Com. v. Reid, K.

• Court: Superior Court of Pennsylvania
• Decided: May 10, 2023
• Docket: 1988 EDA 2022
• Status: Unpublished

Opinion

J-S10008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEMAR JOSHUA REID : : Appellant : No. 1988 EDA 2022

Appeal from the Judgment of Sentence Entered July 6, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002730-2021

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY PANELLA, P.J.: FILED MAY 10, 2023

Kemar J. Reid appeals from the judgment of sentence entered in the

Chester County Court of Common Pleas on July 6, 2022, following his

conviction at a bench trial for driving under the influence (“DUI”) of a

controlled substance. Additionally, Reid’s court-appointed counsel seeks to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). After

careful review, we affirm the judgment of sentence and grant counsel

permission to withdraw.

Prior to trial, Reid filed a motion to suppress physical evidence, certain

statements, and derivative evidence. On May 3, 2022, a suppression hearing

was held, after which the trial court denied the motion. The matter

immediately proceeded to a non-jury trial. The testimony from the J-S10008-23

suppression hearing was incorporated into the trial by agreement of the

parties. At the conclusion of the trial, the trial court found Reid guilty of DUI.1

On July 6, 2022, the trial court sentenced Reid to a mandatory minimum

sentence of seventy-two hours to six months’ incarceration, plus fines and

costs. This timely appeal followed.

We turn first to counsel’s petition to withdraw. To withdraw pursuant to

Anders, 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 [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

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

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, this Court has held that counsel must “attach to their petition to

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1 Our review of the record reveals some ambiguity regarding Reid’s conviction. The criminal information filed by the Commonwealth includes only a single count against Reid. However, that count includes allegations that Reid violated 75 Pa.C.S.A. § 3802(a), (c), (d)(1)(i), (d)(1)(iii), (d)(2), and (d)(3). The trial court’s verdict sheet indicates it found Reid guilty of violating subsection (d)(2), while the sentencing guideline form prepared by the court indicates Reid was convicted of violating count 3 of the information, which is identified as a violation of subsection (d)(3). In any event, what is clear from the record is that the trial court found that Reid was intoxicated to the point where he was not capable of safely operating his vehicle. Since counsel’s Anders brief addresses the conviction under subsection (d)(2), we will do the same.

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withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

An Anders brief must comply with the following requirements:

(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “[I]f counsel’s

petition and brief satisfy Anders, we will then undertake our own review of

the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).

We find counsel has complied with the preliminary requirements set

forth in Anders. Counsel filed a petition to withdraw, certifying she has

reviewed the case and determined that Reid’s appeal is frivolous. Further,

counsel attached to her petition a copy of a letter she sent to Reid advising

him of his rights, including his immediate right to proceed pro se and/or right

to hire private counsel. Counsel also filed a brief, which includes a summary

of the history and facts of the case, potential issues that could be raised by

Reid, and her assessment of why those issues are meritless, with citations to

relevant legal authority. Counsel has thus complied with the requirements of

Anders. Further, Reid has not filed a response. As such, we proceed to a

review of any issues outlined in the Anders brief.

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In her Anders brief, counsel raises a challenge to the sufficiency of the

evidence. Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes charged is established beyond a reasonable doubt. See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). The

Commonwealth may meet this burden of proving every element of the crime

by utilizing only circumstantial evidence. See Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007).

“[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt

raised as to the accused’s guilt is to be resolved by the fact-finder, so long as

the evidence presented is utterly incapable of supporting the necessary

inferences. See id. This Court does not independently assess credibility or

otherwise assign weight to evidence on appeal. See Commonwealth v.

Kinney, 863 A.2d 581, 584 (Pa. Super. 2004).

Reid was convicted for driving under the influence of a controlled

substance under 75 Pa.C.S.A. § 3802(d)(2), which states:

(d) Controlled substances—An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

***

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(2) The 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).

Viewed favorably to the Commonwealth as verdict winner, the evidence

upon which Reid was convicted is as follows. Officer Jerry Ferriola, employed

by the West Chester Borough Police Department testified that just before 2

a.m. on July 23, 2021, he was walking near Barnaby’s, a bar in West Chester,

Pennsylvania, when he saw Reid with another individual stumble down the

steps of Barnaby’s with a staggered gait, and slurring his words as he spoke

to other patrons. See N.T., 5/3/2022, at 9-11.

Shortly thereafter, Officer Ferriola received a radio dispatch regarding a

hit and run accident a block and a half from Barnaby’s. See id. at 11. When

he arrived at the accident scene, Officer Ferriola saw an occupied silver car

with front-end damage partially on the sidewalk with its headlights on. See

id. at 12. Officer Ferriola also saw an unoccupied, white Acura with significant

rear-end damage parked in front of the silver car. See id. There were no other

vehicles in the area. When Officer Ferriola stepped out of his patrol car, Reid

was exiting the silver car from the driver’s seat. See id. at 13. Reid’s car was

running at the time with the key in the ignition. See id.

Officer Ferriola attempted to talk with Reid, and observed that Reid was

very emotional, difficult to converse with, and not answering questions. See

id. at 14. Officer Ferriola noted Reid’s speech was slurred, he was unsteady

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on his feet, and his eyes were bloodshot, glassy, and watery. See id. at 14-

15. Officer Ferriola stated Reid was crying off and on throughout their

conversation. See id. at 15. Reid and the passenger both told Officer Ferriola

that their car was parked, and they were getting ready to leave, when another

vehicle sideswiped them and continued on. See id.

Officer Ferriola noted there was no damage to the driver’s side door that

seemed consistent with Reid’s story. See id. at 16. The passenger gave a

similar account of what happened. See id. at 18. Officer Ferriola, based on

his training and experience, did not believe either of them were being truthful

about what happened. See id.

Officer Ferriola did not ask Reid to perform standardized field sobriety

tests because of his original observation of Reid leaving the bar, the face-to-

face contact with Reid near the vehicle, Reid’s lack of cooperation, as well as

evidence of the accident that had occurred. See id. at 19.

Officer Ross Blue, employed by the West Chester Borough Police

Department, testified that Reid displayed objective signs and symptoms of

alcohol intoxication: slurred speech, odor of alcohol, unsteady gait, bloodshot

watery eyes, and emotions at a high point. See id. at 36. Officer Blue

concluded Reid was too intoxicated to drive. See id. at 38. Officer Blue also

testified that he observed an open container of an alcoholic beverage

underneath the front passenger seat, as well as a partially smoked blunt in an

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ashtray in the cup holder containing suspected marijuana. See id. at 48. The

blunt was tagged into evidence. See id. at 49.

Based on the above facts, there was sufficient evidence to establish that

Reid drove his vehicle when he was incapable of safely driving. The question

is whether the evidence was sufficient to establish that Reid’s impaired ability

to drive safely was the result of the influence of a drug – here, marijuana.

“Section 3802(d)(2) does not require that any amount or specific quantity of

the drug be proven in order to successfully prosecute under that section.”

Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008).

Whether expert testimony is necessary is a case-by-case determination, and

depends upon “the specific drug at issue” and “the nature and overall strength

of the Commonwealth's evidence.” Commonwealth v. Griffith, 32 A.3d

1231, 1239 (Pa. 2011).

We find that the totality of the circumstances presented sufficient

evidence to establish that Reid was under the influence of marijuana such that

his ability to drive a vehicle was impaired. Both officers testified that Reid

showed multiple signs of impairment. Officer Ferriola testified that Reid was

emotional and distracted and would not answer questions, his speech was

slurred, and his eyes were watery and bloodshot. See N.T., 5/3/2022, at 14-

15. The results of the blood test stipulated to by both parties revealed Reid

was under the active influence of THC when he was driving. See id. at 47.

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Finally, Officer Blue testified that a partially smoked blunt with suspected

marijuana inside was found in the vehicle’s cup holder. See id. at 48.

Viewed in the light most favorable to the Commonwealth, we are

satisfied that this evidence was sufficient to support Reid’s conviction of

subsection 3802(d)(2) beyond a reasonable doubt. See Bruce, 916 A.2d at

661. As the Commonwealth presented sufficient evidence to sustain the

conviction, we affirm Reid’s judgment of sentence.

Having reviewed the issue raised in counsel’s Anders brief, and after

conducting our own independent review of the record, we agree with counsel

that the within appeal is wholly frivolous.2 As such, we affirm the judgment of

sentence and grant counsel leave to withdraw.

Judgment of sentence affirmed. Petition for leave to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/10/2023

2We note our independent review of the record did not reveal any additional non-frivolous issues for appeal.

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