J-S43012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL JOHN MCQUAID 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 292 MDA 2023

Appeal from the Judgment of Sentence Entered November 30, 2022

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0003710-2020

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 27, 2024

Michael John McQuaid appeals from the judgment of sentence entered 

following his convictions for two counts of driving under the influence of 

alcohol (“DUI”).

1 McQuaid’s counsel has filed an Anders2 brief and a motion

to withdraw as counsel. We grant counsel’s motion to withdraw and affirm the 

judgment of sentence.

The trial court summarized the facts as follows:

On August 23, 2020, around 1:00 a.m., Christopher Shank, a 

passenger in a vehicle that was traveling on Second (2nd) Avenue 

in Boyertown, Berks County, Pennsylvania, observed a motor 

vehicle make an abrupt right-hand turn into a parked vehicle. Mr. 

Shank called 911 and approached the vehicles. Michael

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(a)(1), (c). 

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

Santiago, 978 A.2d 349 (Pa. 2009).
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McQuaid[,] the driver of the vehicle which had turned into the 

parked vehicle, was unresponsive to Mr. Shank’s attempts to wake 

him. There were no other persons in the vehicle.

Officer Michael Hoppes, of the Eastern Regional Police 

Department, responded to the accident scene. While Officer 

Hoppes was checking on [McQuaid], Mr. Shank pulled the vehicle’s 

keys out of the ignition and put them on the roof of the vehicle. 

(Notes of Testimony, hereinafter “N.T.”, pages 43-47).

Officer Hoppes observed [McQuaid] in the driver’s seat of the 

vehicle stopped across lanes of travel in front of a legally parked, 

unoccupied, vehicle. While speaking with [McQuaid], Officer 

Hoppes observed that [McQuaid] had glassy, bloodshot eyes and 

slow, slurred speech. Officer Hoppes also smelled an odor of

alcohol coming from [McQuaid’s] person. Officer Hoppes asked

[McQuaid] if he had been drinking to which [McQuaid] replied[,]

“[Y]es.” [McQuaid] told Officer Hoppes that no one else had been 

in his vehicle. (N.T. pp. 50-51, 54-55).

Officer Hoppes asked [McQuaid] to perform Standardized Field 

Sobriety Tests (“SFSTs”). When [McQuaid] was asked to perform 

the Walk and Turn Test SFST, [McQuaid] declined and stated, “[I]f 

you’re going to arrest me, just arrest me.” [McQuaid] admitted to 

being the driver of the vehicle that struck the parked vehicle, and 

Officer Hoppes then took [McQuaid] into custody. (N.T. pp. 55-

57).

Officer Hoppes transported [McQuaid] to the Central Processing 

Center at the Berks County Courthouse. (N.T. pp. 57-58). Officer 

Hoppes read the Pennsylvania Department of Transportation form 

DL-26 to [McQuaid]. (Commonwealth Exhibit No. 12). [McQuaid]

consented to the breath test. Officer Hoppes watched [McQuaid] 

for the required twenty (20) minute observational period before 

[McQuaid] submitted to two (2) breath tests, administered by 

Deputy Sherriff Clayton Wagner. [McQuaid] did not vomit, 

regurgitate or ingest any substances, including alcohol, during the 

20-minute observational period. (N.T. pp. 58-60).

Deputy Sheriff Clayton has completed thirty-two (32) hours of 

training to qualify to serve as a breath test operator. (N.T. p, 73, 

Commonwealth Exhibit No. 13). Deputy Sherriff Clayton explained 

at trial that when the two (2) breath test samples are taken, the 

one which results in the lowest reading is used for prosecution

purposes (N.T. p. 74). He explained that the device used to 

analyze the breath samples is a DataMaster (DMT) instrument. 
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The DMT was certified as accurate, and calibrated, and functional 

at the time of [McQuaid’s] breath tests. (N.T. p. 77,

Commonwealth Exhibit No. 14, which includes the certificates of 

Breathtesting Device Accuracy and the Breathtesting Device 

Calibration).

The DMT results indicated [McQuaid’s] blood alcohol level [“BAC”] 

was .181%. (N.T. p. 83). At trial, Defense Counsel agreed with 

the admission of the Commonwealth’s Exhibit 14 but argued that 

Deputy Sherriff Clayton’s supervisors did not testify about the 

information contained in Exhibit No. 14. The Commonwealth 

argued that the business record exception to the documents did 

not require the testimony of the supervisors. (N.T. p. 83). The

Court found that the documents in Commonwealth Exhibit No. 14 

met the business exception rule under Pa.R.E. 803(6) and 

admitted them at trial. (N.T. pp. 84-85). 

Prior to adjourning the proceedings on the first day of trial, the 

court advised the parties, counsel, and the jury that trial would 

resume the next morning at 9:00 a.m. As of 9:16 a.m. on the 

second day of trial, [McQuaid] was not present. At 9:25 a.m.,

Defense Counsel informed the court that she had spoken with 

[McQuaid] at 9:00 a.m. who said he had a flat tire and that “he’s 

on the way in ten minutes." (N.T. p. 99). The undersigned judge 

informed the jury, before closing arguments began, that “[j]ust

preliminarily, I want to note that [McQuaid] had some 

transportation difficulties coming in this morning but because of 

the time here today, we’re almost a half an hour past the agreed 

upon starting time, we’re going to proceed and you shouldn’t hold 

this against [McQuaid] for being late, okay?" (N.T. pp. 99-100). 

Defense Counsel then proceeded with her closing argument. 

[McQuaid] entered the courtroom approximately halfway through 

her closing argument.

Trial Court Opinion, filed 5/26/23, at 2-5.

A jury found McQuaid guilty of the above offenses. He was sentenced to 

27 months to seven years’ incarceration. McQuaid filed a post-sentence

motion, which was denied. This appeal followed. 

Counsel’s Anders brief identifies three potential issues:
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1. Whether the trial court erred when it admitted the certificate 

of calibration and certificate of accuracy of the breath testing 

device used on [McQuaid]. 

2. Whether the evidence was insufficient to support a guilty 

verdict for driving under the influence[.]

3. Whether the trial court erred by conducting part of the trial in

absentia.

Anders Br. at 6.

Before reviewing counsel’s Anders brief, we must first determine 

whether counsel has satisfied the necessary requirements for withdrawing as 

counsel. 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”). To withdraw pursuant to 

Anders, counsel must: 1) petition the court for leave to withdraw stating that, 

after a conscientious examination of the record, counsel has determined that 

the appeal would be frivolous; 2) furnish a copy of the brief to the client; and 

3) advise the client that he or she has the right to retain other counsel or 

proceed pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 

(Pa.Super. 2013) (en banc).

Further, in the Anders brief, counsel seeking to withdraw 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 
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case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Santiago, 978 A.2d at 361. If counsel meets the above obligations, “it then 

becomes the responsibility of the reviewing court to make a full examination 

of the proceedings and make an independent judgment to decide whether the 

appeal is in fact wholly frivolous.” Id. at 355 n.5 (quoting Commonwealth 

v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).

Instantly, we find that counsel has complied with the above 

requirements. In his Anders brief, counsel has provided a summary of the 

procedural and factual history of the case with citations to the record. Further, 

counsel’s brief identifies three issues that could arguably support the appeal, 

as well as counsel's assessment of why the appeal is frivolous, with controlling 

case law and citations to the record. Additionally, counsel served McQuaid with 

a copy of the Anders brief and advised him of his right to proceed pro se or 

to retain a private attorney to raise any additional points he deemed worthy 

of this Court’s review. See Motion to Withdraw, 8/24/23, at ¶ 4. McQuaid has 

not responded to counsel’s motion to withdraw. As counsel has met the 

requirements of Anders and Santiago, we will proceed to the issues counsel 

has identified.

The first issue presented in counsel’s Anders brief is whether the court 

erred in admitting into evidence the certificates of calibration and accuracy for 

the breath testing device. Anders Br. at 12. The question is whether the 
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admission of this evidence violated McQuaid’s rights under the Confrontation 

Clause of the Sixth Amendment of the United States Constitution. Id. at 14. 

“Whether [an a]ppellant’s confrontation rights were violated is a 

question of law; therefore, our standard of review is de novo and our scope of 

review is plenary.” Commonwealth v. Akrie, 159 A.3d 982, 988 (Pa.Super. 

2017). The Confrontation Clause “prohibits out-of-court testimonial 

statements by a witness unless the witness is unavailable and the defendant 

had a prior opportunity for cross-examination.” Commonwealth v. Yohe, 79 

A.3d 520, 531 (Pa. 2013).

The Pennsylvania Supreme Court addressed this exact issue in 

Commonwealth v. Dyarman, 73 A.3d 565 (Pa. 2013). There, the defendant

challenged the admission into evidence of calibration and accuracy certificates 

for breath testing machines on the basis that it violated her Confrontation 

Clause rights. The Court found that “the calibration and accuracy certificates 

were nontestimonial in nature because they were not prepared for the primary 

purpose of providing evidence in a criminal case[.]” Id. at 569. The Court 

pointed out that the certificates were prepared weeks before the appellant’s 

DUI offense and without “knowledge of any particular case or for use in any 

particular trial.” Id. It further noted that the certificates did not provide the 

appellant’s name or BAC, but rather “merely certified the reliability of the 

device.” Id. The Court thus concluded that the certificates’ admission into 

evidence did not violate the appellant’s Confrontation Clause rights. Id.
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Here, like in Dyarman, the certificates at issue were not prepared for 

the primary purpose of providing evidence in a criminal case. Rather, they 

were prepared before the offense occurred to ensure the reliability of the 

device. They contained no information regarding McQuaid or his BAC. Thus,

the certificates were nontestimonial in nature and McQuaid’s claim that his 

Confrontation Clause rights were violated is frivolous.

The second issue identified in counsel’s Anders brief is a challenge to 

the sufficiency of the evidence supporting McQuaid’s DUI convictions. Anders

Br. at 18. The narrow issue is whether the Commonwealth failed to produce 

sufficient evidence that McQuaid was operating a motor vehicle within two 

hours of being tested at the booking center. Id. at 19. The argument is that

“the observing officer did not adequately perform the 20-minute observation 

period because the officer searched him, read him the DL- 26 [form], and did 

not sign off on whether the appellant burped or vomited.” Id. at 20.

Our standard of review when reviewing a challenge to the sufficiency of 

the evidence is de novo, while “our scope of review is limited to considering 

the evidence of record, and all reasonable inferences arising therefrom, 

viewed in the light most favorable to the Commonwealth as the verdict 

winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). 

“Evidence will be deemed sufficient to support the verdict when it establishes 

each material element of the crime charged and the commission thereof by 

the accused, beyond a reasonable doubt.” Commonwealth v. Widmer, 744 

A.2d 745, 751 (Pa. 2000). The Commonwealth may sustain its burden by 
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means of wholly circumstantial evidence. Commonwealth v. Dix, 207 A.3d 

383, 390 (Pa.Super. 2019). Further, the trier of fact is free to believe, all, 

part, or none of the evidence presented. Commonwealth v. Beasley, 138 

A.3d 39, 45 (Pa.Super. 2016). “[T]his Court may not substitute its judgment 

for that of the factfinder, and where the record contains support for the 

convictions, they may not be disturbed.” Commonwealth v. Smith, 146 A.3d 

257, 261 (Pa.Super. 2016).

McQuaid was convicted of DUI pursuant to 75 Pa.C.S.A. §§ 3802(a)(1)

and (c), which provide:

(a) General impairment.--

(1) An individual may not drive, operate or be in actual 

physical control of the movement of a vehicle after imbibing 

a sufficient amount of alcohol such that the individual is 

rendered incapable of safely driving, operating or being in 

actual physical control of the movement of the vehicle.

***

(c) Highest rate of alcohol.--An individual may not drive, 

operate or be in actual physical control of the movement of a 

vehicle after imbibing a sufficient amount of alcohol such that the 

alcohol concentration in the individual’s blood or breath is 0.16% 

or higher within two hours after the individual has driven, 

operated or been in actual physical control of the movement of 

the vehicle.

75 Pa.C.S.A. §§ 3802(a)(1), (c).

To have sufficient evidence to establish a conviction under 75 Pa.C.S.A. 

§ 3802(a)(1), the Commonwealth must prove that the defendant operated the 

car and that he “imbib[ed] a sufficient amount of alcohol such that [he was] 

rendered incapable of safely driving.” Commonwealth v. Griffith, 32 A.3d 
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1231, 1238 (Pa. 2011) (citation omitted). To sustain a conviction under 75 

Pa.C.S.A. § 3802(c), the Commonwealth must establish that the defendant’s 

BAC was at least .16% or greater within two hours after the defendant last 

drove or operated the motor vehicle. See 75 Pa.C.S.A. § 3802(c).

Here, Shank testified that he observed McQuaid’s vehicle make an

abrupt right-hand turn into a parked vehicle. N.T., 10/4/22-10/5/22, at 44. 

Within 30 seconds of witnessing the accident, Shank called 911 and 

approached the vehicle. Id. at 44-45. Shank stated that he found McQuaid 

unresponsive in the driver’s seat. Id. at 45-46. Shank testified that the police 

arrived within five minutes after he called 911. Id. at 46. 

Officer Hoppes testified that when he arrived at the scene, he observed 

McQuaid in an SUV stopped across lanes of travel in front of a legally parked 

vehicle. Id. at 51. While speaking with McQuaid, Officer Hoppes observed that 

McQuaid had glassy and bloodshot eyes, slurred speech, and an odor of 

alcohol coming from his body. Id. at 54-55. Officer Hoppes testified that 

McQuaid admitted that he had been drinking and that he was the driver of the 

vehicle. Id. at 54, 56. McQuaid was arrested at 1:20 a.m. Id. at 86.

McQuaid arrived at the booking center at 2:02 a.m. Id. at 90. Officer 

Hoppes testified that he observed McQuaid for the requisite 20 minute-period

before the breath test was administered, and McQuaid did not vomit, 

regurgitate, or ingest any substances during that period. Id. at 58. The 

testimony showed that the observation period was from 2:02 a.m. to 2:20 
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a.m. Id. at 90. McQuaid’s breath test results revealed a BAC of .181. Id. at 

91.

Based on the foregoing, there is no reasonable basis on which to argue 

that the evidence was insufficient to sustain McQuaid’s DUI convictions. Thus, 

McQuaid’s insufficiency claim is frivolous. 

The last issue raised in counsel’s Anders brief is whether the court erred 

in allowing the trial to continue in McQuaid’s absence when he arrived late on 

the second day of trial. Anders Br. at 22. Counsel explains that the argument 

is that “this was prejudicial against him and that his right to be present at his 

trial outweighed the trial court’s need for efficient administration.” Id.

A criminal defendant has the right to be present at all stages of criminal 

proceedings. See Commonwealth v. Wilson, 712 A.2d 735, 737 (Pa. 1998). 

However, a “defendant may be tried in absentia if he or she is absent without 

cause when the trial is scheduled to begin or if the defendant absconds without 

cause after the trial commences.” Commonwealth v. Faulk, 928 A.2d 1061, 

1066 (Pa.Super. 2007). Pennsylvania Rule of Criminal Procedure 602 governs

a trial in absentia, and provides, in relevant part:

(A) The defendant shall be present at every stage of the trial 

including the impaneling of the jury and the return of the verdict, 

and at the imposition of sentence, except as otherwise provided 

by this rule. The defendant’s absence without cause at the time 

scheduled for the start of trial or during trial shall not preclude 

proceeding with the trial, including the return of the verdict and 

the imposition of sentence.
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Pa.R.Crim.P. 602(A). We review a decision to conduct a trial in absentia for 

an abuse of discretion. See Commonwealth v. DeCosta, 197 A.3d 813, 816 

(Pa.Super. 2018). Violations of the defendant’s right to be present are subject 

to harmless-error review. See Commonwealth v. Williams, 959 A.2d 1272, 

1283 (Pa.Super. 2008), aff'd, 9 A.3d 613 (Pa. 2010). 

Here, McQuaid was present for the first day of trial. At the close of the 

first day of trial, the court instructed the jury to return the next day at 8:30 

a.m. for closing arguments and the jury charge, which would start at 9:00 

a.m. N.T., 10/4/22-10/5/22, at 97-98. The next morning, McQuaid’s counsel

informed the court that McQuaid had a flat tire and would arrive at court at 

9:10 a.m. Id. at 99. By 9:25 a.m., McQuaid still had not arrived so the court 

decided to proceed without him stating, “[W]e can’t hold up this trial 

indefinitely waiting for [McQuaid].” Id. Before closing arguments began, the

court told the jury, “Just preliminarily, I want to note that [McQuaid] had some 

transportation difficulties coming in this morning but because of the time here 

today, we’re almost a half an hour past the agreed upon starting time, we’re 

going to proceed and you shouldn’t hold this against [McQuaid] for being late, 

okay?” Id. at 99-100. 

Thus, McQuaid was notified of the day and time to return to court. The 

court’s instruction to the jury not to hold his absence against him was 

sufficient to cure any alleged prejudice. This claim is frivolous.

In short, we find the issues raised in counsel’s Anders brief are wholly 

frivolous. Further, after an independent review of the record, we conclude that 
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no other, non-frivolous issue exists. Therefore, we grant counsel’s motion to 

withdraw. Having determined that the appeal is wholly frivolous, we affirm the 

judgment of sentence.

Judgment of sentence affirmed. Motion to withdraw as counsel granted.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 2/27/2024