Com. v. Murph, K.

• Court: Superior Court of Pennsylvania
• Decided: July 27, 2023
• Docket: 1086 MDA 2022
• Status: Unpublished

Opinion

J-S24019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN M. MURPH : : Appellant : No. 1086 MDA 2022

Appeal from the Judgment of Sentence Entered July 11, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005126-2021

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

MEMORANDUM BY LAZARUS, J.: FILED JULY 27, 2023

Kevin M. Murph appeals from the judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, following his convictions of one

count each of driving under the influence - controlled substance (DUI),1

driving in excess of 55 miles per hour speed limit by 17 miles per hour,2 and

disregard traffic lane.3 Additionally, Murph’s counsel, Spencer H.C. Bradley,

Esquire, has filed an application to withdraw as counsel, and an accompanying

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 3802(d)(1)(i).

2 75 Pa.C.S.A. § 3362(a)(2).

3 Id. at § 3309(1). J-S24019-23

Anders4 brief. Upon review, we grant Attorney Bradley’s application to

withdraw and affirm Murph’s judgment of sentence.

The trial court summarized the factual history of this case as follows:

On August 15, 2021, Pennsylvania State Police observed a vehicle traveling at 72 miles [per] hour in a 55-mile-per-hour zone within the area of Dauphin County. [The trooper] conducted[ a traffic stop, at which time the trooper] could smell the odor of marijuana emanating from [Murph]’s vehicle. [Murph’s] eyes were bloodshot. [Murph] relayed that he had a medical marijuana card. [Murph] showed signs of impairment during the standard field sobriety test[s, which] included [inter alia,] a walk-and-turn, and the one-leg stand. . . . [D]uring the one-leg stand, [Murph] was unable to keep his hands down at his side, [he] was swaying, and kept putting his foot down. [Murph] also showed eye tremors and a lack of convergence during the finger-to-nose test. [Murph] submit[ted] to a legal blood draw[, which showed] his THC levels of Delta-9 being 5.3[,] Delta-9 Carboxy being 74[,] and the inactive metabolite being .10.

Trial Court Opinion, 10/3/22, at 1-2.

Murph was charged with the above-mentioned offenses, after which he

proceeded to a non-jury trial on July 11, 2022. The trial court found Murph

guilty and proceeded to sentencing that same day, imposing six months of

intermediate punishment, with the first month to be served on house arrest

with electronic monitoring.

Murph filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Attorney

Bradley subsequently filed with this Court an application to withdraw as

4 Anders v. California, 368 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

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counsel and a brief pursuant to Anders. Murph did not file a pro se brief, nor

did he retain alternate counsel for this appeal.

Before addressing Murph’s issues on appeal, we must determine

whether Attorney Bradley has complied with the dictates of Anders and its

progeny in petitioning to withdraw from representation. See

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009)

(“[w]hen presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw”). Pursuant to Anders, when counsel believes that an appeal is

frivolous and wishes to withdraw from representation, he or she must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted).

Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders 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

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case law, 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 appears 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).

Instantly, our review of counsel’s Anders brief and application to

withdraw reveals that Attorney Bradley has complied with each of the technical

requirements of Anders/Santiago. Attorney Bradley indicates that he has

made a conscientious examination of the record and determined that an

appeal would be frivolous. The record further reflects that Attorney Bradley

has furnished a copy of the Anders brief to Murph and advised Murph of his

right to retain new counsel, proceed pro se, or raise any additional points that

he deems worthy of this Court’s attention. Additionally, the Anders brief

complies with the requirements of Santiago. As Attorney Bradley has

complied with all of the requirements for withdrawing from representation, we

will examine the record and make an independent determination of whether

Murph’s appeal is, in fact, wholly frivolous.

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In the Anders brief, Attorney Bradley raises three issues.5 In the first

issue, Murph challenges the sufficiency of the evidence to support his DUI

conviction. Id. at 11. Murph concedes that control is not at issue; rather, the

sole issue for this Court is whether the Medical Marijuana Act6 overrides the

DUI statute’s prohibitions on driving while under the influence of marijuana.

Id. at 11-17.

As Attorney Bradley candidly points out, this Court has already

addressed this question in Commonwealth v. Dabney, 274 A.3d 1283 (Pa.

Super. 2022). This Court, in Dabney, determined that the Medical Marijuana

Act does not take precedence over the Vehicle Code. Id. at 1292. Similarly,

in Commonwealth v. Watts, 283 A.3d 1252 (Pa. Super. 2022), this Court

reaffirmed the ruling in Dabney and noted that “because the [Medical

Marijuana Act] does not address driving and marijuana, but the Vehicle Code

does, these statutes are not conflicting. Consequently, it is illegal to drive

with any amount of marijuana, medical or otherwise, in one’s system.”

Watts, 283 A.3d at 1256 (emphasis added).

5 We note that Attorney Bradley phrases his statement of questions involved

in terms of whether this Court should permit him to withdraw. See Anders Brief, at 5. However, in the argument section, Attorney Bradley outlines two challenges to the sufficiency of the evidence, and one challenge to the discretionary aspects of Murph’s sentence. See Anders Brief, at 11, 18, 20- 22.

6 35 P.S. § 10231.303.

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Instantly, Murph was operating a vehicle with marijuana metabolites in

his blood stream. Thus, the Commonwealth presented sufficient evidence to

sustain Murph’s conviction of DUI. In light of the foregoing, Murph’s challenge

is frivolous, and he is entitled to no relief.

In the second issue, Murph challenges the sufficiency of the evidence of

his convictions of driving in excess of 55 miles per hour speed limit by 17 miles

per hour, and disregarding traffic lanes. See Anders Brief at 18-19. Attorney

Bradley notes that Murph proceeded to a stipulated non-jury trial, and he did

not preserve a challenge to these offenses and, thus, his claims are waived.

Id. Upon review, we agree.

Indeed, at trial, Murph’s argument and defense were focused solely on

the interplay between the Medical Marijuana Act and the Vehicle Code.

Additionally, Murph did not challenge these convictions in a written post-trial

motion. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived

and cannot be raised for the first time on appeal.”). Moreover, Murph did not

raise this issue in his Rule 1925(b) statement. See Rule 1925(b)(4)(vii)

(“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”). Consequently, these

claims are waived and are meritless.

In his third claim, Murph challenges the discretionary aspects of his

sentence, from which there is no automatic right to appeal. See

Commonwealth v. Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016).

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Rather, when an appellant challenges the discretionary aspects of his

sentence, we must consider his brief on this issue as a petition for permission

to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997);

see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987). Prior

to reaching the merits of a discretionary sentencing issue,

[this Court conducts] a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation

marks and some citations omitted).

Here, Murph filed a timely notice of appeal. However, as Attorney

Bradley notes in the Anders Brief, Murph did not raise any sentencing claim

in a post-sentence motion or in a timely objection at sentencing. See Anders

Brief, at 20-22. Additionally, this claim, like his second, is absent from

Murph’s Rule 1925(b) statement. Accordingly, the claim has not been

preserved for our review. See Moury, supra.

Finally, our independent review of the record discloses no other

“arguably meritorious issues that counsel, intentionally or not, missed or

misstated.” Dempster, 187 A.3d at 272. As such, we grant Attorney

Bradley’s application to withdraw, and affirm the judgment of sentence.

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Judgment of sentence affirmed. Application to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/27/2023

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