J-S24019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN M. MURPH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1086 MDA 2022

Appeal from the Judgment of Sentence Entered July 11, 2022

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

No(s): CP-22-CR-0005126-2021

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

MEMORANDUM BY LAZARUS, J.: FILED JULY 27, 2023

Kevin M. Murph appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Dauphin County, following his convictions of one 

count each of driving under the influence - controlled substance (DUI),1

driving in excess of 55 miles per hour speed limit by 17 miles per hour,

2 and 

disregard traffic lane.

3

 Additionally, Murph’s counsel, Spencer H.C. Bradley, 

Esquire, has filed an application to withdraw as counsel, and an accompanying 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 3802(d)(1)(i).

2 75 Pa.C.S.A. § 3362(a)(2).

3 Id. at § 3309(1).
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Anders4 brief. Upon review, we grant Attorney Bradley’s application to 

withdraw and affirm Murph’s judgment of sentence.

The trial court summarized the factual history of this case as follows:

On August 15, 2021, Pennsylvania State Police observed a vehicle 

traveling at 72 miles [per] hour in a 55-mile-per-hour zone within 

the area of Dauphin County. [The trooper] conducted[ a traffic 

stop, at which time the trooper] could smell the odor of marijuana 

emanating from [Murph]’s vehicle. [Murph’s] eyes were 

bloodshot. [Murph] relayed that he had a medical marijuana card. 

[Murph] showed signs of impairment during the standard field 

sobriety test[s, which] included [inter alia,] a walk-and-turn, and

the one-leg stand. . . . [D]uring the one-leg stand, [Murph] was 

unable to keep his hands down at his side, [he] was swaying, and 

kept putting his foot down. [Murph] also showed eye tremors and 

a lack of convergence during the finger-to-nose test. [Murph] 

submit[ted] to a legal blood draw[, which showed] his THC levels 

of Delta-9 being 5.3[,] Delta-9 Carboxy being 74[,] and the 

inactive metabolite being .10.

Trial Court Opinion, 10/3/22, at 1-2.

Murph was charged with the above-mentioned offenses, after which he 

proceeded to a non-jury trial on July 11, 2022. The trial court found Murph 

guilty and proceeded to sentencing that same day, imposing six months of 

intermediate punishment, with the first month to be served on house arrest

with electronic monitoring.

Murph filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Attorney 

Bradley subsequently filed with this Court an application to withdraw as 

____________________________________________

4 Anders v. California, 368 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009).
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counsel and a brief pursuant to Anders. Murph did not file a pro se brief, nor 

did he retain alternate counsel for this appeal.

Before addressing Murph’s issues on appeal, we must determine 

whether Attorney Bradley has complied with the dictates of Anders and its 

progeny in petitioning to withdraw from representation. See 

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) 

(“[w]hen presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw”). Pursuant to Anders, when counsel believes that an appeal is 

frivolous and wishes to withdraw from representation, he or she must:

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

making a conscientious examination of the record and 

interviewing the defendant, counsel has determined the appeal 

would be frivolous, (2) file a brief referring to any issues in the 

record of arguable merit, and (3) furnish a copy of the brief to 

defendant and advise him of his right to retain new counsel or to 

raise any additional points that he deems worthy of the court’s 

attention. The determination of whether the appeal is frivolous 

remains with the court.

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

omitted).

Additionally, the Pennsylvania Supreme Court has explained 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 
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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.

After determining that counsel has satisfied the technical requirements 

of Anders and Santiago, this Court must then “conduct a simple review of 

the record to ascertain if there appears 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).

Instantly, our review of counsel’s Anders brief and application to 

withdraw reveals that Attorney Bradley has complied with each of the technical 

requirements of Anders/Santiago. Attorney Bradley indicates that he has 

made a conscientious examination of the record and determined that an 

appeal would be frivolous. The record further reflects that Attorney Bradley

has furnished a copy of the Anders brief to Murph and advised Murph of his 

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

he deems worthy of this Court’s attention. Additionally, the Anders brief 

complies with the requirements of Santiago. As Attorney Bradley has 

complied with all of the requirements for withdrawing from representation, we 

will examine the record and make an independent determination of whether 

Murph’s appeal is, in fact, wholly frivolous.
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In the Anders brief, Attorney Bradley raises three issues.

5

In the first 

issue, Murph challenges the sufficiency of the evidence to support his DUI 

conviction. Id. at 11. Murph concedes that control is not at issue; rather, the 

sole issue for this Court is whether the Medical Marijuana Act6 overrides the 

DUI statute’s prohibitions on driving while under the influence of marijuana. 

Id. at 11-17.

As Attorney Bradley candidly points out, this Court has already 

addressed this question in Commonwealth v. Dabney, 274 A.3d 1283 (Pa. 

Super. 2022). This Court, in Dabney, determined that the Medical Marijuana 

Act does not take precedence over the Vehicle Code. Id. at 1292. Similarly, 

in Commonwealth v. Watts, 283 A.3d 1252 (Pa. Super. 2022), this Court 

reaffirmed the ruling in Dabney and noted that “because the [Medical 

Marijuana Act] does not address driving and marijuana, but the Vehicle Code 

does, these statutes are not conflicting. Consequently, it is illegal to drive 

with any amount of marijuana, medical or otherwise, in one’s system.” 

Watts, 283 A.3d at 1256 (emphasis added). 

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5 We note that Attorney Bradley phrases his statement of questions involved 

in terms of whether this Court should permit him to withdraw. See Anders

Brief, at 5. However, in the argument section, Attorney Bradley outlines two

challenges to the sufficiency of the evidence, and one challenge to the 

discretionary aspects of Murph’s sentence. See Anders Brief, at 11, 18, 20-

22.

6 35 P.S. § 10231.303.
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Instantly, Murph was operating a vehicle with marijuana metabolites in 

his blood stream. Thus, the Commonwealth presented sufficient evidence to 

sustain Murph’s conviction of DUI. In light of the foregoing, Murph’s challenge 

is frivolous, and he is entitled to no relief.

In the second issue, Murph challenges the sufficiency of the evidence of 

his convictions of driving in excess of 55 miles per hour speed limit by 17 miles

per hour, and disregarding traffic lanes. See Anders Brief at 18-19. Attorney 

Bradley notes that Murph proceeded to a stipulated non-jury trial, and he did 

not preserve a challenge to these offenses and, thus, his claims are waived. 

Id. Upon review, we agree. 

Indeed, at trial, Murph’s argument and defense were focused solely on 

the interplay between the Medical Marijuana Act and the Vehicle Code. 

Additionally, Murph did not challenge these convictions in a written post-trial 

motion. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived 

and cannot be raised for the first time on appeal.”). Moreover, Murph did not 

raise this issue in his Rule 1925(b) statement. See Rule 1925(b)(4)(vii) 

(“Issues not included in the Statement and/or not raised in accordance with 

the provisions of this paragraph (b)(4) are waived.”). Consequently, these

claims are waived and are meritless.

In his third claim, Murph challenges the discretionary aspects of his 

sentence, from which there is no automatic right to appeal. See 

Commonwealth v. Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016). 
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Rather, when an appellant challenges the discretionary aspects of his 

sentence, we must consider his brief on this issue as a petition for permission 

to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997); 

see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987). Prior 

to reaching the merits of a discretionary sentencing issue,

[this Court conducts] a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, see 

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief 

has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there 

is a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. § 

9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation 

marks and some citations omitted).

Here, Murph filed a timely notice of appeal. However, as Attorney 

Bradley notes in the Anders Brief, Murph did not raise any sentencing claim 

in a post-sentence motion or in a timely objection at sentencing. See Anders

Brief, at 20-22. Additionally, this claim, like his second, is absent from 

Murph’s Rule 1925(b) statement. Accordingly, the claim has not been 

preserved for our review. See Moury, supra.

Finally, our independent review of the record discloses no other 

“arguably meritorious issues that counsel, intentionally or not, missed or 

misstated.” Dempster, 187 A.3d at 272. As such, we grant Attorney 

Bradley’s application to withdraw, and affirm the judgment of sentence.
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Judgment of sentence affirmed. Application to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/27/2023