J-S69035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JENNIFER LYNN HENRY,

Appellant No. 550 MDA 2016

Appeal from the Judgment of Sentence March 17, 2016

in the Court of Common Pleas of Adams County

Criminal Division at No.: CP-01-CR-0000694-2015

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 20, 2016

Appellant, Jennifer Lynn Henry, appeals from the judgment of 

sentence imposed on March 17, 2016, following her non-jury conviction of 

four counts of driving under the influence (DUI),1 possession of a small 

amount of marijuana,2 possession of drug paraphernalia,3operating a 

vehicle without required financial responsibility,4 disregard for traffic lanes,5

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii), (iii) and d(2). 

2 35 P.S. § 780-113(a)(31)(i).

3 35 P.S. § 780-113(a)(32).

4 75 Pa.C.S.A. § 1786(f).
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and careless driving.6 Appellant’s counsel has filed a brief and a petition to 

withdraw under Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the 

appeal is wholly frivolous. We affirm the judgment of sentence and grant 

counsel’s request to withdraw.

On May 9, 2015, at approximately 12:48 a.m., Pennsylvania State 

Trooper George Jones was on routine patrol in Adams County when he saw a 

car, later determined to be driven by Appellant, make an abrupt swerve. 

(See N.T. Suppression Hearing, 10/19/15, at 5-9, 11). Trooper Jones had 

received training and certification in detecting intoxicated drivers and had 

arrested approximately seventy drivers for DUI. (See id. at 6-7). Knowing 

that such abrupt swerves were a sign of impairment, Trooper Jones 

attempted to close the gap between himself and Appellant’s vehicle to 

observe her driving behavior. (See id. at 8). Trooper Jones witnessed the 

vehicle weaving within the lane, drifting to and from the fog line and going 

over the double yellow line. (See id. at 9-10). At that point, Trooper Jones 

initiated a traffic stop, believing that the erratic driving was a sign of 

intoxication. (See id. at 9-10). 

(Footnote Continued) _______________________

5 75 Pa.C.S.A. § 3309(1).

6 75 Pa.C.S.A. § 3714(a).
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When Trooper Jones made contact with Appellant, he smelled 

marijuana and observed her eyes were “glossy and bloodshot and I noticed 

her tongue actually was green.” (Id. at 11). Trooper Jones administered 

field sobriety tests to Appellant, who performed poorly. (See Stipulations of 

Fact for January 12, 2016 Non-Jury Trial, 1/12/16, at 2). Appellant 

consented to a search of her vehicle, and in her purse, which was on the 

passenger seat, Trooper Jones found a smoking device with marijuana 

residue, a baggie with a small amount of marijuana, and two cigarettes 

laced with marijuana. (See id. at 2-3). Trooper Jones arrested Appellant 

and transported her to the hospital for chemical testing; Appellant consented 

to the chemical tests. (See id. at 3). Appellant’s blood tested positive for 

Dihydrocodiene/Hydrocodol, Diazepam, Nordiazepam, Alprazolam, 

marijuana, Codeine, and Hydrocodone. (See id. at 4).

On August 19, 2015, the Commonwealth filed a criminal information 

charging Appellant with DUI and related offenses. (See Information, 

8/19/15, at unnumbered pages 1-2). On September 23, 2015, Appellant 

filed a motion to suppress. A hearing took place on October 19, 2015. At 

issue at the hearing was whether Trooper Jones stopped Appellant on 

suspicion of DUI, which only required reasonable suspicion to justify the stop 

or for erratic driving, which required probable cause. (See N.T. Suppression 

Hearing, 10/19/15, at 3-4). Trooper Jones testified throughout the hearing 

that Appellant’s erratic driving led him to believe that she was driving under 
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the influence. (See id. at 8, 10, 18, 21-22). However, on crossexamination, Trooper Jones admitted that, in his written report, drafted on 

the day of the incident, he did not state that he stopped her on suspicion of 

DUI but rather for erratic driving. (See id. at 16-17).

On October 23, 2015, the trial court denied Appellant’s motion to 

suppress. The trial court specifically found that Trooper Jones had “pointed 

to specific and articulable facts which led him to suspect that [Appellant 

might] be driving under the influence of alcohol or controlled substances.” 

(Opinion, 10/23/15, at 5). The trial court found that Trooper Jones had 

sufficient reasonable suspicion to justify the traffic stop.

A stipulated bench trial took place on January 12, 2016. The trial 

court found Appellant guilty of DUI and the related offenses. (See Order, 

1/12/16, filed 1/19/16, at 1). Following receipt of a pre-sentence 

investigation report, on March 17, 2016, the trial court sentenced Appellant 

to an aggregate term of intermediate punishment of sixty months, with 

ninety of those days on restrictive sanctions and the remainder on 

restorative sanctions. (See Order, 3/17/16, at 2). 

On March 22, 2016, Appellant filed a post-sentence motion, arguing 

that the trial court should have applied the probable cause standard rather 

than the reasonable suspicion standard to the motor vehicle stop and that 

the evidence was insufficient to show probable cause to justify the stop of 

Appellant’s motor vehicle. (See Appellant’s Post-Sentence Motion, 3/22/16, 
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at unnumbered pages 2-3). The trial court denied the motion on March 24, 

2016. 

The instant, timely appeal followed. On April 4, 2016, the trial court 

ordered Appellant to file a concise statement of errors complained of on 

appeal. See Pa.R.A.P. 1925(b). On April 22, 2016, Appellant filed a timely 

Rule 1925(b) statement. See id. On May 3, 2016, the trial court filed an 

opinion. See Pa.R.A.P. 1925(a). 

On June 24, 2016, counsel filed a motion to withdraw in this Court. 

Appellant has not filed a response to counsel’s motion.

On appeal, the Anders brief raises the following questions for our 

review:

Whether the [trial c]ourt abused its discretion in applying 

reasonable suspicion instead of probable cause as the requisite 

standard to the stop and therefore finding the stop to be valid?

Whether the [trial c]ourt abused its discretion in 

misappropriating the weight of the evidence in favor of the 

testimony by the officer, five months after the incident, over the 

police report, which was filed contemporaneously to the traffic 

stop?

(Anders Brief, at 6).

Appellant’s counsel has petitioned for permission to withdraw and has 

submitted an Anders brief, which is procedurally proper for counsel seeking 

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed 

counsel who seeks to withdraw from representing an appellant on direct 

appeal on the basis that the appeal is frivolous must:
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. . . (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, supra at 361. When we receive an Anders brief, we first rule on 

the petition to withdraw, and then review the merits of the underlying 

issues. See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 

2010). In addition, “[p]art and parcel of Anders is our Court’s duty to 

review the record to insure no issues of arguable merit have been missed or 

misstated.” Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 

2006). 

In the instant matter, counsel has substantially complied with all the 

requirements of Anders and Santiago. Specifically, he has petitioned this 

Court to withdraw because he found “. . . no merit in any actual or potential 

issues and is hereby certifying that the appeal is frivolous.” (Petition to 

Withdraw as Counsel, 6/24/16, at 14). In addition, after his review of the 

record, counsel filed a brief with this Court that provides a summary of the 

procedural history and facts with some citations to the record, refers to any 

facts or legal theories that arguably support the appeal, and explains why he 

believes the appeal is frivolous. (See Anders Brief, at 7-11). Lastly, he has 

attached, as an exhibit to his brief, a copy of the letter sent to Appellant 

giving her notice of her rights, and including a copy of the Anders brief and 
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the petition. (See id., at Appendix E); see also Commonwealth v. 

Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005). As noted above, 

Appellant has not responded. Because counsel has substantially complied 

with the dictates of Anders, Santiago, and Millisock, we will examine the 

issues set forth in the Anders brief. See Garang, supra at 240-41.

Both of the issues raised in the Anders brief concern the denial of 

Appellant’s motion to suppress. When we review a ruling on a motion to 

suppress, “[w]e must determine whether the record supports the 

suppression court’s factual findings and the legitimacy of the inferences and 

legal conclusions drawn from these findings.” Commonwealth v. Holton, 

906 A.2d 1246, 1249 (Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 

2007) (citation omitted). Because the suppression court in the instant 

matter found for the prosecution, we will consider only the testimony of the 

prosecution’s witnesses and any uncontradicted evidence supplied by 

Appellant. See id. If the evidence supports the suppression court’s factual 

findings, we can reverse only if there is a mistake in the legal conclusions 

drawn by the suppression court. See id.

The Anders brief first claims that the trial court erred in applying the 

reasonable suspicion standard, rather than the more stringent probable 

cause standard to the stop of Appellant’s vehicle. (See Anders Brief, at 9). 

We disagree. 
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In Pennsylvania, the authority that addresses the requisite cause for a 

traffic stop is statutory; we find it at 75 Pa.C.S.A. § 6308(b), which 

provides:

(b) Authority of police officer.—Whenever a police officer is 

engaged in a systematic program of checking vehicles or drivers 

or has reasonable suspicion that a violation of this title is 

occurring or has occurred, he may stop a vehicle, upon request 

or signal, for the purpose of checking the vehicle’s registration, 

proof of financial responsibility, vehicle identification number or 

engine number or the driver’s license, or to secure such other 

information as the officer may reasonably believe to be 

necessary to enforce the provisions of this title.

Id. This Court has further stated:

[W]hen considering whether reasonable suspicion or 

probable cause is required constitutionally to make a vehicle 

stop, the nature of the violation has to be considered. If it is not 

necessary to stop the vehicle to establish that a violation of the 

Vehicle Code has occurred, an officer must possess probable 

cause to stop the vehicle. Where a violation is suspected, but a 

stop is necessary to further investigate whether a violation has 

occurred, an officer need only possess reasonable suspicion to 

make the stop.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015); see also

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en 

banc), appeal denied, 25 A.3d 327 (Pa. 2011) (holding police officer must 

have probable cause to justify stop of vehicle when investigation subsequent 

to stop serves no “investigatory purpose relevant to the suspected 

violation”).

Here, Trooper Jones specifically testified that he saw Appellant’s 

vehicle make an “abrupt swerve”, and based upon his training and 
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experience, he was aware that such abrupt swerves “are indicative” of 

impaired driving. (N.T. Suppression Hearing, 10/19/15, at 6). Therefore, 

Trooper Jones followed Appellant’s vehicle. (See id. at 8). While observing 

the vehicle, Trooper Jones saw Appellant weaving within the lane, riding the 

fog line, and crossing over the double yellow line. (See id. at 9-10). 

Trooper Jones stated that based upon his training and experience, these 

were all signs of possible intoxication or impairment. (See id. at 10). He 

reiterated that the totality of these driving behaviors, all signs of possible 

intoxication, led him to initiate the motor vehicle stop. (See id.). Thus, 

Trooper Jones was able to state specific and articulable facts indicating that 

Appellant might be driving under the influence and therefore, further 

investigation was required. See Commonwealth v. Sands, 887 A.2d 261, 

271-72 (Pa. Super. 2005). Accordingly, the trial court did not err in holding 

that the Commonwealth was only required to prove reasonable suspicion and 

not probable cause to stop Appellant’s motor vehicle. See id. The first 

issue does not merit relief.

In its second issue, the Anders brief challenges the weight of evidence 

at the suppression hearing, alleging that the trial court erred in crediting the 

testimony of Trooper Jones rather than his written report, which did not 

mention DUI, and which he wrote on the same day as the incident. (See 

Anders Brief, at 10). However, Appellant has not preserved this claim for 

our review.
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We have long held that this Court cannot consider, in the first 

instance, a claim that the verdict is against the weight of the evidence. See 

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here, 

while Appellant did file a post-sentence motion, she challenged the 

sufficiency of the evidence, not the weight. (See Appellant’s Post-Sentence 

Motion, 3/22/16, at unnumbered page 3). Thus, the issue is not preserved 

for our review. See Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa. 

Super. 2003). 

Moreover, even if we were to address the merits of the weight of the 

evidence claim, it would fail. 

Our scope and standard of review of a weight of the evidence claim is 

as follows: 

The finder of fact is the exclusive judge of the weight of 

the evidence as the fact finder is free to believe all, part, or none 

of the evidence presented and determines the credibility of the 

witnesses.

As an appellate court, we cannot substitute our judgment 

for that of the finder of fact. Therefore, we will reverse a jury’s 

verdict and grant a new trial only where the verdict is so 

contrary to the evidence as to shock one’s sense of justice. A 

verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when the figure of Justice totters on her 

pedestal, or when the jury’s verdict, at the time of its rendition, 

causes the trial judge to lose his breath, temporarily, and causes 

him to almost fall from the bench, then it is truly shocking to the 

judicial conscience.

Furthermore, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight 

of the evidence. Rather, appellate review is limited to whether 
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the trial court palpably abused its discretion in ruling on the 

weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en 

banc) (citation and internal quotation marks omitted). “Thus, the trial 

court’s denial of a motion for a new trial based on a weight of the evidence 

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949 

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation 

omitted).

In its Rule 1925(a) opinion, the trial court explained that as the finder 

of fact, it “[was] free to believe or disbelieve all, part or none of the 

testimony. . . .” and it chose to credit Trooper Jones’ testimony. (Trial Court 

Opinion, 5/03/16, at 5); see Commonwealth v. Griscavage, 517 A.2d 

1256, 1259 (Pa. 1986). “[I]t is for the fact-finder to make credibility 

determinations, and the finder of fact may believe all, part, or none of a 

witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa. 

Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted). 

This Court cannot substitute our judgment for that of the trier of fact. See 

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 

134 S.Ct. 1792 (2014). This issue does not merit relief. 

Appellant’s issues lack merit. Further, this Court has conducted an 

independent review of the record as required by Anders and Santiago and 

finds that no meritorious issues exist. 
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Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2016