J-A01039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN D. LITTLE,
Appellant No. 713 WDA 2014
Appeal from the Judgment of Sentence entered January 10, 2014,
in the Court of Common Pleas of Warren County,
Criminal Division, at No(s): CP-62-CR-0000512-2012
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 03, 2015
Shawn D. Little (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of two counts of driving under the
influence of alcohol, one count of operating a vehicle without headlights, and
two counts of endangering the welfare of children.1 We affirm in part and
vacate in part.
The pertinent facts and procedural history are as follows: On August
26, 2012, at approximately 8:15 p.m., Eva Stroup of Conewango Township,
Pennsylvania, telephoned the Conewango Township Police Department to
inform them that she believed her ex-husband, who had physical custody of
the couple’s two children, was under the influence of alcohol in violation of a
____________________________________________
1
75 Pa.C.S.A. § 3802(a)(1), 4304(a) and 18 Pa.C.S.A 4304.
J-A01039-15
custody order. N.T., 12/12/13, at 31. Officer Charles Anderson of the
Conewango Township Police Department advised Ms. Stroup that if she
believed Appellant was violating the terms of the custody order, she would
have to seek relief in court. Id. at 33. Approximately half an hour later,
Officer Anderson was patrolling in Conewango Township when, at
approximately 8:53 p.m., he observed Appellant’s vehicle with one of its
driver’s side headlamps not illuminated. Affidavit of Probable Cause, 9/5/12.
The officer conducted a traffic stop and upon requesting Appellant’s
identification, observed that Appellant had a limited driver’s license
prohibiting him from operating any vehicle that was not equipped with an
ignition interlock device, and detected an odor of alcohol emanating from
Appellant’s breath and noted that his eyes were watery. Id. Officer
Anderson administered a field sobriety test, after which he arrested
Appellant and transported him to Warren General Hospital for a blood
alcohol test. Id. at 39. Appellant refused to submit to chemical testing and
was transported to the police station, where he was charged with the
aforementioned crimes.
A jury trial commenced on December 12, 2013, at the conclusion of
which the jury rendered its guilty verdicts. Following a hearing on January
10, 2014, the trial court sentenced Appellant to an aggregate term of
imprisonment of 49½ to 123 months. The trial court additionally ordered
that Appellant have no contact with his two children. Appellant filed a timely
post-sentence motion, which the trial court denied on March 21, 2014. This
-2-
J-A01039-15
appeal followed. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.2
Appellant presents the following issues for our review:
1. WHETHER THE TRIAL COURT ERRED IN ENTERING JUDGMENT
OF SENTENCE UPON GUILTY VERDICTS FOR DRIVING UNDER
THE INFLUENCE OF ALCOHOL WHEN INSUFFICIENT EVIDENCE
WAS PRESENTED TO ESTABLISH THAT [APPELLANT] WAS
INCAPABLE OF SAFELY DRIVING A MOTOR VEHICLE?
2. WHETHER THE TRIAL COURT ERRED IN ENTERING JUDGMENT
OF SENTENCE, AND DENYING [APPELLANT’S] POST-SENTENCE
MOTION, UPON GUILTY VERDICTS FOR ENDANGERING THE
WELFARE OF CHILDREN WHEN INSUFFICIENT EVIDENCE WAS
____________________________________________
2
On July 14, 2014, Appellant filed with this Court a “Motion for Remand
and/or for Consideration of After-Discovered Evidence.” In his motion,
Appellant asserts that between October 2008 and May 2014, all blood
alcohol tests in Warren County were subject to faulty testing procedures
because the laboratory failed to apply the serum-to-whole blood ratio to the
result, which resulted in numerous false positive tests and DUI arrests. See
Commonwealth v. Brugger, 88 A.3d 1026, 1029 (Pa. Super. 2014)
(“where blood alcohol testing is performed on only a portion of whole blood,
such as plasma, serum, or a supernatant sample, it requires conversion to
establish the correlative whole blood test results.”). Appellant argues that
the arresting officer’s determination that Appellant was intoxicated was
somehow based on information garnered from the faulty blood tests, and
was therefore tainted. Appellant requests remand for the trial court to
consider this evidence.
In his motion for remand, Appellant offers no support other than his
bald assertion that all of the blood test results in Warren County were faulty.
More importantly, we fail to see how faulty blood alcohol tests would have
impacted this case, given that Appellant refused to submit to chemical
testing. We are unpersuaded by Appellant’s assertion that the arresting
officer’s determination that Appellant was intoxicated was somehow tainted
by unverified, unrelated faulty lab testing procedures in Warren County.
Accordingly, we deny Appellant’s motion for remand and/or consideration of
after discovered evidence.
-3-
J-A01039-15
PRESENTED TO ESTABLISH THAT [APPELLANT] KNOWINGLY
ENDANGERED THE WELFARE OF HIS CHILDREN?
3. WHETHER THE TRIAL COURT ERRED IN IMPOSING A CONDITION
ON [APPELLANT’S] SENTENCE THAT HE NOT BE PERMITTED TO
HAVE CONTACT WITH HIS CHILDREN WHEN THE COURT DOES
NOT POSSESS STATUTORY AUTHORITY TO IMPOSE PAROLE
CONDITIONS ON [APPELLANT’S] SENTENCE TO A MAXIMUM OF
TWO OR MORE YEARS AND/OR WHEN IT REFUSED TO MODIFY
[APPELLANT’S] SENTENCE SUCH THAT HE WOULD BE ABLE TO
HAVE SUPERVISED OR WRITTEN CONTACT WITH HIS CHILDREN
WHEN THE INTEREST OF PROTECTING THE ALLEGED VICTIM IS
ADEQUATELY SERVED BY NOT ALLOWING UNSUPERVISED
CONTACT WITH THE MINOR CHILDREN AND WHEN SUCH
CONDITION IS UNDULY RESTRICTIVE?
Appellant’s Brief at 5.
In his first issue, Appellant argues that the evidence was insufficient to
support his convictions for driving under the influence under 75 Pa.C.S.A. §
3802(a)(1). Appellant’s Brief at 13-15.
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are sufficient to establish
all elements of the offense beyond a reasonable doubt. We may
not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of
the evidence, the fact-finder is free to believe all, part or none of
the evidence. For purposes of our review under these principles,
we must review the entire record and consider all of the
evidence introduced.
Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).
-4-
J-A01039-15
Appellant claims that Officer Anderson failed to provide sufficient
testimony upon which the jury could have concluded that Appellant’s ability
to safely drive was impaired. Appellant’s Brief at 13-15. Specifically,
Appellant argues that at trial, Officer Anderson testified that Appellant
passed the one-leg stand test while standing on his left leg, that the officer
did not recall that Appellant slurred his words when he spoke, and that the
officer testified that Appellant did not stagger or stumble as he walked, and
moreover, he did not observe Appellant commit any moving violations such
as swerving or crossing the lines on the roadway. Id. Accordingly,
Appellant argues that the evidence was insufficient to support his convictions
for driving under the influence-general impairment. We disagree.
75 Pa.C.S.A. § 3802 provides:
(a) General impairment.--
(1) An 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.A. § 3802
“In order to be found guilty of DUI—general impairment, an
individual's alcohol consumption must substantially impair his or her ability
to safely operate a vehicle. Evidence of erratic driving is not a necessary
precursor to a finding of guilt under the relevant statute. The
Commonwealth may prove that a person is incapable of safe driving through
-5-
J-A01039-15
the failure of a field sobriety test.” Commonwealth v. Mobley, 14 A.3d
887, 890 (Pa. Super. 2011) (citations omitted).
[S]ubsection 3802(a)(1) is an ‘at the time of driving’
offense, requiring that the Commonwealth 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.
With respect to the type, quantum, and quality of evidence
required to prove a general impairment violation under Section
3802(a)(1), ... Section 3802(a)(1) ... is a general provision and
provides no specific restraint upon the Commonwealth 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. ... The types of evidence that the
Commonwealth may proffer in a subsection 3802(a)(1)
prosecution include but are not limited to, the following: the
offender's actions and behavior, including manner of driving and
ability to pass field sobriety tests; demeanor, including toward
the investigating officer; physical appearance, particularly
bloodshot eyes and other physical signs of intoxication; odor of
alcohol, and slurred speech. Blood alcohol level may be added
to this list, although it is not necessary and the two hour time
limit for measuring blood alcohol level does not apply. Blood
alcohol level is admissible in a subsection 3801(a)(1) case only
insofar as it is relevant to and probative of the accused's ability
to drive safely at the time he or she was driving. The weight to
be assigned these various types of evidence presents a question
for the fact-finder, who may rely on his or her experience,
common sense, and/or expert testimony. Regardless of the type
of evidence that the Commonwealth proffers to support its case,
the focus of subsection 3802(a)(1) remains on the inability of
the individual to drive safely due to consumption of alcohol-not
on a particular blood alcohol level.
Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013) quoting
Commonwealth v. Segida, 114–116, 985 A.2d 871, 879 (Pa. 2009).
-6-
J-A01039-15
Here, in finding the evidence sufficient to support Appellant’s
convictions, the trial court explained:
[Appellant’s] own testimony at the trial indicated he had
been drinking at least two “Busch Pounders” on the day in
question. [Appellant] also admitted that he refused blood
alcohol content (BAC) testing at the hospital in part because he
knew that drinking alcohol was a violation of [his] custody
order. ... Based on [Appellant’s] admissions alone, the jury was
capable of finding [Appellant] in violation of the DUI statute;
however there was additional testimony at trial that [Appellant
and Ms. Stroup] had spoken via telephone earlier in the day and
that [Appellant] seemed to be slurring his words during the
conversation as if he had been drinking. The arresting officer in
the case, Patrolman Anderson, testified that when he initiated
the traffic stop and first encountered [Appellant], he could smell
an odor of alcohol coming from [Appellant’s] breath and could
see that [Appellant’s] eyes were watering, two indicia of
intoxication. Patrolman Anderson explained that he proceeded
to administer standard field sobriety tests during which
[Appellant] exhibited additional indicia of intoxication. Finally,
Patrolman Anderson testified that it was his opinion based on
his education, experience and training that [Appellant] was
impaired to the extent it rendered him incapable of safe driving.
Additionally, Patrolman Anderson testified that [Appellant]
refused BAC testing at the hospital. In fact, according to
Patrolman Anderson’s testimony, while [Appellant] was being
processed at the police station, [Appellant] admitted to drinking
three Busch beers that day. Also, [Appellant] lied initially to
Patrolman Anderson and indicated that he was not driving the
vehicle. Based on these facts, the jury had ample evidence to
convict [Appellant] of DUI – General Impairment, and DUI –
Refusal, Count 1 and Count 2, respectively.
Trial Court Opinion, 5/30/14, at 3-4 (citations to notes of testimony
omitted).
We agree with the trial court that the record evidence was sufficient
for a jury to believe that Appellant had consumed a sufficient amount of
alcohol to render him incapable of safe driving pursuant to 75 Pa.C.S.A. §
-7-
J-A01039-15
3802(a)(1). Although Appellant argues that the evidence was insufficient to
demonstrate that his ability to drive safely was impaired, this assertion is
belied by the record. Officer Anderson testified that when he effectuated the
traffic stop and approached Appellant, he “could smell an odor of alcohol,
intoxicating beverage coming from the vehicle,” which prompted him to ask
Appellant to submit to a series of field sobriety tests. N.T., 12/12/13, at 35.
Officer Anderson testified that during the walk and turn balancing test,
Appellant “stepp[ed] off the line between steps, missed heel-to-toe between
steps” and although instructed to keep his arms to the side, “he did use his
arms to balance his walking portion of the test.” Id. at 37. The officer
testified that while the balancing test was “not essentially a pass or fail” test,
but was intended to present some clues as to Appellant’s state of
intoxication, “if it had to be rated pass or fail, [Appellant] would have failed
that portion.” Id.
Officer Anderson next testified that he had Appellant perform the “one
leg stand test”, where he instructed Appellant to stand on one leg, and lift
the other leg six inches off the ground and point that foot out while
counting. Id. at 37-38. Officer Anderson testified that Appellant stood on
his right leg but “put his [left] foot down on count one, brought his foot back
up and was hopping around.” Id. Appellant then informed the officer that
he had some problems with his right leg, and asked to perform the test
while standing on his left leg, after which “he did complete the test while
-8-
J-A01039-15
using his right leg standing on his left leg”, although “he did not have the leg
fully extended which is part of the instruction.” Id. Officer Anderson
additionally reiterated that Appellant had “watery eyes” and an odor of
alcohol emanating from him, and that Appellant admitted to drinking three
beers. Id. at 38-40. Officer Anderson testified that in his experience, he
believed Appellant was impaired to the extent that rendered him incapable
of safe driving. Id. at 39. Upon review, we find no error in the trial court’s
determination that the evidence, when viewed in the light most favorable to
the Commonwealth as verdict-winner, was sufficient to sustain Appellant’s
convictions for driving under the influence.
Appellant next argues that the evidence was insufficient to sustain his
convictions for endangering the welfare of children pursuant to 18 Pa.C.S.A.
§ 4304, which provides:
A parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person that
employs or supervises such a person, commits an offense if he
knowingly endangers the welfare of the child by violating a duty
of care, protection or support.
Our courts have explained that “statutes pertaining to juveniles such
as this one are basically protective in nature and thus are necessarily drawn
to cover a broad range of conduct in order to safeguard the welfare and
security of our children. Whether particular conduct falls within the purview
of the statute is to be determined within the context of the common sense of
-9-
J-A01039-15
the community.” Commonwealth v. Retkofsky, 860 A.2d 1098, 1099 (Pa.
Super. 2004) (citations and internal quotations omitted).
The accused must act “knowingly” to be convicted of
endangering the welfare of a child. 18 Pa.C.S.A. § 4304. We
have employed a three-prong standard to determine whether
the Commonwealth's evidence is sufficient to prove this intent
element: 1) the accused must be aware of his or her duty to
protect the child; 2) the accused must be “aware that the child
is in circumstances that could threaten the child's physical or
psychological welfare;” and 3) the accused either must have
failed to act or must have taken “action so lame or meager that
such actions cannot reasonably be expected to protect the
child's welfare.”
Retkofsky, 860 A.2d at 1099-110.
Here, Appellant argues that the evidence was insufficient to sustain his
convictions for endangering the welfare of his children because he did not
believe that he was intoxicated, and thus did not “knowingly” endanger his
children’s welfare. Appellant’s Brief at 15-18. Upon review, we agree with
the trial court that the Commonwealth presented sufficient evidence to
sustain Appellant’s convictions. As the trial court explained:
[Appellant] had his two children, ages five (5) years old and
three (3) years old in the back seat of his vehicle at the time he
was arrested for DUI. Patrolman Anderson testified that there
was no question in his mind that the children were in
[Appellant’s] vehicle while [Appellant] was operating it. Again,
[Appellant] had admitted drinking on the day in question and
ultimately admitted driving the car as well. Additionally,
[Appellant] was aware of a custody order which prohibited him
from drinking alcohol while he had custody of the children.
[Appellant] did proffer an explanation for his watery eyes to the
jury when he explained that he had been working on a car’s
brakes earlier in the day and rust from the car had fallen in his
eyes during the repair. Ultimately, the jury found [Appellant]
- 10 -
J-A01039-15
had been driving under the influence with his two children in the
backseat of this car. [Appellant] also initially lied to the
investigating officer about the fact that he was driving the
vehicle. [Appellant] also testified that he was unsure if the
brakes on the vehicle had been completely repaired. Given
these facts, it was reasonable for the jury to conclude
[Appellant] knew he was acting wrongly. When [Appellant]
drove a vehicle under the influence of alcohol with his five-year-
old and three-year-old in the backseat of the vehicle, he was a
parent supervising the welfare of the children in his backseat and
yet knowingly violating a duty of care, protection or support. It
is of paramount importance to protect the safety and welfare of
children and common sense societal standards would dictate that
drinking and driving with two children in the backseat is a
violation of that duty to protect. Therefore, the jury had ample
evidence to convict [Appellant] of Counts 5 and 6, Endangering
the Welfare of Children.
Trial Court Opinion, 5/30/14, at 5 (citations to notes of testimony omitted).
We find no error in the trial court’s determination that the evidence
was sufficient to demonstrate that Appellant knew that he had consumed
alcohol, and nevertheless proceeded to drive his children. Although
Appellant argues that he did not “knowingly” endanger his children’s welfare
because he did not believe he was intoxicated, the testimony of Officer
Anderson indicated that Appellant, who admitted to drinking at least two or
three beers, and inter alia, drank those beers in violation of a custody order,
had in fact consumed enough alcohol to impair his ability to drive safely.
See Commonwealth v. Collington, 615 A.2d 769, 770 (Pa. Super. 1992)
(“The Commonwealth is not required to prove mens rea by direct
evidence[;] [f]requently such evidence is not available [and in] such cases,
the Commonwealth may rely on circumstantial evidence.”). Viewing
- 11 -
J-A01039-15
Appellant’s conduct and the circumstantial evidence “within the context of
the common sense of the community,” we conclude that the Commonwealth
presented sufficient evidence to demonstrate that Appellant knowingly
endangered the welfare of his children. Retkofsky, 860 A.2d at 1099.
In his third issue, Appellant argues that the trial court erred when it
imposed a condition on Appellant’s sentence precluding him from having any
contact with his children. Appellant’s Brief at 19-22; N.T., 1/10/14 at 16;
Trial Court Order, 1/10/14. Appellant asserts that the trial court lacked the
statutory authority to impose such a condition, and accordingly claims the
condition is illegal. Additionally, Appellant challenges the discretionary
aspects of his sentence, arguing that the sentencing provision precluding
him from having contact with his children was unduly harsh and restrictive.
Appellant’s Brief at 19-20.
Appellant argues that his sentence was illegal because the Court of
Common Pleas of Warren County lacked jurisdiction to impose a “no contact”
condition on a defendant sentenced to a maximum of two or more years of
imprisonment. Specifically, Appellant argues that in precluding him from
having contact with his children, the trial court effectively instituted a
condition on his potential future parole, which the trial court lacked authority
to impose, and that such a condition was therefore illegal.
We agree with Appellant that to the extent the trial court order
precluding him from having contact with his children would constitute a
- 12 -
J-A01039-15
condition of parole, the trial court lacked the authority to impose such a
condition.
Under Pennsylvania law, the authority to parole convicted
offenders is split between the common pleas courts and the
Pennsylvania Board of Probation and Parole (Parole Board).
When an offender is sentenced to a maximum term of
imprisonment of less than two years, the common pleas court
retains authority to grant and revoke parole; when the
maximum term is two years or more, authority to grant and
revoke parole is vested in the Parole Board. The common pleas
court retains authority over parole matters relating to offenders
sentenced to maximum terms of less than two years even when
the offender is confined in a state rather than county correctional
facility.
Commonwealth v. McDermott, 547 A.2d 1236, 1239-1240 (Pa. Super.
1988) (citations omitted).
Because the trial court sentenced Appellant to a maximum term of
incarceration of two or more years, if Appellant at any time is granted
parole, he would be under the exclusive supervision of the Pennsylvania
Board of Probation and Parole and not the Court of Common Pleas. 61 P.S.
§ 331.17; Commonwealth v. Mears, 972 A.2d 1210, 1212 (Pa. Super.
2009) (holding that the Pennsylvania Board of Probation and Parole has
exclusive authority to determine parole when the offender is sentenced to a
maximum term of imprisonment of two or more years, and the trial court
was without jurisdiction to impose conditions on the appellant’s state
parole). Accordingly, any condition of parole will be under the jurisdiction of
the Pennsylvania Parole Board and the trial court is without jurisdiction to
impose conditions on that parole. To the extent the trial court purported to
- 13 -
J-A01039-15
impose conditions on Appellant's state parole, that portion of Appellant's
sentence is vacated. See Commonwealth v. Coulverson, 34 A.3d 135
(Pa. Super. 2011) (trial court exceeded its authority when it imposed on the
defendant a “no contact” restriction with any of the victims, their families, or
friends if defendant were ever released on parole; Board of Pardon and
Probation had exclusive authority to determine parole of offender sentenced
to a maximum term of imprisonment of two or more years, and thus any
condition the sentencing court purported to impose on defendant's state
parole was advisory only).
Appellant additionally argues that the trial court’s "no contact" order
constituted an abuse of its sentencing discretion. Appellant’s Brief at 20-22.
Appellant in essence argues that the trial court failed to provide adequate
reasons for its directive that he have no contact with his children, and
asserts that the “no contact” provision was unduly restrictive and not
reasonably related to Appellant’s rehabilitation or the protection of the
victims or the public.3
____________________________________________
3
Appellant has preserved his challenge to the discretionary aspects of his
sentence by raising his claim in a post-sentence motion and filing a timely
notice of appeal. Although Appellant failed to set forth in his brief a concise
statement of reasons relied upon for the allowance of his appeal pursuant to
Pa.R.A.P. 2119(f), the Commonwealth did not object to the omission. See
Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010) (where
the Commonwealth has not objected to the absence of a Pa.R.A.P. 2119(f)
statement and a substantial question is obvious from the appellant’s brief,
we will not find waiver and will proceed to an examination of the merits).
(Footnote Continued Next Page)
- 14 -
J-A01039-15
“The matter of sentencing is vested within the sound discretion of the
trial court; we only reverse the court's determination upon an abuse of
discretion. To demonstrate that the trial court has abused its discretion, the
appellant must establish, by reference to the record, that the sentencing
court ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision. Moreover, 42 Pa.C.S.A. § 9721(b) provides that the trial court
must disclose, on the record, its reasons for imposing the sentence.”
Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004)
(citations and internal quotations omitted).
Upon review of the record, we agree with Appellant that the trial court
failed to place on the record adequate reasons for its decision to preclude
Appellant from having contact with his children during his incarceration. Our
review of the sentencing transcript reveals that, at the sentencing hearing,
after the trial court had already entered its sentence verbally on the record,
the Assistant District Attorney, in the final moments before the conclusion of
the hearing, requested that Appellant be precluded from having any contact
_______________________
(Footnote Continued)
Here, Appellant’s claim that the trial court failed to provide adequate
reasons on the record for the no contact provision of the sentence raises a
substantial question. See Commonwealth v. Fowler, 893 A.2d 758, 766
(Pa. Super. 2006) (“an allegation that the court failed to state adequate
reasons on the record for the sentence imposed presents a substantial
question”). We therefore address the merits of Appellant’s discretionary
claim.
- 15 -
J-A01039-15
with his children. N.T., 1/10/14, at 15. The trial court immediately agreed
to enter a no contact provision, without any explanation. Under these
circumstances, we agree with Appellant that the trial court failed to provide
adequate reasons on the record for its no contact provision as required by
42 Pa.C.S.A. § 9721(b). Moreover, while protection of the victims is a
consideration at sentencing, Appellant was convicted of endangering his
children by driving them while under the influence of alcohol; while
incarcerated, however, Appellant poses no such a threat to his children’s
welfare given that he will be confined in prison without access to alcohol or a
vehicle. In the absence of adequate reasons on the record for the trial
court’s imposition of a no contact provision, we conclude that the trial court
abused its discretion. Accordingly, we vacate that portion of the sentence
precluding Appellant from having contact with his children, and affirm the
remainder of the judgment of sentence.
Judgment of sentence vacated in part and affirmed in part. Motion
for Remand and/or for Consideration of After-Discovered Evidence denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
- 16 -