent to file Anders brief in lieu of statement of errors
complained of on appeal, we remand for filing of a concise statement raising
this issue, in addition to any other potentially meritorious claims, and for the
trial court to file a Pa.R.A.P. 1925(a) opinion in response. Labarriere is
directed to file an appellate brief within 30 days after the filing of the trial
court’s Pa.R.A.P. 1925(a) opinion. The Commonwealth may file a responsive
brief within 30 days thereafter.
Application for Leave to Withdraw denied. Case remanded for further
proceedings consistent with this Memorandum. Superior Court jurisdiction
retained.
Judge Kunselman joins the memorandum.
Judge Shogan files a concurring memorandum in which Judge
Kunselman joins.
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