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

v.

JOSEPH PAUL RITCHIE

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 296 MDA 2021 Appeal from the Judgment of Sentence Entered October 1, 2020 In the Court of Common Pleas of Luzerne County Criminal Division at

No(s): CP

- 40

- CR

- 0001442

- 2019

BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J. * MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 5, 2022 Joseph Paul Ritchie (Ritchie) appeals nunc pro tunc from the judgment of sentence imposed by the Court of Common Pleas of Luzerne County (trial court) following his bench conviction of DUI

─ g eneral i mpairment (second offense ), driving with a suspended license (DUS) and related summary traffic offenses. 1 Counsel for Ritchie has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967) and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), and a petition for leave to withdraw as counsel. The Anders brief challenges the sufficiency of the evidence supporting the DUI conviction. We grant the petition to withdraw and affirm the judgment of sentence.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. §§ 3802(a)(1) and 1543(b)(1).J

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- I.
A. This case arises from a November 27, 2018 traffic stop conducted by Police Officers Isaac Troutman and Jennifer Dempsey of the Wilkes

- Barre Township Police Department. Officer Troutman initiated the stop after he observ ed Ritchie drive his vehicle at a high rate speed in an erratic manner and he arrested Ritchie on suspicion of DUI. In July 2019, Ri t chie filed an omnibus pretrial motion seeking suppression of the evidence contending that the traffic stop was illegal because it was not supported by probable cause. At the August 27, 2019 suppression hearing , Officers Troutman and Dempsey testified on behalf of the Commonwealth regarding the circumstances of the stop and arrest

. 2 Officer Troutma n recounted that he was on routine pa trol and had stopped at a red light at about 1:32 a.m. when h e observed Ritchie’s vehicle pass by him at a high rate of speed in a 35 mile

- per - hour (mph) zone, revving his engin e . Officer Troutman immediately followed the vehicle and “ observed several violations, which were roadways lane d for travel, failure to maintain the fog l i ne, failure to use a turn signal when exiting [the] off ramp and failed to stop and use turn signal again when turning right onto [the adjacent] street.” (N.T.

_________________ __________ ______ ____ _______ 2 The defense did not call any witnesses at the hearing

. The transcript from the suppression hearing was incorporated into the trial record by stipulation of the parties.J

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Suppres sion, 8/27/19, at 7

- 8). The o fficer explained that he observed
Ri t chie’s vehicle cross the fog and double yellow line s two or three times and dr ive through a stop sign without us ing a turn signal. When Officer Troutman effectuated the traffic stop , Ritch ie parked his vehicle “ half on the road and half on the sidewalk.” ( Id. at 9). On cross

- examination, Officer Troutman acknowledged that he did not know the exact speed at which Ritchie ’s car was travelling when he passed the patrol vehicle. Officer Demp sey wa s parked in a lot directly across from where Officer
Troutman was located when she “heard a revving engine coming from the north . . . And when I went to look to see the vehicle coming, because you could hear it, it flew past both of us at a high rate of speed

. . . that was completely unsafe and not prudent for the intersection in the area

. ” ( Id. at 15 ). S he followed Officer Troutman’s patrol car and observed Ri t chie’s vehicle

weav e, fail to stop at a stop sign and stop half on the roadway and half on the sidewalk when Officer Troutman initiated the traffic stop

. Officer Dempsey testified that she is certified in field sobriety testing and instruction and that she attempted to administer field tests to Ri t chie , who smelled strongly of alcoho l to the extent that “you could smell alcohol coming from his or ifices; his face, his mouth, his clothing, the car.” ( Id. at 19). Ri t chie ’s demeanor was aggressive and his responses “shaky and unsteady.” ( Id. at 17). Although the area where Officer Dem psey attempted to conduct sobriety testing was well

- lit and appropriate, Ri tch ie complainedJ

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about the location and about the contact lens in his eye. Ritchie “could not maintain his balance [or] demeanor. He was erratic with his behavior, aggressive. ” ( Id. at 18). Ri t chie informed the officers that he had three beers that night and Officer Dempsey noticed that his eye was twitching. Because Ritchie’s behavior signaled a safety issue to the officers , the y asked him to consent to a blood d raw . Ritchie refused to consent. On cross

- examination , Officer Dempsey acknowledged that s he did not know the speed at which
Ri t chie was traveling before the sto p and that no chemical test of any sort was performed on him

. The trial court denied the mot ion to suppress at the conclusion of the hearing.
B. At Ritchie’s December 3, 2019 bench trial , t he Commonwealth called Officers Troutman and Dempsey as witnesses and Ritchie testified on his own behalf

. Officer Troutman recounted that he observed Officer Dempsey’s field sobriety test instructions and described Ritchie as “very erratic and belligerent. He was not cooperating with Officer Dempsey’s verbal command.” (N.T. Trial, 12/03/19, at 4). Because of this, none of the tests were completed. Ritchie “was mad, sad, like any normal intoxicated person that I’ve been around.” ( Id. at 6). Ritchie told the officer s that he drank three beers that night and that he was coming from his brother’s home when they pulled him over.J

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Office r Dempsey testified that when Ritchie initial ly exited his vehicle, he held onto the door and could not maintain his balance. His gait was unsteady and “ he was basically all over the place. . . He was aggressive, unstable, going back and forth

. . . with his emotions, was unable to contain himself. ” ( Id. at 9

- 10 ). Ritchie remained uncooperative when transported to the hospital, refused chemical testing and “couldn’t keep his memory steady on what was going on.” ( Id. at 11). Officer Dempsey opined base d on her training and experience that she “would 100 percent say” that Ritchie was driving under the influence of alcohol. She clarified on cross

- examination that it was unsafe for Ritchie to complete the field sobriety testing “because he couldn’t mainta in his balance and stability which when you’re doing the testing, that is all part of the testing. So just by him not being able to maintain his stability and balance . . . that’s what was unsafe. I couldn’t have him tripping over himself and falling on the floor.” ( Id. at 15). Ritchie testified that he “went out earlier and played pool with my father and then went home, went to sleep, and then got up at 1, got pulled over at 1:30.” ( Id. at 16). He averred that he drank three bottles of Miller Light from 7:00 to 10:00 p.m. and that he went to sleep at his father’s house , where his brother also resides . On cross

- examination , he stated that he was driving home when the officers pull ed him over and averred that he was not travelling at an unsafe spee d and was able to perform field sobriety tests. Ritchie acknowledged that he was “very, very angry ” because the officers pulled himJ

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over and “didn’t listen to [him] at all.” ( Id . at 18

- 19). H e refused blood testing because he does not like needles. The trial court, after considering the evidence presented at trial and reviewing the suppression transcript, found Ritchie guilty of the above

mentioned offenses. On October 1, 2020, the court impo sed a sentence of six months of restricted probation for the DUI conviction , with the first 15 days to be served on house arrest / electronic monitoring , followed by a consecutive term of 60 days’ house arrest for the DUS offense. Ritchie timely appeal ed

an d he and t he trial court complied with Rule 1925. See Pa.R.A.P. 1925(a)

- (b). In its opinion, the court rejected Ritchie’s claim challenging the sufficiency of the evidence to sustain his DUI conviction . I t expressly “found the testimony presented by Officer Troutman and Officer Dempsey at the hearings to be credible and did not find the Defendant credible.” (Trial Court Opinion, 11/18/20, at 7 ). After this Court dismissed Ri t chie’s appeal for failure to f ile a docketing
statement , he successfully sought reinstatement of his appellate rights nunc pro tunc

. See Pa.R.A.P. 3517. This timely appeal followed. C ounsel for Ritchie filed an application to withdraw as counsel and an Anders brief with this Court i n September 2021.J

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- II.

“ When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to withdraw.” Commonwealth v. Cox , 231 A.3d 1011, 1014 (Pa. Super. 2020) (citation omitted ). Pursuant to Anders , when counsel believes an appeal is frivolous and wishes to withdraw from representation , counsel is required to :

“ (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 defe ndant 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

. ” Id . at 1015

. Regarding the substantive requirements for the contents of an Anders Brief, our Supreme Court explained in Commonwealth v. Santiago , 978 A.2d 349 ( Pa. 2009 ) that 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. ” Santiago , supra at 361.

“ Counsel should articulate the relevant facts of record, controlling case law and/o r statutes on point that have led to the conclusion that the appeal isJ

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frivolous. ” Id

. Once counsel has satisfied the Anders requirements, it is then

our responsibility “to conduct a simple review of the record to ascertain if there appear on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated.” Commonwealth v. Dempster , 187 A.3d 2 66, 272 (Pa. Super. 2018) (citation omitted). Instantly , counsel has complied with the requirements of Anders

. Counsel indicated that he conscientiously examined the record and determined that an appeal would be frivolous. ( See Application to Withdraw as Counsel, 9/01/21, at 2

- 3). Further, counsel ’ s Anders brief c omplies with the requirements set forth in Santiago

. ( See Anders Brief, at 3

- 16). Finally, the record includes a copy of the letter that counsel sent to Ritchie advis ing him of his right to proceed pro se or retain alternate counsel to file additional claims and stating counsel ’ s intention to seek permission to withdraw. ( See Letter from Robert M. Buttner , Esq. to Ritchie, 9/01/21). B ecause counsel has fulfilled the procedural requirements for withdrawing from representation, we will conduct an independent review to determine whether t his appeal is wholly frivolous.
III.
T he Ander

s b rie f raises one issue challeng ing the sufficiency of evidence supporting Ritchie’s DUI conviction. Ri t chie contends that the Commonwealth failed to establish his guilt beyond a reasonable doubt because the evidenceJ

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did not demonstrate that he was substantially impaired or incapable of safely operating his vehicle. ( See Anders Brief, at 10, 12). 3
T he offense of DUI ─ g eneral i mpairment provides that “ a n 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.” 75 Pa.C.S. § 3802(a)(1). “ The Commonwealth must establish that the defendant (1) was operating a motor vehicle (2) after im bibing a sufficient amount of alcohol such that he was

_________________ __________ ______ ____ _______ 3 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 estab lished 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 eva luated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Banks , 253 A.3d 768, 774 (Pa. Super. 2021), appeal denied , 2021 WL 5504272 (Pa. file d Nov. 24, 2021)

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rendered incapable of safely operating the motor vehicle. ” Commonwealth

v. Clemens , 242 A.3d 659, 665 (Pa. Super. 2020)

.

To prove a perso n is i ncapable of driving safely, the Commonwealth must prove that alcohol has substantially impaired the normal mental and physical faculties required to operate the vehicle safely; substantial impairment means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudentl y to changing circumstances and conditions. The meaning of substantial impairment is not limited to some extreme condition of disability. Section 3802(a)(1), like its predecessor, is a general provision and provides no specific restraint upon the Commonw ealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving

. Id. (citation omitted).
Here , the Commonwealth presented sufficient evidence to support Ritchie’s DUI conviction. Officers Troutman and Dempsey both testified that they observed Ritchie drive his vehicle erratically at a high rate of speed in a 35 mph zone. Ritchie had difficulty exi ting his car and used his car door for support. The o fficers also testified to his aggressive and uncooperative demeaner throughout the incident , and he admitted that he had been “very, very angry” that they stopped him. Officer Dempsey eventually gave u p on completing the field sobriety tests because Ritchie was “all over the place” with his behavior and she believed , based on her experience in conduc t ing and instructing on such testing , that continuing was a safety issue as she did not want to risk him falling and injuring himself. Ritchie re fused to submit to

a blood test and exhibited signs of inebriation that both officers recognized as intoxication to the point where they could dete ct the odor of alcohol emanatingJ

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from his orifices , clothing and car . In short, there was more than sufficient indicia that Ritchie was intoxicated to a degree that rendered him un able to drive safely , and the record fully s upports a finding, beyond a rea sonable doubt, that he was operating a motor vehicle after imbibing an amount of alcohol that made it unsafe for him to do so. Finally, as required by Anders , we have independently reviewed the record , which discloses no other non

- frivolous issues that Rit chie could raise that his counsel overlooked. See Dempster , supra at 272. Having concluded that there are no meritorious issues, we grant counsel ’ s petition to withdraw and affirm Ri t chie’s judgment of sentence. Petition to withdraw as counsel granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/05/2022