Commonwealth v. Harden

• Court: Pennsylvania Superior Court
• Writing for the Court: OPINION BY WECHT, J.
• Citation: Commonwealth v. Harden, 2014 PA Super 246, 103 A.3d 107 (Pa. Super. Ct. 2014)
• Decision Date: 27 October 2014
• Docket Number: No. 421 WDA 2014,421 WDA 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jaques Mantel HARDEN, Appellant.

103 A.3d 107

2014 PA Super 246

COMMONWEALTH of Pennsylvania, Appellee

v.Jaques Mantel HARDEN, Appellant.

No. 421 WDA 2014

Superior Court of Pennsylvania.

Submitted Sept. 8, 2014.

Filed Oct. 27, 2014.

Georgene Siroky, Public Defender, Pittsburgh, for appellant.

Amy E. Constantine, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.^*

Opinion

OPINION BY WECHT, J.:

Jaques Mantel Harden appeals his February 12, 2014 judgment of sentence, which was imposed following a summary appeal hearing that resulted in the affirmance of Harden's conviction for driving while his operating privileges were suspended or revoked.¹ Harden's counsel has filed with this Court a petition to withdraw as counsel, together with an “Anders ” brief.² We grant counsel's petition to withdraw, and we affirm Harden's judgment of sentence.

On May 20, 2011, after being pulled over for a suspected DUI, Harden was cited for a violation of 75 Pa.C.S. § 1547 because he refused to submit to a chemical test. Pursuant to that violation, Harden was to receive a license suspension of one year.

Because Harden's license was suspended already due to previous Motor Vehicle Code violations, the suspension relating to the violation of section 1547 did not become effective until July 29, 2013.

On July 15, 2013, Harden was cited for driving while his operating privileges were suspended or revoked, in violation of 75 Pa.C.S. § 1543(b)(1). On July 23, 2013, Harden proceeded to a hearing before a magisterial district judge, after which he was found guilty of subsection 1543(b)(1) and of summary disorderly conduct. On the same date, Harden filed a summary appeal. Because Harden was detained for a probation violation, he failed to appear for his summary appeal hearing, and the trial court found him guilty in absentia. On December 19, 2013, Harden filed a petition to vacate his sentence and for a new trial. On December 24, 2013, the trial court granted the petition and scheduled a new summary appeal hearing for February 12, 2014.

The Commonwealth's sole witness at the summary appeal hearing was Devin McGee, the police officer who cited Harden for violating subsection 1543(b)(1). Officer McGee testified that he encountered Harden during a traffic stop. Notes of Testimony (“N.T.”), 2/12/2014, at 4. Officer McGee testified that he observed Harden driving the vehicle, and that when he checked Harden's driving record subsequent to the traffic stop, the status of the driving record was “suspended DUI related.” Id., at 4. On cross-examination, Officer McGee testified that he initiated the traffic stop because the vehicle had a broken tail light. Id., at 6. Defense counsel questioned Officer McGee about Harden's action after being asked to produce identification. In response, Officer McGee explained that Harden provided no photo identification, but rather gave a “false identification.” Id., at 7. Defense counsel objected to the latter statement, but the trial court neither sustained nor overruled the objection. The trial court asked Officer McGee what sort of identification Harden gave to him, and Officer McGee clarified that Harden provided him only a name and date of birth. Officer McGee then testified that he was able to identify Harden from the photo that he obtained on the scene from the computer in his police cruiser, and that Harden admitted that the name on the photo was his name. Id., at 8. After being prompted by defense counsel, Officer McGee identified Harden in court as the individual that he encountered during the traffic stop and recognized in the photo.

Defense counsel called Harden as a witness and asked him two questions. Id., at 9. Defense counsel asked if Harden remembered the traffic stop, to which Harden responded in the affirmative. Defense counsel then asked Harden if he was operating the vehicle at the time. Harden responded in the affirmative.

The Commonwealth admitted Harden's driving record into evidence without objection. Id. at 6. No party ever addressed whether Harden received actual notice of his license suspension during the hearing, but his driving record indicated that the Department of Transportation mailed the official notice of suspension on June 16, 2011.

Following the summary appeal hearing, Harden was found guilty of 75 Pa.C.S. § 1543(b)(1). Harden was sentenced to sixty days' incarceration and a fine of five hundred dollars plus court costs. On March 12, 2014, Harden filed a notice of appeal. On March 18, 2014, the trial court directed Harden to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), to be served on the court no later than April 8, 2014. Harden filed a timely concise statement on April 8, 2014. On April 30, 2014, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). Having determined that an appeal would be frivolous, Harden's counsel filed with this Court a petition to withdraw as counsel, together with an Anders brief, on July 10, 2014.

Before addressing the merits of the underlying issue that Harden presents for our review, we first must pass upon counsel's petition to withdraw as counsel. 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 Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349, 361 (2009). 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.

Santiago, 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to the appellant. Attending the brief must be a letter that advises the appellant of his or her 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) ; see Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super.2010) ; Commonwealth v. Millisock, 873 A.2d 748, 751–52 (Pa.Super.2005).

Our review of counsel's petition to withdraw and the accompanying brief reveals that counsel substantially has complied with the Santiago procedural requirements. Counsel has provided a factual and procedural history detailing the events relevant to the instant appeal in her brief, along with appropriate citations. Brief for Harden at 6–8. Harden identified one claim to counsel that he wanted to raise on appeal: a challenge to the sufficiency of the evidence. Id. at 5. Counsel addresses the applicable facts and principles of law, ultimately concluding that this claim would be frivolous. Id. at 12–15. In her petition to withdraw as counsel filed with this Court, counsel again certified that she “is constrained to conclude that there are no non-frivolous issues to raise on appeal.” See Petition to Withdraw as Counsel, 7/10/2014, ¶ 9. Counsel has identified one additional issue that could arguably support Harden's claim on appeal—the minimal evidence demonstrating Harden's notice of the suspension—but ultimately determined that a claim advanced on this basis would be frivolous. Brief for Harden at 12–14.

Additionally, in accordance with Nischan, counsel has sent Harden a copy of the Anders brief and a letter informing him that he has the right to hire a new attorney, to proceed with an appeal on his own, and to raise any additional points that he thinks are worthy of this Court's attention. Letter, 7/10/2014. Counsel also explains to Harden her conclusion that an appeal would be frivolous. Accordingly, counsel substantially has complied with the requirements set forth in Nischan, 928 A.2d at 353. See also Millisock, 873 A.2d at 751–52.

We now must conduct an independent review of the record to determine whether the issues identified by Harden in this appeal are, as counsel claims, wholly frivolous, or if there are any other meritorious issues present in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396 ) (“[T]he court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds, it may grant counsel's request to withdraw.”).

We begin with Harden's challenge to the sufficiency of the evidence. When reviewing challenges to the sufficiency of the evidence, our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the

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