Opinion
J-S67042-17 No. 3449 EDA 2016
11-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSE GARCIA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 10, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000696-2016 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Jose Garcia, appeals from the judgment of sentence entered in the Lehigh County Court of Common Pleas, following his bench trial convictions for two counts of driving under the influence of alcohol or controlled substance ("DUI"), and one count each of careless driving, immediate notice of accident to police department, and driving while operating privilege is suspended or revoked. We affirm.
75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), 3746(a)(2), 1543(a), respectively.
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We clarify that Appellant was charged and convicted of two counts of DUI under Section 3802(a)(1).
Appellant raises three issues for our review:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING [APPELLANT'S] REQUEST FOR A JURY TRIAL?(Appellant's Brief at 5).
WHETHER THE COMMONWEALTH PRESENTED SUFFICIENT EVIDENCE THAT [APPELLANT] DROVE, OPERATED, OR WAS IN ACTUAL PHYSICAL CONTROL OF THE VEHICLE AT TRIAL TO SUSTAIN THE DRIVING UNDER THE INFLUENCE CHARGES?
WHETHER THE VERDICT OF GUILTY WAS AGAINST THE WEIGHT OF THE EVIDENCE AS NO DIRECT EVIDENCE WAS PRESENTED AT TRIAL THAT [APPELLANT] DROVE, OPERATED, OR WAS IN ACTUAL PHYSICAL CONTROL OF THE VEHICLE, AND [APPELLANT'S] WITNESS TESTIFIED THAT SHE WAS THE DRIVER OF THE VEHICLE?
The summary of the argument section in Appellant's brief does not pertain to any of the issues Appellant raises on appeal. Rather, this section inexplicably states the trial court erred by failing to grant Appellant's motion to suppress evidence. The record suggests this misstatement was merely an inadvertent error by counsel.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Maria L. Dantos, we conclude Appellant's first and second issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of those questions. ( See Trial Court Opinion, filed November 29, 2016, at 11-12; 2-6) (finding: (1) first DUI offense is ungraded misdemeanor punishable by up to six months' imprisonment; when first offender refuses chemical testing, violation remains ungraded misdemeanor punishable by up to six months' imprisonment; right to jury trial exists only when defendant faces charge which, alone, could lead to imprisonment greater than six months; thus, Appellant's argument is legally flawed; (2) Commonwealth presented evidence that on August 22, 2015, at approximately 4:30 a.m., police received dispatch to accident in McDonald's parking lot; Officer Beiner observed male, later identified as Appellant, standing outside of driver's side door of pick-up truck which had damage to front and side fenders; Officer Beiner noticed another vehicle approximately 20 feet away had damage to it as well as nearby telephone pole; Appellant's vehicle had yellow paint on it which appeared to be from utility pole; Appellant denied knowledge of accident; Appellant said his wife had been driving and was in McDonald's using restroom; Officer Beiner went inside but no patrons were there as restaurant was closed except for employees; Officer Beiner noticed strong odor of alcohol on Appellant's breath, and that Appellant had glassy and bloodshot eyes and was swaying; Appellant also kept repeating himself; Appellant refused to perform sobriety tests or consent to blood draw; court found completely incredible Appellant's wife's testimony that she was driver of vehicle, struck utility pole, went to use McDonald's restroom but because restaurant was closed she walked to Walgreen's to use restroom there, and it took her one hour to find bathroom and return to accident scene; Appellant's license was under suspension on date in question; evidence was sufficient to sustain Appellant's convictions). Therefore, with respect to Appellant's first and second issues on appeal, we affirm on the basis of the trial court's opinion.
Appellant was charged with, inter alia, two counts of first-offense DUI under Section 3802(a)(1): count 1-DUI (general impairment) and count 2-DUI (general impairment with refusal). Appellant was not facing any charges subject to more than six months' imprisonment. The court's statement, therefore, is limited to the context of Appellant's demand for a jury trial. We acknowledge the recent cases of Birchfield v. North Dakota , ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) and Commonwealth v. Giron , 155 A.3d 635 (Pa.Super. 2017) (holding that, pursuant to Birchfield , defendant who refuses to submit to warrantless blood draw cannot be subject to enhanced penalties under 75 Pa.C.S.A. §§ 3803-3804; affirming appellant's DUI conviction but vacating and remanding for resentencing). Significantly, the record in the present case makes clear the court imposed no penalty at all on Appellant's conviction for count 2-DUI (general impairment with refusal). In fact, the court sentenced Appellant on only count 1-DUI (general impairment), plus fines/costs for the summary offenses. Therefore, this case did not involve an illegal sentence under Birchfield or Giron. Further, Appellant did not raise any Birchfield challenge to the validity of his conviction for count 2-DUI (general impairment with refusal). So, absent an illegal sentence on that conviction, Appellant is not entitled to relief on the grounds asserted.
Regarding Appellant's third issue, preliminarily, a challenge to the weight of the evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607. The Rule provides:
Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
Pa.R.Crim.P. 607(A)(1)-(3). "As noted in the comment to Rule 607, the purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Commonwealth v. Gillard , 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal denied, 581 Pa. 672, 863 A.2d 1143 (2004). An appellant's failure to avail himself of any of the prescribed methods for presenting a weight of the evidence issue to the trial court constitutes waiver of that claim, even if the trial court responds to the claim in its Rule 1925(a) opinion. Commonwealth v. Burkett , 830 A.2d 1034 (Pa.Super. 2003). See also Pa.R.Crim.P. 720(A)(1) (explaining written post-sentence motion shall be filed no later than 10 days after imposition of sentence).(3) in a post-sentence motion.
Instantly, the court sentenced Appellant on October 10, 2016. Appellant did not raise a challenge to the weight of the evidence prior to sentencing or file a post-sentence motion within ten days of the imposition of his sentence. The trial court's discussion of Appellant's weight claim in its Rule 1925(a) opinion does not cure this defect. See Burkett , supra. Thus, Appellant's weight claim is waived. See Pa.R.Crim.P. 607; 720; Gillard , supra ; Burkett , supra. Moreover, even if Appellant had preserved his weight claim, we would affirm for the reasons stated in the trial court's opinion. ( See Trial Court Opinion at 2-7.) Accordingly, we affirm.
The full citation for Commonwealth v. Lyons ( see Trial Court Opinion at 7), is 833 A.2d 245 (Pa.Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005). --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/2017
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