J-S65029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOANNE GIAMPA,
Appellant No. 653 EDA 2014
Appeal from the Judgment of Sentence of October 7, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007475-2012
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 30, 2014
Appellant, Joanne Giampa, appeals from the judgment of sentence
entered on October 7, 2013. We affirm in part, vacate in part, and remand.
The trial court summarized the factual background of this case as
follows:
On May 20, 2012, at approximately 2:00 a.m., John Schlossman
[(“Schlossman”)] . . . heard a terrible crash outside of his open
window. Upon hearing the crash[,] Schlossman immediately
called 911. Both the police and ambulance responded to the
scene.
At trial, Schlossman testified that a white Honda had hit the
maple tree located on his property with such a force that the
vehicle bounced back into the road. He also noted that his
mailbox was completely destroyed. Although Schlossman didn’t
see the driver of the vehicle that night, a couple days after the
accident Appellant came to his home wanting to see the damage
she caused and to apologize.
* Retired Senior Judge assigned to the Superior Court.
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Next to testify was Pennsylvania State Trooper Joseph Miller of
the Skippack Barracks who responded to the scene of the one-
vehicle crash. He observed a white SUV in the roadway,
which[,] based on the tire marks[,] he determined [had] struck
the tree on [Schlossman’s] property. He also observed Appellant
being placed in the ambulance. [Trooper Miller] went to the rear
of the ambulance where Appellant was seated on a stretcher.
Appellant told Trooper Miller that she was on her way home from
her place of employment at Cloud 9. Appellant denied any
memory of the crash. She did admit to [Trooper Miller] that she
had had four beers earlier that night, but it had been hours since
her last drink. Trooper Miller observed during his conversation
with Appellant that her actions were slow and lethargic, her eyes
were bloodshot, she was swaying[,] and that there was a strong
presence of alcohol coming from her person and her breath.
Trooper Miller did not have Appellant complete any field sobriety
tests because she was complaining of neck and back pain and he
did not want to put her in danger of further injury. Having
determined that Appellant appeared impaired, [Trooper Miller]
followed the ambulance to Lehigh Valley Hospital. At the
hospital emergency room, Trooper Miller read to Appellant her
warnings and implied consent. Appellant refused testing.
[Trooper Miller] ultimately arrested Appellant for DUI. . . .
The defense presented the testimony of Daniel Lagonegro, the
man who helped remove Appellant from her car after the crash.
He testified that he didn’t notice any signs of intoxication.
Appellant also testified on her own behalf. Although Appellant
denied having had any beer as [Trooper Miller] suggested, she
did admit on direct examination and on cross-examination to
having had three shots of vodka immediately before she left
Cloud 9. Appellant admitted that right after she had those shots
she got behind the wheel. Appellant explained that she did the
shots and left work because she had “been very careful since her
very first DUI, and she did them just to calm down and relax
when she got home. She knew she only had a seven minute
ride home.” Appellant blamed the crash on her swerving to
avoid a deer that had jumped out into the roadway. Other than
that fact, Appellant remembered nothing more about the crash.
Appellant further testified that a lot of what happened after the
accident was fuzzy, because she was distressed, confused[,] and
in pain.
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Trial Court Opinion, 3/24/14, at 1-4 (internal alterations, citations, and
honorifics omitted).
The procedural history of this case is as follows. On November 21,
2012, Appellant was charged via criminal information with driving under the
influence – incapable of safe driving.1 On July 31, 2013, Appellant was
found guilty at a bench trial. On October 7, 2013, the trial court sentenced
Appellant to 90 days to 60 months’ imprisonment. On October 18, 2013,
Appellant filed an untimely post-sentence motion. On February 25, 2014,
Appellant filed a notice of appeal.2 On April 24, 2014, this Court issued a
rule to show cause why this appeal should not be quashed.3 On April 30,
2014, the trial court denied Appellant’s post-sentence motion.
Appellant presents two issues for our review:
1. Where a police officer’s opinion is based on a crash, an odor of
alcohol, bloodshot eyes, and an admission of drinking—did the
Commonwealth present sufficient evidence [Appellant] could not
drive safely?
2. Is the trial court’s sentence here illegal?
1
75 Pa.C.S.A. § 3802(a)(1).
2
On February 25, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On March 14, 2014, Appellant filed her concise
statement. On March 24, 2014, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.
3
Although this Court’s rule to show cause used the word dismissed, it is
evident that this Court meant quashed.
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Appellant’s Brief at 5 (footnote omitted).
The Commonwealth and the trial court both contend that this appeal is
untimely. “Because the timeliness of an appeal implicates our jurisdiction,
we cannot address the merits of the other issues raised by [Appellant]
before determining whether the appeal was timely filed.” Coulter v.
Ramsden, 94 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Whether an appeal is untimely presents a pure question of law; therefore,
our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Williams, 2014 WL 3672870, *2 (Pa. July 21, 2014)
(citation omitted).
“In a criminal case in which no post-sentence motion has been filed,
the notice of appeal shall be filed within 30 days of the imposition of the
judgment of sentence in open court.” Pa.R.A.P. 903(c)(3). If a timely post-
sentence motion is filed, the notice of appeal must be filed within 30 days of
the order disposing of the post-sentence motion. Pa.R.Crim.P. 720(A)(2).
An untimely post-sentence motion does not toll the 30-day appeal period.
Commonwealth v. Trinidad, 96 A.3d 1031, 1034 (Pa. Super. 2014)
(citation omitted). A post-sentence motion is timely if filed within ten days
of the judgment of sentence. Pa.R.Crim.P. 720(A)(1).
In this case, Appellant’s judgment of sentence was imposed on
October 7, 2013. Therefore, the deadline for filing a timely post-sentence
motion was October 17, 2013. As Appellant’s post-sentence motion was
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filed on October 18, 2013, it was untimely and did not toll the 30-day appeal
period. Therefore, under Rule 903, Appellant had until November 6, 2013 to
file her notice of appeal. As Appellant’s notice of appeal was filed on
February 25, 2014, it appears on its face to be untimely.
Appellant argues, however, that we have jurisdiction over this appeal
as there was a breakdown in the judicial process. Specifically, she contends
that the trial court erred by not informing her that she had ten days to file a
post-sentence motion and that her notice of appeal had to be filed within 30
days. As this Court has explained:
Generally, an appellate court cannot extend the time for filing an
appeal. Nonetheless, this general rule does not affect the power
of the courts to grant relief in the case of fraud or breakdown in
the processes of the court. Thus, before our Court may quash
the instant appeal, we must determine whether an
administrative breakdown in the court system excuses the
untimely filing of the notice of appeal.
The courts of this Commonwealth have held that a court
breakdown occurred in instances where the trial court, at the
time of sentencing, either failed to advise Appellant of h[er]
post-sentence and appellate rights or misadvised h[er].
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007),
appeal denied, 960 A.2d 838 (Pa. 2008).
In this case, the trial court failed to notify Appellant, at the time of
sentencing, of her post-sentence and appellate rights. See generally N.T.,
10/7/13. This was a breakdown in the judicial process. Accordingly, we are
constrained to conclude that, despite the untimely filing of Appellant’s notice
of appeal, we have jurisdiction to consider the merits of this appeal.
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Having determined that we have jurisdiction over this appeal, we
proceed to consider the merits of the issues raised by Appellant. She first
contends that the evidence was insufficient to find her guilty of driving under
the influence. “Whether sufficient evidence exists to support the verdict is a
question of law; thus, our standard of review is de novo and our scope of
review is plenary.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
2014) (citation omitted). In reviewing a sufficiency of the evidence claim,
we must determine “whether viewing all the evidence admitted at trial in the
light most favorable to the [Commonwealth], there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.
Super. 2014) (citation omitted). “Additionally, the evidence at trial need not
preclude every possibility of innocence. . . . [T]he fact-finder is free to
believe all, part[,] or none of the evidence.” Commonwealth v. Trinidad,
90 A.3d 721, 728 (Pa. Super. 2014) (citation omitted).
In order to be found guilty of driving under the influence- incapable of
safe driving, “the Commonwealth [must] prove the following elements: the
accused was driving, operating, or in actual physical control of the
movement of a vehicle during the time when he or she was rendered
incapable of safely doing so due to the consumption of alcohol.”
Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (internal
quotation marks and citation omitted). There is no dispute that Appellant
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was operating her vehicle. As to the second element, we have explained
that,
to establish that one is incapable of safe driving 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 prudently to changing circumstances
and conditions.
Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006) (internal
alteration, ellipsis, and citation omitted).
When viewed in the light most favorable to the Commonwealth, the
evidence was sufficient to sustain the Commonwealth’s burden of proof.
Appellant conceded that she had several shots prior to leaving work. N.T.,
7/31/13, at 57. Trooper Miller testified that there was a “strong presence of
alcohol coming from her person and her breath[.]” Id. at 20. Evidence that
there was a strong odor of alcohol emanating from Appellant may be used to
satisfy the Commonwealth’s burden of proof in a general impairment case.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). Trooper Miller
likewise testified that Appellant was swaying. N.T., 7/31/13, at 20. Again,
this too is evidence that can be used to prove general impairment. See
Schindler v. Commw., Dep't of Transp., Bureau of Driver Licensing,
976 A.2d 601, 604 (Pa. Cmwlth. 2009), appeal denied, 983 A.2d 1250 (Pa.
2009) (citation omitted).
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Trooper Miller also testified that Appellant had bloodshot eyes. N.T.,
7/31/13, at 20. This is also among the types of evidence that the
Commonwealth may introduce to satisfy its burden of proof in a general
impairment case. Segida, 985 A.2d at 879. Trooper Miller testified that
Appellant’s “actions were slow[ and] lethargic.” N.T., 7/31/13, at 20. Such
evidence may be used to satisfy the Commonwealth’s burden of proof in a
general impairment case. See Commonwealth v. DiPanfilo, 993 A.2d
1262, 1268 (Pa. Super. 2010), appeal denied, 40 A.3d 120 (Pa. 2012).
Lastly, the record shows that Appellant drove off the road and into a tree.
Thus, when taken as a whole, and viewed in the light most favorable to the
Commonwealth, there was sufficient evidence that Appellant was incapable
of safe driving due to her consumption of alcohol.
Appellant raises several fact-based contentions in support of her
sufficiency claim. Specifically, Appellant attributes her physical condition
following the accident to shock, points to contradictory evidence showing the
absence of slurred speech and the odor of alcohol, and claims that the
presence of a deer on the roadway caused the accident. Appellant
essentially asks us to reweigh the evidence introduced at trial. Since our
standard of review forbids this approach to appellate review, Appellant is not
entitled to relief on her sufficiency challenge.
Next, Appellant contends that her sentence is illegal. Both the trial
court and the Commonwealth concede that Appellant’s sentence is illegal.
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See Trial Court Opinion, 3/24/14, at 15-17; Commonwealth’s Brief at 21.
“A claim that the trial court imposed an illegal sentence . . . is a question of
law.” Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014),
appeal denied, 172 WAL 2014 (Pa. Sept. 17, 2014) (internal quotation
marks and citations omitted). Therefore, our standard of review is de novo
and our scope of review is plenary.
In this case, Appellant was sentenced to 90 days to 60 months’
imprisonment for her second DUI with refusal to submit to chemical testing.
In Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), this Court
held that the statutory maximum for a second DUI with refusal to submit to
chemical testing is six months’ imprisonment.4 Id. at 758. Thus, we
concluded that the defendant’s sentence of 90 days to 60 months’
imprisonment was illegal. Id. As the circumstances in this case are
identical to those in Musau, we likewise conclude that Appellant’s sentence
is illegal. We therefore vacate her judgment of sentence and remand for
resentencing.
Rule to show cause discharged. Judgment of sentence affirmed in part
and vacated in part. Case remanded. Jurisdiction relinquished.
4
On September 9, 2014, our Supreme Court heard oral argument in a case
to determine whether this Court’s decision in Musau was correct. See
Commonwealth v. Mendez, 32 EAP 2014.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2014
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Com. v. Giampa, J.
Combined Opinion