J-A25013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CLARENCE R. HOBEREK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 67 WDA 2021

Appeal from the Judgment of Sentence Entered June 10, 2020,

in the Court of Common Pleas of Beaver County,

Criminal Division at No(s): CP-04-CR-0001689-2019.

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

MEMORANDUM BY KUNSELMAN, J.: FILED: January 19, 2022

Clarence R. Hoberek appeals from the judgment of sentence imposed 

following his conviction for DUI and related summary offenses. Additionally, 

Hoberek’s counsel filed a petition to withdraw from representation and an 

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

(1967). Upon review, we grant counsel’s petition, and affirm the judgment of 

sentence.

Briefly, the facts are as follows. On July 2, 2019, Hoberek rear-ended 

another vehicle on Midland Road in Beaver County, Pennsylvania. When 

Officer Eric Cain arrived and spoke with Hoberek, he detected the odor of 

alcohol. He also observed Hoberek stagger as he approached him. When the 

officer asked Hobrek if he had been drinking, Hoberek initially said no, but 

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* Retired Senior Judge assigned to the Superior Court.
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then admitted to drinking earlier that day. Hoberek was arrested. A blood 

test revealed Hoberek had a BAC range of .15 to .18 percent. Upon further 

investigation, Officer Cain also discovered that Hoberek’s driver’s license was 

suspended, he was uninsured, and his vehicle was not registered. The officer 

charged Hoberek with DUI and various summary offenses.

At trial, Hoberek testified and admitted that he was driving the night of 

the accident and that he had been drinking beforehand. He also did not 

dispute the blood test result. The jury found him guilty of DUI,

1

 and the trial

court found him guilty of the summary offenses. 

The trial court sentenced Hoberek to 12 to 24 months’ incarceration 

followed by 3 years of probation for the DUI and imposed fines for the 

summary offenses. Hoberek filed a post-sentence motion, which the trial 

court denied. No appeal was filed. 

Following a pro se PCRA petition, the court reinstated Hoberek’s direct

appeal rights. Hoberek then filed this timely appeal. 

Counsel filed a petition to withdraw from representation and an Anders

brief with this Court. Hoberek did not retain independent counsel or file a pro 

se response to the Anders brief.

Before we may consider the issues raised in the Anders brief, we must 

first consider counsel’s petition to withdraw from representation. See

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding 

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1 75 Pa.C.S.A. § 3802(b)
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that, 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). Pursuant to Anders, when counsel believes an appeal is frivolous 

and wishes to withdraw from representation, counsel must do the following:

(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. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), our Supreme Court addressed the second requirement of Anders, i.e., 

the contents of an Anders brief, and required that the brief:

(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. Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review 

of the record to ascertain if there appear on its face to be arguably meritorious 
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issues that counsel, intentionally or not, missed or misstated.” 

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

Here, counsel did not comply with the Anders requirements. First, 

counsel did not attach the Notification of Rights letter to his Petition to 

Withdraw. Instead, he attached it to the Anders brief as Exhibit F. This Court 

has held that counsel must “attach to their petition to withdraw a copy of the 

letter sent to their client advising him or her of their rights.” Commonwealth 

v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). Because it appears 

counsel properly mailed Hoberek the letter, we will overlook the fact that 

counsel attached it to the wrong document in the record. 

Additionally, counsel’s brief does not substantially comport with our 

standards. A proper Anders brief “articulates the issues in neutral form, cites 

relevant legal authorities, references appropriate portions in the record to aid 

our review, and concludes that, after a thorough review of the record, the 

appeal is wholly frivolous.” Commonwealth v. Wrecks, 931 A.2d 717, 720 

(Pa. Super. 2007). Counsel must set forth the issues that the defendant 

wishes to raise and any other claims necessary to effectuate appellate 

presentation of those issues. Commonwealth v. Smith, 700 A.2d 1301, 

1303 (Pa. Super. 1997). While counsel need not raise issues if he believes 

there are none, he should “flag” those issues and include relevant case 

citations and references to the record. Id. at 1304. 
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Here, counsel merely notes in the “Statement of Place of Raising or 

Preservation of Issues” section of the brief that Hoberek claims he should not 

have been convicted because he did not cause the accident. Counsel further 

states that Hoberek’s sentence does not appear to be illegal. Counsel did not 

identify or properly frame the issues Hoberek wished to raise. Counsel also 

did not address Hoberek’s issues by citing relevant statutes or controlling case 

law that led him to conclude the appeal is frivolous. See Santiago, 978 A.2d 

at 361.

Nevertheless, we decline to remand the matter for counsel to correct 

the deficiencies when this would serve no purpose other than to delay 

resolution of this appeal and waste judicial resources.2 See e.g. In re 

Adoption of V.G., 751 A. 2d 1174, 1178 (Pa. Super. 2000). Because we can 

decipher the issues and they are patently frivolous, this matter presents a rare 

instance where remand for a proper brief is not necessary.3 We will address 

the merits of Hobrek’s issues.

Hoberek first claims that there was insufficient evidence to convict him 

of the various offenses, particularly DUI. Hoberek argues that the evidence 

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2 We note that prior to reinstatement of Hoberek’s direct appeal rights, counsel 

had filed a petition to withdraw and an Anders brief with this Court. However, 

due to various deficiencies the petition was denied and the brief was stricken.

3 We direct counsel, in the future, to be more mindful of the Rules of Appellate 

Procedure and to follow the dictates of Santiago. 
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failed to establish that he caused the accident and therefore should not have 

been found guilty of DUI. Anders Brief at 5.

In reviewing a sufficiency of the evidence claim, this Court:

must determine whether the evidence admitted at trial, as well as 

all reasonable inferences drawn therefrom, when viewed in the 

light most favorable to the verdict winner, are sufficient to support 

all elements of the offense. Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations 

omitted). Any inferences “must flow from facts and circumstances proven in 

the record, and must be of such volume and quality as to overcome the 

presumption of innocence and satisfy the jury of an accused's guilt beyond a 

reasonable doubt.” Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa. 

Super. 1991). “The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail even under 

the limited scrutiny of appellate review.” Id. “Because evidentiary sufficiency 

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

is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

To establish DUI (high rate) the Commonwealth must prove that the 

defendant: 1) imbibed alcohol; 2) was driving, operating, or in actual physical 

control of the movement of a vehicle on highway or trafficway; and 3) within 

two hours after driving, operating or being in physical control of a vehicle, the 

defendant’s BAC was at least .10 percent but less than .16 percent. 75 
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Pa.C.S.A. § 3802(b); Commonwealth v. Haight, 50 A.3d 137, 141 (Pa. 

Super. 2012). 

Here, Hoberek admitted that he had three beers earlier the night of the 

accident. Witnesses at the scene indicated that Hoberek smelled of alcohol

and was unsteady on his feet. Hoberek admitted that he was driving when he 

rear ended the car in front of him. Finally, the blood test result indicated that 

Hoberek’s BAC exceeded the .10 percent threshold required for a conviction. 

The evidence further showed that the police complied with the two-hour time 

frame. These facts were sufficient to establish the elements of DUI (high 

rate).

Additionally, the trial court found Hoberek guilty of operating a vehicle 

without insurance, driving while his license was suspended, and using an 

illegal plate. The trial court noted that Hoberek’s “certified driving record 

established that his driver’s license was suspended/revoked; [the officer’s] 

testimony established that [Hoberek] neither had the car properly registered 

nor insured; and [the officer’s] testimony established that a record check 

revealed that the license plate on [Hoberek’s] vehicle was, in fact, registered 

to a different vehicle.” These facts were sufficient to convict Hoberek of the 

referenced summary offenses. Trial Court Opinion, 3/8/21, at 8.

We therefore conclude that Hoberek’s sufficiency claims are frivolous.

Next, we consider whether Hoberek’s sentence is illegal. It is unclear 

whether Hoberek disputes the legality of his sentence, but since counsel briefly 

referenced this potential issue, we will address it. See Hoberek’s Brief at 5. 
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Here, Hoberek was sentenced to 12 to 24 months’ incarceration followed 

by 3 years of probation for his DUI conviction. This was Hoberek’s third DUI 

offense, which made it a first degree misdemeanor. The standard range was 

12 to 18 months of incarceration with the maximum sentence being 5 years. 

Hoberek’s sentence was clearly within the permitted parameters, and 

therefore is legal.

We therefore conclude that Hoberek’s sentencing claim is frivolous. 

Based upon the foregoing, we conclude that Hoberek’s claims on appeal 

are frivolous. Further, in accordance with Dempster, we have independently 

reviewed the certified record to determine if there are any non-frivolous issues 

that counsel may have overlooked. Having found none, we agree that the 

appeal is wholly frivolous. Consequently, we grant counsel’s petition to 

withdraw and affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2022
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