Com. v. Parthemore, B.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2023
• Docket: 1690 MDA 2022
• Status: Unpublished

Opinion

J-S19039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BONNIE JO PARTHEMORE : : Appellant : No. 1690 MDA 2022

Appeal from the Judgment of Sentence Entered November 14, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002093-2022

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 9, 2023

Bonnie Jo Parthemore (“Parthemore”) appeals from the judgment of

sentence imposed following her convictions for driving under the influence

(“DUI”) (controlled substance) and the summary offense of illegal parking.1

Additionally, Parthemore’s counsel has filed a motion to withdraw as counsel

and an accompanying brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant counsel’s motion and affirm the judgment of sentence.

In September 2021, Trooper Larry Reedy of the Pennsylvania State

Police and his partner observed Parthemore’s vehicle disabled “in the right

lane coming off the ramp . . . in the travel lanes” of southbound I-83 in

Dauphin County. N.T., 11/14/22, at 5. The troopers conducted a traffic stop

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1 See 75 Pa.C.S.A. §§ 3802(d)(2), 3353(a)(2)(ii). J-S19039-23

and approached the disabled vehicle. Id. at 5, 23. The trooper observed

Parthemore lying down asleep in the backseat of the vehicle with two dogs.

Id. at 6, 11. The trooper tapped on the back window of the vehicle to wake

Parthemore and instruct her to open the door and exit the vehicle. Id. When

Parthemore complied, the trooper immediately detected the odor of marijuana

coming from the vehicle. Id. at 6, 13. Parthemore told the trooper that she

had run out of gas. Id. at 6. The trooper observed that Parthemore appeared

“very disheveled, very out of it, seemed confused . . . [and] slurred speech

real bad.” Id. The trooper then transported Parthemore to the booking center

where she refused a blood test. Id. at 9. He thereafter charged Parthemore

with DUI and illegal parking.

The matter proceeded to a bench trial on November 14, 2022, at which

the trooper testified as to the above-referenced facts. The trooper then

authenticated the video of the encounter with Parthemore, which had been

recorded by the dashboard camera of the patrol vehicle, and the video was

then played for the trial court. Id. at 7-8. In the video, Parthemore admitted

to having a glass of vodka and using marijuana. Id. at 7, 8. The video also

showed that field sobriety tests were administered to Parthemore by the

trooper, and she failed those tests. Id. at 8. Trooper Reedy explained that,

based on the results of the field sobriety tests, he determined that Parthemore

was under the influence and incapable of safely driving. Id. at 8-9.

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At the conclusion of the bench trial, the court found Parthemore guilty

of both offenses. The court immediately sentenced Parthemore to six months

of restrictive punishment for DUI, with the first month on house arrest with

electronic monitoring. The trial court then imposed fines and costs for illegal

parking. Parthemore did not file a post-sentence motion. Parthemore filed a

timely notice of appeal. The trial court then ordered her to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Parthemore’s

counsel thereafter filed a concise statement indicating, inter alia, his intent to

file a brief pursuant to Anders and Santiago. In light of counsel’s stated

intention, the trial court determined that no further explanation of

Parthemore’s conviction and sentence was necessary and did not prepare a

Rule 1925(a) opinion. In this court, counsel has filed a motion to withdraw

and an Anders brief. Parthemore has not filed a response to either of

counsel’s filings.

When presented with an Anders brief, this Court may not review the

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

withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.

2010). Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw from representation, he must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new

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counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(internal citation omitted). In Santiago, our Supreme Court addressed the

second requirement of Anders, i.e., the contents of an Anders brief, and

required that the brief:

(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, 978 A.2d at 361. “Once counsel has satisfied the [Anders]

requirements, it is then this Court’s duty to conduct its own review of the trial

court’s proceedings and render an independent judgment as to whether the

appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 (citation

omitted).

Here, counsel avers in his motion to withdraw that he conducted a

thorough and conscientious review of the record and applicable case law, and

thereafter determined that there are no meritorious grounds to support

Parthemore’s appeal. Counsel further avers that he mailed Parthemore copies

of the motion and the Anders brief, as well as correspondence explaining

Parthemore’s rights to retain private counsel or proceed pro se and raise any

additional arguments she believes are meritorious. Counsel’s Anders brief

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includes a summary of the facts and procedural history of the case, a list of

issues that could arguably support Parthemore’s appeal, and counsel’s

analysis of why the issues lack merit. We conclude counsel has complied with

the technical requirements of the Anders procedure. Accordingly, we will

conduct an independent review to determine whether Parthemore’s appeal is

wholly frivolous.

In the Anders brief, counsel presents no issue for our review in his

statement of questions presented, given his conclusion that “any appeal issue

in the case is frivolous.” Anders Brief at 3. However, elsewhere in the brief

counsel indicates that Parthemore challenges the sufficiency of the evidence

supporting her conviction for DUI under section 3802(d)(2). Id. at 8.

Accordingly, we will address Parthemore’s challenge to the sufficiency of the

evidence.

Because evidentiary sufficiency is a question of law, our standard of review

is de novo and our scope of review is plenary. See Commonwealth v.

Diamond, 83 A.3d 119, 126 (Pa. 2013). When considering a challenge to the

sufficiency of the evidence:

[W]e evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. 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. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. 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

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the combined circumstances.

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted). Importantly, the trier of fact while

passing upon the credibility of witnesses and the weight of the evidence

produced, is free to believe all, part or none of the evidence. See

Commonwealth v. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (en banc).

To convict an individual of DUI under section 3802(d)(2), the

Commonwealth must establish: “[t]he individual is under the influence of a

drug or combination of drugs to a degree which impairs the individual’s ability

to safely drive, operate or be in actual physical control of the movement of

the vehicle.” 75 Pa.C.S.A. § 3802(d)(2).

In the Anders brief, counsel explains that “Parthemore admitted to

smoking marijuana as well as drinking earlier in the day, was illegally parked,

and failed sobriety tests.” Anders Brief at 8. Counsel further explains that

Parthemore does not, and could not, contest the control element of the

offense. Id. at 9. Counsel points out that Parthemore had slurred speech

with a disheveled appearance and was found sleeping in her vehicle along the

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interstate. Id. For these reasons, counsel concludes that any challenge to

the sufficiency of the evidence supporting the DUI conviction would be

frivolous.

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

as the verdict winner in the court below, we conclude that the evidence was

sufficient to support Parthemore’s conviction for DUI under section

3802(d)(2). The Commonwealth presented the testimony of Trooper Reedy,

who testified that Parthemore appeared “very disheveled, very out of it,

seemed confused . . . [and] slurred speech real bad.” N.T., 11/14/22, at 6.

The Commonwealth also presented the video of the encounter with

Parthemore, wherein she admitted to having a glass of vodka and using

marijuana, and which depicted her failing the field sobriety tests. Id. at 7, 8.

Moreover, Parthemore also took the stand and admitted to consuming vodka

and smoking marijuana that day, and to being asleep in her vehicle which

was parked in the traffic lanes of the interstate. Id. at 16-17, 18, 19. Thus,

we conclude that the evidence was sufficient to establish that Parthemore,

while driving or operating a vehicle, was under the influence of a drug to a

degree that impaired her ability to safely drive or operate a vehicle. See

Commonwealth v. Griffith, 32 A.3d 1231, 1236 (Pa. 2011); see also 75

Pa.C.S.A. § 3802(d)(2). Thus, Parthemore’s challenge to the sufficiency of

the evidence supporting her conviction for DUI is, in fact, wholly frivolous.

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Further, based on our independent review of the trial court proceedings,

we discern no other non-frivolous issues that Parthemore could have raised.2

See Edwards, 906 A.2d at 1228 (citation omitted). Thus, we conclude that

Parthemore’s appeal is wholly frivolous. Accordingly, we grant counsel’s

motion to withdraw and affirm the judgment of sentence.

Motion granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/9/2023

2 Counsel additionally explained in the Anders brief that no discretionary sentencing claim could have been raised on Parthemore’s behalf because she did not file a post-sentence motion or otherwise preserve any such claim at the time of sentencing. See Anders Brief at 11-12.

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