Com. v. Boll, R. (memorandum)

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J-S18009-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. RONALD EDWARD BOLL Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1361 MDA 2021 Appeal from the Judgment of Sentence Entered September 24, 2021 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001002-2020 BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J. MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 8, 2022 Appellant, Ronald Edward Boll, appeals from the judgment of sentence of six months’ probation (three months of which to be served on house arrest), imposed after he was convicted, following a non-jury trial, of driving while operating privilege is suspended or revoked, 75 Pa.C.S. § 1543(a); 1 carrying ____________________________________________ We recognize that section 1543(b)(1)(ii), which sets forth the sentence for a second violation of the statute, has been deemed “unconstitutionally vague and inoperable” because it only provides a minimum, and not also a maximum, term of incarceration. See Commonwealth v. Jackson, 271 A.3d 1286, 1288 (Pa. Super. 2022); 75 Pa.C.S. § 1543(b)(1)(ii) (“A second violation of this paragraph shall constitute a summary offense and, upon conviction of this paragraph, a person shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for not less than 90 days.”). Here, Appellant had six or more prior convictions under section 1543(a) and, thus, he was sentenced to an enhanced term under 75 Pa.C.S. § 6503(a.1). That provision requires a “fine of not less than $1,000 and … imprisonment for not less than 30 days but not more than six months.” 75 Pa.C.S. § 6503(a.1). Because this sentence has a minimum and maximum term, it is not illegal under the rationale of Jackson. 1 J-S18009-22 and exhibiting driver’s license on demand, 75 Pa.C.S. § 1511(a); and registration and certificate of title required, 75 Pa.C.S. § 1301(a). On appeal, Appellant seeks to challenge the sufficiency of the evidence to sustain his convictions. Additionally, Appellant’s counsel, Scott A. Harper, Esq., seeks to withdraw his representation of Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of sentence and grant counsel’s petition to withdraw. The trial court summarized the facts of this case, as follows: This case arises from a contentious roadside encounter between Appellant and Chief Richard Hileman of the Carroll Valley Police Department (hereinafter “Chief Hileman”) on the evening of June 28, 2020. On that date, Chief Hileman was on patrol in an unmarked police vehicle when he observed Appellant operating a small riding lawn mower on the roadway of the 200 block of East Main Street on State Route 116 in Fairfield, Adams County, Pennsylvania. Chief Hileman stopped the lawn mower because it lacked both lighting and a license plate and was not properly equipped for the roadway. Chief Hileman requested that Appellant display his driver’s license, but Appellant refused to comply; Appellant also adamantly refused to provide even his name and address, arguing he was not legally required to identify himself. Over the course of an approximately twenty-minute exchange, during which other municipal police officers arrived on the scene, [Chief] Hileman continued to request that Appellant identify himself. None of the police officers were able to identify Appellant by sight. Chief Hileman ultimately advised Appellant that he would take him into custody for identification purposes if Appellant persisted in his obstreperous behavior, but Appellant still refused to identify himself. The police officers thereafter arrested Appellant, an undertaking that required them to forcibly remove him from his lawn[]mower. During the ensuing struggle, the police officers discovered an identification card that identified Appellant as Ronald Edward Boll. -2- J-S18009-22 Following his arrest, Appellant was charged with resisting arrest, carrying and exhibiting driver’s license on demand, driving under suspension, registration and certificate of title required, required financial responsibility, and operation of vehicle without official certificate of inspection. Appellant filed an omnibus pretrial motion on January 8, 2021; this court denied Appellant’s motion on May 4, 2021[,] after a March 16, 2021 hearing. The Commonwealth later withdrew the charge of resisting arrest, and the parties proceeded to [non-jury] trial before this court on August 6, 2021. At the conclusion of summary trial, the court found Appellant guilty of carrying and exhibiting driver’s license on demand, driving under suspension, and registration and certificate of title required. On September 24, 2021, this court sentenced Appellant on the driving under suspension charge to probation for a period of six months with 90 days restrictive probation conditions [of] house arrest with electronic monitoring. Appellant filed his notice of appeal on October 15, 2021[,] and was directed to file a [Pa.R.A.P. 1925(b)] concise statement of matters complained of on appeal. Appellant timely filed a concise statement of matters complained of on appeal on October 20, 2021. [Therein,] Appellant present[ed] the following questions … for review: 1. Did the trial court err in finding sufficient evidence to establish a violation of section 1511(a), carrying/exhibiting driver’s license on demand, based on [Appellant’s] riding a lawn mower mostly on the berm however intermittently on the roadway to go around a couple parked cars? 2. Did the trial court err in finding sufficient evidence to establish a violation of section 1543(a)[,] driving under suspension (with enhancement under section 6503(a.1)), based on [Appellant’s] riding a lawn mower mostly on the berm however intermittently on the roadway to go around a couple parked cars? 3. Did the trial court err in finding sufficient evidence to: establish a violation of section 1301, registration certification of title, based on [Appellant’s] not possessing a registration card for the lawn mower in which he was riding mostly on the berm however intermittently on the roadway to go around a couple parked cars? -3- J-S18009-22 Trial Court Opinion (TCO), 12/2/21, at 1-3 (footnotes and unnecessary capitalization omitted). The trial court filed its Rule 1925(a) opinion on December 2, 2021. On March 10, 2022, Attorney Harper filed with this Court a petition to withdraw from representing Appellant. That same day, counsel also filed an Anders brief. On March 14, 2022, we denied counsel’s petition to withdraw, finding that his Anders brief did not comply with the requirements of Santiago. On April 11, 2022, Attorney Harper filed a second petition to withdraw and an amended Anders brief that substantially complies with Santiago. Therein, counsel states that the issues preserved in Appellant’s Rule 1925(b) statement are frivolous, and that he can discern no other, nonfrivolous claims to raise herein. Accordingly, this Court must first pass upon counsel’s petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The 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. -4- J-S18009-22 Santiago, 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: “(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007). Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After determining that counsel has satisfied these technical requirements of Anders and Santiago, this Court must then “conduct a simple review of the record to ascertain if there appear[s] 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). In this case, Attorney Harper’s Anders brief substantially complies with the above-stated requirements. Namely, he includes a summary of the relevant factual and procedural history, see Anders Brief at 7, he refers to portions of the record that could arguably support Appellant’s claims, id. at 911, and he sets forth his conclusion that Appellant’s appeal is frivolous, id. at 11. He also explains his reasons for reaching that determination and supports his rationale with citations to the record and pertinent legal authority. Id. at 9-11. Attorney Lloyd also states in his petition to withdraw that he has supplied Appellant with a copy of his Anders brief. Additionally, he attached a letter directed to Appellant to his petition to withdraw, in which he informed Appellant of the rights enumerated in Nischan. Accordingly, counsel has complied with the technical requirements for withdrawal. -5- We now J-S18009-22 independently review the record to discern if the issues Appellant seeks to raise herein are frivolous, and if there are any other, non-frivolous claims Appellant could assert on appeal. In his three separate challenges to the sufficiency of the evidence to sustain his convictions under the Motor Vehicle Code, Appellant seeks to argue that his convictions must be overturned because the evidence demonstrated that he was driving “mostly on the berm” of the road and he only “intermittently” entered the roadway. Anders Brief at 5, 6. Appellant maintains “that the berm of the road was not part of the highway [and,] therefore[,] … [A]ppellant was not subject to the jurisdiction of the [V]ehicle [C]ode.” Id. at 10. Accordingly, he concludes that the evidence was insufficient to support his convictions for violations of that statute. In reviewing Appellant’s sufficiency issues, we have examined counsel’s Anders brief, the certified record, and the applicable law.2 We also reviewed the thorough opinion authored by the Shawn C. Wagner of the Court of Common Pleas of Adams County. We conclude that Judge Wagner’s decision adequately explains why Appellant’s sufficiency claims are frivolous, and we adopt his rationale as our own in affirming Appellant’s judgment of sentence. See TCO at 3-8. Notably, as Attorney Harper recognizes, Judge Wagner “did not overrule [Appellant’s] position” that the berm of the road is not part of the ____________________________________________ 2 The Commonwealth elected not to file a brief in this case. -6- J-S18009-22 highway but, instead, the judge found credible Chief Hileman’s testimony “that … [A]ppellant drove down the middle of the road and not on the berm.” Anders Brief at 10; see also TCO at 8. The record supports Judge Wagner’s credibility determination. See N.T. Trial, 8/6/21, at 14 (Chief Hileman’s stating that he observed Appellant “traveling in the travel lane of State Route 116, Main Street”); id. at 7 (Chief Hileman’s testifying that he observed Appellant’s driving the lawn mower for approximately “[one] thousand feet on East Main Street”). Therefore, we adopt Judge Wagner’s opinion and reject Appellant’s sufficiency claims for the reasons set forth therein. Additionally, we discern no other, non-frivolous issues that Appellant could raise on appeal. Accordingly, we affirm his judgment of sentence and grant Attorney Harper’s petition to withdraw. Judgement of sentence affirmed. Petition to withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/08/2022 -7- Circulated 06/14/2022 01:31 PM

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