Commonwealth v. Dowling

1

COMMONWEALTH OF PENNSYLVANIA v. DARRIUS DOWLING Appellant COMMONWEALTH OF PENNSYLVANIA v. DARRIUS D. DOWLING Appellant

Nos. 6 MDA 2023, 11 MDA 2023

No. J-S24039-23

Superior Court of Pennsylvania

August 1, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered December 20, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000449-2022, CP-22-CR-0001850-2022

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

MEMORANDUM

STEVENS, P.J.E.

In these consolidated appeals,^[1] Darrius Dowling appeals from the December 20, 2022 judgment of sentence ordering him to serve one year of probation and to pay $3,185.41 in restitution and $75 in fines. This sentence was imposed after Appellant was found guilty in a bench trial of accidents involving damage to attended vehicle or property, duty to give information and render aid, possession of a small amount of marijuana, and possession of drug paraphernalia.^[2] Contemporaneously with this appeal, Spencer H.C. Bradley, Esq. (hereinafter, "Counsel"), has filed a brief and petition to withdraw in accordance with Anders v. California, 386 U.S. 738 (1967), Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and its progeny. After careful review, we grant Counsel's petition to withdraw and affirm the judgement of sentence.^[3]

The relevant facts and procedural history of this case, as gleaned from the certified record, are as follows: On December 2, 2021, Appellant was charged at docket no. CP-22-CR-0000449-2022 with accidents involving damage to attended vehicle or property and duty to give information and render aid. At docket no. CP-22-CR-0001850-2022, Appellant was charged with possession of a small amount of marijuana and possession of drug paraphernalia. These charges stemmed from Appellant's involvement in a December 1, 2021 hit and run accident with another vehicle in the parking lot of Weis Market in Susquehanna Township, Pennsylvania. Notes of testimony, 12/20/22 at 5-7. Upon locating Appellant's vehicle, responding officers discovered remnants of marijuana blunts on the vehicle's dashboard totaling less than 30 grams. Id. at 16-19. As a result of the collision, the victim's vehicle sustained extensive damage to the driver side door, tires, and rod which resulted in $3,185.41 in repairs. Id. at 6, 9, 35.

The Commonwealth sought joinder of these two cases for trial. On December 20, 2022, Appellant waived his right to a jury and appeared for a bench trial before the Honorable Deborah E. Curcillo. Following a one-day trial, Appellant was found guilty of accidents involving damage to attended vehicle or property, duty to give information and render aid, possession of a small amount of marijuana, and possession of drug paraphernalia. That same day, Appellant was sentenced to serve one year of probation and to pay $3,185.41 in restitution and $75 in fines.

On December 28, 2022, Appellant filed a timely notice of appeal.^[4] On December 30, 2022, the trial court ordered Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On January 12, 2023, Counsel entered his appearance on behalf on Appellant. Following an extension, Counsel filed statement of intent to file an Anders brief on February 13, 2023.^[5] On March 8, 2023, the trial court filed a statement in lieu of Rule 1925(a) opinion. Thereafter, on April 24, 2023, Counsel filed an Anders brief and a petition to withdraw. Appellant has not responded to Counsel's petition to withdraw.

As a preliminary matter, to withdraw under Anders, counsel must satisfy certain technical requirements. First, counsel must "petition the court for leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolous." Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012), quoting Santiago, 978 A.2d at 361. Second, counsel must file an Anders brief, in which counsel:

(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel's conclusion that the appeal is frivolous; and(4) state[s] 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.

With respect to the briefing requirements, "[n]either Anders nor McClendon requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. [W]hat the brief must provide under Anders are references to anything in the record that might arguably support the appeal." Santiago, 978 A.2d at 359-360.

Finally, counsel must furnish a copy of the Anders brief to his client and "advise[] him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention, and attach[] to the Anders petition a copy of the letter sent to the client." Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (citation omitted). "[If] counsel has satisfied the above 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." Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super. 2007) (en banc) (quotation marks and quotation omitted).

Our review of Counsel's petition to withdraw, supporting documentation, and his Anders brief reveals that he has substantially complied with all of the foregoing requirements. We note that Counsel also furnished a copy of the brief to Appellant, advised him of his right to retain new counsel, proceed pro se, and/or raise any additional points that he deems worthy of this Court's attention. The letter properly advised Appellant of his rights under Commonwealth v. Millisock, 873 A.2d 748, 751-752 (Pa.Super. 2005). As Counsel has complied with all of the requirements set forth above, we conclude that counsel has satisfied the procedural requirements of Anders and Santiago. We, therefore, proceed to conduct an independent review to ascertain whether the appeal is wholly frivolous. See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018) (en banc).

Counsel's Anders brief sets forth the following four issues that Appellant wishes to raise on appeal:

A. Joinder

Appellant first argues that the trial court abused its discretion in joining his two cases for trial. Anders brief at 14-15.

It is well settled that the decision "[w]hether to join or sever offenses for trial is within the trial court's discretion and will not be reversed on appeal absent a manifest abuse thereof, or prejudice and clear injustice to the defendant." Commonwealth v. Johnson, 236 A.3d 1141, 1150 (Pa.Super. 2020) (citation omitted), appeal denied, 242 A.3d 304 (Pa. 2020).

Pennsylvania Rule of Criminal Procedure 582 governs of the joinder of separate indictments or criminal informations for trial and provides, in relevant part, as follows:

(A) Standards

(1) Offenses charged in separate indictments or informations may be tried together if:

(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction.

Pa.R.Crim.P. 582(A)(1)(a)-(b).

Instantly, the trial court elected to consolidate the charges set forth in CP-22-CR-0000449-2022 and CP-22-CR-0001850-2022 for Appellant's bench trial, as they were based on the same act or transaction. We conclude that this decision was fully within the discretion of the trial court and Appellant was not prejudiced and did not suffer clear injustice as a result of the consolidation. Appellant's claim to the contrary is wholly frivolous.

B. Sufficiency & Weight of the Evidence

Appellant next argues that there was insufficient evidence to sustain his convictions for the aforementioned offenses because the testimony presented at trial failed to establish that he was the driver of the vehicle in question. Anders brief at 16-22. Though couched in terms of both sufficiency and weight, Appellant's claim challenging his identification as the driver of the vehicle is more properly construed as a challenge to the weight of the evidence. See Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa.Super. 2006) (stating, "any uncertainty in an eyewitness's identification of a defendant is a question of the weight of the evidence, not its sufficiency"), appeal denied, 916 A.2d 1101 (Pa. 2007); Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003) (explaining sufficiency of evidence review does not include assessment of credibility, which is more properly characterized as challenge to weight of evidence).

Here the record reflects that the victim, Janetta King, identified Appellant in court as the driver of the BMW that struck her automobile on the day in question. Notes of testimony, 12/20/22 at 7. King also identified Appellant as the individual in a photograph of the BMW's operator that responding Police Officer Benjamin Gainer obtained from Weis Market following the accident. Id. at 11, 15. Officer Benjamin's subsequent investigation determined that Appellant was the registered owner of this BMW, which was found abandoned across the street from the accident scene. Id. at 17-18. Appellant, on the contrary, presented testimony that he was in Pottstown, Pennsylvania, on the...