J-S38034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DAVID M. SEITZER, :

:

Appellant : No. 2018 MDA 2014

Appeal from the Judgment of Sentence entered on October 28, 2014

in the Court of Common Pleas of Lycoming County,

Criminal Division, No. CP-41-CR-0000882-2013

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2015

David M. Seitzer (“Seitzer”) appeals from the judgment of sentence 

imposed following his conviction of criminal mischief. See 18 Pa.C.S.A. 

§ 3304(a)(5). Additionally, Kirsten A. Gardner, Esquire (“Gardner”), 

Seitzer’s counsel, has filed a Petition to Withdraw as counsel and an 

accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744 

(1967). We grant Gardner’s Petition to Withdraw and affirm Seitzer’s 

judgment of sentence.

On May 14, 2013, Seitzer was charged with one count of criminal 

mischief for damaging a rental property owned by his brother, George 

Seitzer (“George”). Seitzer lived on the property without permission and 

was eventually evicted. Thereafter, George discovered extensive damage to 

the property. In a letter to George, Seitzer admitted to damaging the 
J-S38034-15

- 2 -

property out of emotional pain. Darlene Moretz (“Moretz”), an insurance 

adjuster for Erie Insurance Group (“Erie”), investigated the damages and 

determined that they were the result of vandalism. Moretz estimated that 

the damages totaled $3,323.79. 

The case proceeded to a non-jury trial, after which Seitzer was found 

guilty of criminal mischief. On October 28, 2014, the trial court sentenced 

Seitzer to two years of probation and seventy-five hours of community 

service. The trial court also ordered Seitzer to pay restitution to Erie in the 

amount of $2,823.79, and to George in the amount of $500.00.1 Seitzer 

filed a timely Notice of Appeal. 

Seitzer’s counsel, Gardner, has filed an Anders Brief raising the 

following question: “Whether the lower court erred [by determining] that 

there was sufficient evidence presented at trial to sustain a verdict of guilt as 

to the charge of criminal mischief?” Anders Brief at 4. Gardner filed a 

separate Petition to Withdraw with this Court on March 26, 2015. Seitzer 

filed neither a pro se brief, nor retained alternate counsel for this appeal.

We must first determine whether Gardner has complied with the 

dictates of Anders in petitioning to withdraw from representation. See 

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) 

(stating that “[w]hen faced with a purported Anders brief, this Court may 

not review the merits of any possible underlying issues without first 

 

1 George had a $500.00 deductible under his insurance policy with Erie.
J-S38034-15

- 3 -

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to 

Anders, when an attorney believes an appeal is frivolous and wishes to 

withdraw as counsel, he or she must

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record, counsel has 

determined the appeal would be frivolous; (2) file a brief 

referring to any issues that might arguably support the appeal, 

but which does not resemble a no-merit letter; and (3) furnish a 

copy of the brief to the defendant and advise him of his right to 

retain new counsel, proceed pro se, or raise any additional points 

he deems worthy of this Court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) 

(citation omitted).

Additionally, the Pennsylvania Supreme Court has determined that a 

proper Anders 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Here, Gardner has complied with each of the requirements of Anders

and Santiago. Gardner indicates that she conscientiously examined the 

record and determined that an appeal would be frivolous. Further, Gardner’s 

brief meets the standards set forth in Santiago by providing a factual 

summation of Seitzer’s case, with support for her conclusion that sufficient 
J-S38034-15

- 4 -

evidence was presented at trial to prove criminal mischief, rendering 

Seitzer’s appeal wholly frivolous. Finally, Gardner provided a copy of her 

letter to Seitzer informing him of her intention to withdraw as counsel and 

advising him of his rights to retain new counsel, proceed pro se, and file 

additional claims. Because Gardner has complied with the procedural 

requirements for withdrawing from representation, we must next conduct an 

independent review and determine whether Seitzer’s appeal is, in fact, 

wholly frivolous.

Seitzer contends that the trial court erred in determining that there 

was sufficient evidence presented to sustain a guilty verdict for criminal 

mischief. Anders Brief at 8-9. 

Our standard of review challenging the sufficiency of the evidence is as 

follows:

[W]e consider the evidence in the light most favorable to the 

Commonwealth as verdict winner. In that light, we decide if the 

evidence and all reasonable inferences from that evidence are 

sufficient to establish the elements of the offense beyond a 

reasonable doubt. We keep in mind that it was for the trier of 

fact to determine the weight of the evidence and the credibility 

of the witnesses. The [fact-finder] was free to believe all, part, 

or none of the evidence. This Court may not weigh the evidence 

or substitute its judgment [f]or that of the fact[-]finder.

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007) (citation 

omitted). 

A “person is guilty of criminal mischief if he intentionally damages real 

or personal property of another.” See 18 Pa.C.S.A. § 3304(a)(5). Here, the 
J-S38034-15

- 5 -

evidence indicated that George’s property was damaged while Seitzer was 

residing there. N.T., 9/25/14, at 7-8. Seitzer also admitted to damaging 

the property in a letter to George. Id. at 9-10. Furthermore, the insurance 

adjuster, Moretz, confirmed that the damage was intentional and not the 

result of ordinary use. Id. at 25. Thus, based on the evidence presented at 

trial, viewed in a light most favorable to the Commonwealth, we conclude 

that the evidence was sufficient to support Seitzer’s criminal mischief 

conviction. See Commonwealth v. Adams, 882 A.2d 496, 499 (Pa. Super. 

2005) (concluding that evidence was sufficient to support criminal mischief 

conviction where the defendant intentionally punched a vehicle, resulting in 

specified damages).

Further, upon our independent review, we conclude that Seitzer’s 

appeal is wholly frivolous, and grant Gardner leave to withdraw as counsel.

Petition to Withdraw as counsel granted. Judgment of sentence 

affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015