Com. v. Polka, J.

• Court: Superior Court of Pennsylvania
• Decided: October 20, 2023
• Docket: 18 WDA 2023
• Status: Unpublished

Opinion

J-S34041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEREMIAH POLKA : : Appellant : No. 18 WDA 2023

Appeal from the Judgment of Sentence Entered November 29, 2022 In the Court of Common Pleas of Armstrong County Criminal Division at CP-03-CR-0000590-2021

BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: October 20, 2023

Jeremiah Polka (Appellant) appeals from the judgment of sentence

imposed following his conviction of driving under the influence of alcohol –

general impairment (DUI) and his summary violation of driving on roadways

laned for traffic.1 Appellant’s public defender (Counsel) has also filed a

petition to withdraw as counsel and an accompanying brief in accordance with

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We deny Counsel’s petition to withdraw

and remand with instructions.

On March 9, 2021, Appellant was subject to a traffic stop after failing to

stay within his lane of travel. Pennsylvania State Police Trooper Victor

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1 75 Pa.C.S.A. § 3802(a)(1), 3309(a). J-S34041-23

Santoyo (Trooper Santoyo) detected the smell of alcohol and noticed Appellant

had slurred speech and glassy, bloodshot eyes. Trooper Santoyo asked

Appellant to complete field sobriety tests, during which Trooper Santoyo

observed signs of impairment. Appellant was arrested on suspicion of DUI,

but he refused a chemical breath test. The Commonwealth charged Appellant

with DUI – general impairment, DUI – blood alcohol 0.02 or greater while

license is suspended, driving on roadways laned for traffic, and driving with a

suspended license.

Appellant filed a pre-trial motion in limine seeking to preclude

introduction of dash cam video recordings from the traffic stop and the results

of his field sobriety tests. After hearing argument on the motion,2 the trial

court granted the motion in part, and precluded admission of the results of

Appellant’s horizontal gaze nystagmus test.3 The court denied the motion in

all other respects.

The jury found Appellant guilty of DUI. The trial court convicted

Appellant of the summary offense of driving on roadways laned for traffic, and

2 The docket reflects Appellant filed his motion in limine on the day of trial.

The trial court’s order likewise indicates the court heard argument “on the record in chambers[,]” Trial Court Order, 7/14/22, although the certified record does not contain transcripts of the argument.

3 The horizontal gaze nystagmus test is one of several commonly used field

sobriety tests which assesses the subject’s ability to focus. See Commonwealth v. Conway, 534 A.2d 541, 542 n.1 (Pa. Super. 1987).

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found him not guilty of the remaining offense. On November 29, 2022, the

trial court sentenced Appellant to 30 to 84 months in prison, consecutive to a

previously imposed sentence. The trial court also directed Appellant to pay

costs, fees, and fines. Trial counsel4 did not file a post-sentence motion on

Appellant’s behalf.

Counsel entered his appearance on December 9, 2022, the last day on

which Appellant could file a timely post-sentence motion. See Pa.R.Crim.P.

720(A)(1) (post-sentence motions must be filed within 10 days after the

imposition of sentence). On the same date, Counsel filed a motion for

extension of time to file post-sentence motions, to permit Counsel time to

review the case, as he had only recently spoken to Appellant for the first time.

Counsel argued a post-sentence motion was necessary to preserve issues

Appellant wished to raise on appeal. The trial court denied Counsel’s motion.

This timely appeal followed. Appellant and the trial court have complied

with Pa.R.A.P. 1925.

On July 3, 2023, Counsel filed an application to withdraw from

representation and Anders brief. Appellant did not file a pro se brief or

respond to Counsel’s application to withdraw.5

4 Appellant was represented by privately retained counsel at the time.

5 The Commonwealth did not file a brief.

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We first examine whether Counsel has complied with the dictates of

Anders in petitioning to withdraw from representation. 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.”) (citation omitted)). Pursuant to Anders, when an

attorney believes that an appeal is frivolous and wishes to withdraw as

counsel, he 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 [appellate] court.

Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

Additionally, the Pennsylvania Supreme Court has determined 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 case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

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Santiago, 978 A.2d at 361. “If counsel does not fulfill the aforesaid technical

requirements of Anders, this Court will deny the petition to withdraw and

remand the case with appropriate instructions….” Commonwealth v.

Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

Instantly, Counsel filed an Anders brief and a separate petition to

withdraw from representation. In correspondence to Appellant, Counsel

stated his conclusion that there were no “nonfrivolous issues to go forward on

appeal,” notified Appellant of his intent to withdraw, and informed Appellant

of his right to proceed pro se or retain new counsel to raise additional claims.6

Letter, 7/3/23.7 The Anders brief summarizes the factual and procedural

history of this appeal and explains Counsel’s reasons for concluding that the

appeal is wholly frivolous. As Counsel has satisfied the procedural

requirements of Anders and Santiago, we independently review the record

to determine whether Appellant’s appeal is, in fact, wholly frivolous.

6 Neither the petition to withdraw nor the letter to Appellant explicitly states

that Counsel conducted a conscientious review of the record. However, in the Anders brief, Counsel indicates he conducted a “thorough” review of the record. Anders Brief at 18. We conclude Counsel has substantially complied with Anders. See Commonwealth v. Reid, 117 A.3d 777, 781 (Pa. Super. 2015) (stating substantial compliance with Anders is sufficient).

7 Counsel’s letter to Appellant is attached to the Anders brief rather than the

petition to withdraw. Both the petition to withdraw and the Anders brief contain a certificate of service indicating the documents were served on Appellant.

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In the Anders brief, Counsel states that Appellant wishes to challenge

the admission of the dash cam video recordings (video). Anders Brief at 15.

Counsel claims, however, that this issue is waived because trial counsel did

not object to the admission of the video during trial.8 Id.

Generally, a party must make a contemporaneous and specific objection

to the admission of evidence. Commonwealth v. Boyd, 679 A.2d 1284,

1289 (Pa. Super. 1996). However, “[c]onsistent with Pa.R.E. 103(a), a motion

in limine may preserve an objection for appeal without any need to renew the

objection at trial, but only if the trial court clearly and definitely rules on the

motion.” Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa. Super. 2017)

(citation and ellipses omitted); see also Pa.R.E. 103(b) (“Once the court rules

definitively on the record—either before or at trial—a party need not renew an

objection or offer of proof to preserve a claim of error for appeal.”).

Upon review, we agree that Appellant’s trial counsel did not object to

the video’s admission. N.T., 7/14/22, at 31. However, Appellant challenged

the admissibility of the dash cam video recordings in his motion in limine. See

Motion in Limine, 7/14/22. Appellant’s claim was sufficiently preserved for

review because the trial court denied the portion of Appellant’s motion

challenging the admissibility of the video. As the trial court issued a definitive

ruling, Appellant was not required to object to the admission of the video at

8 The trial court also opines that Appellant waived the issue for failing to object

at trial. See Rule 1925(a) Memorandum, 1/24/23, at 1.

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trial in order to preserve the issue. Pa.R.E. 103(a), (b); Commonwealth v.

Stokes, 78 A.3d 644, 652 (Pa. Super. 2013) (“Appellant preserved the issue

by litigating the pre-trial motion in limine, and was not required to object to

the trial court’s ruling on the motion or place an objection on the record at

trial in order to preserve the issue for appeal.”).

Counsel concludes in his Anders brief that Appellant’s claim is waived.

As Counsel has not addressed the merits of Appellant’s issue, we remand for

Counsel to address the issue by filing an advocate’s brief, or, if Counsel

believes the issue is still meritless, a new Anders brief. Counsel shall file

the brief within 30 days of the date of this memorandum.

Petition to withdraw as counsel denied. Case remanded with

instructions for Counsel to file a brief within 30 days. Jurisdiction retained.

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