J-S28004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN JONES,
Appellant No. 2111 MDA 2014
Appeal from the Judgment of Sentence November 19, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001294-2014
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 15, 2015
Jonathan Jones appeals from the judgment of sentence of ninety days
to six months incarceration with a consecutive term of imprisonment of sixty
days. The trial court imposed the sentence after it convicted Appellant at a
nonjury trial of: 1) driving under the influence of alcohol (“DUI”)—general
impairment--incapable of operating a vehicle safely with chemical testing
refusal, 75 Pa.C.S. § 3801(a)(1); and 2) driving with a suspended license—
DUI related, 75 Pa.C.S. § 1543(b)(1). Appellate counsel has filed a petition
seeking to withdraw from representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), which govern a withdrawal from representation on
direct appeal. We grant the petition to withdraw and affirm.
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On June 9, 2014, Appellant was charged with one count of driving
under the influence of alcohol under 75 Pa.C.S. § 3802(a)(1) general
impairment. The complaint indicated that the crime was a first offense. The
complaint also contained three summary driving offenses. The affidavit of
probable cause outlined that the four charges were premised upon the
following.
On June 9, 2014, Pennsylvania State Trooper Donald Ament was
dispatched to the scene of a vehicular accident at 5032 Molly Pitcher
Highway South, Guilford Township. The crash was near the parking lot of
Cebco Village Mart, a convenience store and gasoline station. The trooper
saw a white GMC Sierra with a Maryland license plate located over an
embankment. No driver was in the truck, and there was a can of beer in the
front cup holder of the center console. Trooper Ament approached
Appellant, who was standing outside of the store. Appellant said he was not
operating the crashed vehicle, but two employees working at Cebco Village
Mart refuted those representations. Appellant had the keys to the Sierra in
his front pocket, smelled strongly of alcohol, and had bloodshot eyes. After
he refused to perform field sobriety tests, Appellant was transported to
Chambersburg Hospital to have his blood drawn for chemical testing.
Appellant was given the appropriate warnings, but he refused to allow his
blood to be drawn.
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Appellant was granted bail and failed to appear for his preliminary
hearing, which was held on July 8, 2014. At that proceeding, the charges
were amended to include a violation of 75 Pa.C.S. § 1543(b)(1)—driving
with a suspended license DUI-related. The complaint also was amended to
include a charge that Appellant was driving the truck without a required
interlock device, but that charge was subsequently withdrawn. See N.T.
Trial, 11/14/14, at 80. A bench warrant was issued for Appellant’s arrest on
July 15, 2014. Appellant was detained and the warrant was vacated.
The criminal information was filed on August 20, 2014, and contained
two counts. At count one, the Commonwealth alleged that Appellant
committed DUI under § 3801(a)(1) in that he was unable to safely operate
his vehicle due to ingestion of alcohol, and it also alleged that Appellant
refused to submit to chemical testing. The information contained no
allegation that the present offense was Appellant’s second one. The DUI is
delineated as an ungraded misdemeanor rather than a first-degree
misdemeanor. At count two of the information, the Commonwealth charged
Appellant with driving with a suspended license DUI-related. 75 Pa.C.S. §
1543(b)(1).
After a pre-trial conference, an order was entered setting this matter
to proceed to a nonjury trial on November 14, 2014. The Commonwealth’s
proof at that proceeding was as follows. Teresa Stahl testified that she was
employed by Cebco Village Mart, which was located on Molly Pitcher Highway
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in Guilford Township. She was working with Timothy Lombardi the evening
of June 8, 2014, in a shift that ended on June 9, 2014. It was raining. A
little after midnight on June 9, 2014, Ms. Stahl and Mr. Lombardi were
standing outside the front entrance of the store smoking cigarettes. Ms.
Stahl saw a vehicle travel down the highway and attempt to turn into the
Cebco Village Mart’s parking lot. The truck entirely missed the entrance, slid
sideways on the wet road, and traveled into a field next to the convenience
store. The truck was airborne before it “hit into like a little gully.” N.T.
Nonjury Trial, 11/14/14, at 7.
The Sierra had a single occupant, the driver, whom Ms. Stahl identified
at trial as Appellant. The eyewitness related that she actually observed
Appellant exit the driver’s side of the truck and that she knew that no one
else was in the vehicle. She explained that the interior light of the truck
came on when Appellant opened the door so she could view inside.
Appellant exited the truck and unsuccessfully attempted to push it toward
the gas pumps. Afterwards, Appellant started to walk toward the Cebco
Village Mart. As Appellant approached them, Mr. Lombardi and Ms. Stahl
went inside the store, and Mr. Lombardi telephoned the Pennsylvania State
Police. Appellant, who was staggering, entered the store and asked Ms.
Stahl and Mr. Lombardi to call for a tow truck. Mr. Lombardi falsely
informed Appellant that one already had been summoned and to wait
outside, and Appellant left the store.
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A few minutes later, Appellant came back inside and asked for a cup of
coffee, which Mr. Lombardi said he could have. Ms. Stahl reported that, in
her opinion, Appellant was intoxicated in that he had an unsteady gait,
slurred speech, and unstable coordination when obtaining his coffee. She
also opined, based upon her observations of his behavior, that Appellant was
incapable of safely operating a motor vehicle.
Mr. Lombardi testified consistently to Ms. Stahl. He identified
Appellant as the driver of the crashed truck. Mr. Lombardi relayed that he
was sure that Appellant was alone in the truck because the “dome light
came on, and there was no one else in the vehicle that I could see.” Id. at
22. Mr. Lombardi also saw Appellant exit the driver’s seat, attempt to push
the truck, and start to walk toward the store.
After Mr. Lombardi went inside and called the police, Appellant entered
the store and requested a tow truck. Mr. Lombardi represented to Appellant
that a tow truck was coming and told him to wait for it by his vehicle.
Appellant exited the store briefly, returned to obtain a cup of coffee, and
then left again. Appellant was waiting in the parking lot when police arrived.
Mr. Lombardi opined that Appellant exhibited the same behavior observed by
Ms. Stahl. Additionally, Mr. Lombardi testified that he was able to smell
alcohol on Appellant’s breath since he and Appellant were “within very close
proximity of each other.” Id. at 27. Mr. Lombardo also believed that
Appellant was too drunk to safely operate his truck.
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Trooper Ament testified as follows. Shortly after midnight on June 9,
2014, he received a report of a vehicular crash at the Cebco Village Mart and
went to investigate. He looked into the truck but, since no one was inside,
he walked to the entrance of convenience store, where Appellant was
standing. Even though Appellant denied driving the disabled vehicle, he
possessed the keys to the truck. Trooper Ament discovered the keys during
a pat down search necessitated by the fact that Appellant refused to remove
his hands from his pants pockets.
Trooper Ament also stated that Appellant smelled of alcohol, had
slurred speech and bloodshot eyes, and was staggering and stumbling.
Appellant would not perform field sobriety tests, was transported to a local
hospital to have his blood drawn, and, after being given the applicable
warnings, refused to have his blood tested. Trooper Ament opined that
Appellant was incapable of safely operating a vehicle due to his intoxicated
state. The Commonwealth introduced a certified copy of Appellant’s driving
record from Maryland. Appellant was suspended indefinitely from driving on
June 1, 1989, for driving while under the influence of alcohol and due to
numerous traffic violations.
Based on this evidence, the trial court found Appellant guilty of driving
under the influence of alcohol—incapable of safely driving with refusal to
give a blood sample for testing, and driving with a suspended license DUI-
related.
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Appellant was sentenced on November 19, 2014. The Commonwealth
indicated that the maximum sentence that could be imposed on the DUI was
six months imprisonment, and it requested a sentence of three to six
months imprisonment on the DUI followed by ninety days on the driving with
a suspended license charge. The court imposed a term of ninety days to six
months incarceration on the DUI with a consecutive term of imprisonment of
sixty days on the driving with a suspended license. Appellant filed a post-
sentence motion raising one contention, which was that he was entitled to
ten more days credit for time served. The court entered an order modifying
the award of credit for time served to reflect the correct calculation. This
appeal followed.
As noted, counsel has filed a petition to withdraw. Before we address
the questions raised on appeal, we first must resolve appellate counsel’s
request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa.Super. 2013) (en banc). There are procedural and briefing requirements
imposed upon an attorney who seeks to withdraw on appeal. The procedural
mandates are that counsel must
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.
Id. at 1032 (citation omitted).
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Herein, counsel filed a petition to withdraw. Appended thereto was a
copy of the cover letter he sent to Appellant enclosing a copy of the brief
filed herein and the petition to withdraw. Those documents indicate that
counsel carefully and conscientiously examined the record, reviewed the
issues and researched the law, found no issues of merit to raise, and
concluded that the appeal was wholly frivolous. Counsel told Appellant that
he “may choose to retain another attorney privately or you may choose to
represent yourself in the appeal.” Petition to Withdraw, 2/13/15, at Exhibit
A. Thus, the procedural mandates for withdrawal were met.
We now examine whether the brief comports with the Supreme Court’s
dictates in Santiago, supra, which provides that
in the Anders brief that accompanies court-appointed counsel's
petition to withdraw, counsel must: (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.
Cartrette, supra at 1032 (quoting Santiago, supra at 361).
Counsel’s brief is sufficiently compliant with Santiago. It sets forth a
factual and procedural summary of this case and establishes why Appellant’s
issues lack legal merit by citing to controlling legal authority. We now
examine the merits of the issues raised and, after reviewing those
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contentions, we will independently review the record in order to determine if
counsel’s assessment of the frivolity of the present appeal is correct.
Cartrette, supra. These averments are raised on appeal:
1. Did the trial court err in granting the Commonwealth's
motion to amend the criminal charges at the preliminary
hearing?
2. Did the trial court err by denying Appellant's request for
a trial by jury and by proceeding with a non-jury trial?
3. Did the trial court abuse its discretion when it imposed
consecutive, rather than concurrent sentences which were not
mandated by the Pennsylvania Sentencing Guidelines but rather
by Appellant's race?
Appellant’s brief at 8.
Preliminarily, we note that the trial court did not order a Pa.R.A.P.
1925(b) statement and did not author an opinion herein. We thus have no
reasoning to examine in connection with disposition of the first two issues.
We also are unable to discern whether Appellant’s first two issues are
preserved. Our review of the record fails to reveal an objection to the
amendment of the complaint. Likewise, our review of the record reveals
that no request for a jury trial was made in any record document. A nonjury
trial was scheduled after the pretrial conference. At no point during the
nonjury trial did Appellant object to proceeding nonjury.
We do note that Appellant could have objected to the addition of
charges at the preliminary objection. Additionally, there was a pretrial
conference held in this matter, and, thereafter, the matter was set for a
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nonjury trial. Appellant could have requested a jury trial and objected to the
altered charges at that proceeding. Hence, we are hesitant to find waiver
herein, and will address the first two issues on the merits.
Appellant first argues that the charges were impermissibly amended
after the preliminary hearing. We note that the charges were amended on
July 8, 2014, to add a count of driving with a suspended license DUI-related
75 Pa.C.S. § 1543(b)(1), and a count of driving without a required interlock
device. At that point, the information had not been filed. The information
was filed on August 20, 2014 and included two counts: the DUI, general
impairment with chemical testing refusal and driving with a suspended
license, DUI-related. The interlock count was dropped, and it was not
included in the information.
In arguing that the amendment of the criminal complaint was
improper, Appellant references Pa.R.Crim.P. 564. That rule provides that a
court may permit an information to be amended for “a defect in form, the
description of the offense(s), the description of any person or any property,
or the date charged, provided the information as amended does not charge
an additional or different offense.” The purpose of the rule not allowing the
information to be altered so as to add an additional or different offense is “to
ensure that a defendant is fully apprised of the charges, and to avoid
prejudice by prohibiting the last minute addition of alleged criminal acts of
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which the defendant is uninformed.” Commonwealth v. Davalos, 779
A.2d 1190, 1194 (Pa.Super. 2001).
In this case, the information was not amended and contained the
charges for which Appellant was tried and convicted. We are aware of no
authority preventing the Commonwealth from altering the charges in the
information from those outlined in the criminal complaint and proceeding to
trial solely on the counts in the information. Hence, we cannot find error in
this respect.
Appellant next suggests that his request for a jury trial was improperly
denied. In Commonwealth v. Kerry, 906 A.2d 1237 (Pa.Super. 2006), we
noted that a defendant is not entitled to a jury trial when the offense in
question is a petty offense, which is defined as one that carries a maximum
sentence of six months or less. We continued that a defendant’s right to a
jury trial is not triggered when he is “charged with multiple petty offenses,
[and] the fact that the potential exists for an aggregate sentence exceeding
six months' incarceration does not entitle such a defendant to a jury trial.”
Id. at 1239-40. As noted by the Commonwealth at sentencing, Appellant’s
DUI charge carried a maximum penalty of six months imprisonment.
Appellant was found guilty of, “Driving Under the Influence, General
Impairment, Incapable of Safe Driving—Blood Test Refusal, 75 Pa.C.S.A. §
3802(a)(1).” Verdict of the Court, 11/14/14, at 1. The court also found that
the Commonwealth proved beyond a reasonable doubt that Appellant
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refused to give a sample of blood for testing. Id. Hence, the grading of the
present offense is set forth in 3803(b)(2), which states:
2) An individual who violates section 3802(a)(1) where the
individual refused testing of blood or breath, or who violates
section 3802(c) or (d) and who has no prior offenses commits a
misdemeanor for which the individual may be sentenced to a
term of imprisonment of not more than six months and to pay a
fine under section 3804.
75 Pa.C.S. § 3803(b)(2). Kerry applies and provides that Appellant did not
have the right to a jury trial.
Appellant’s final claim is that he was sentenced consecutively due to
his race. Specifically, he maintains:
Appellant believes there is nothing in the record to support
the sentencing Court's decision to run his sentences
consecutively and, therefore, the Court's only motivation for
doing so had to have been Appellant's race. Appellant is African-
American while all of the other persons present in the
courtroom including the judge, counselors, witnesses, court
reporter, affiant-and-tipstaff were Caucasian. Appellant
therefore asks that his sentence be modified so that both
sentences run concurrently.
Appellant’s brief at 14.
This position relates to the discretionary aspects of Appellant’s
sentence. It is settled that “where defendant failed to raise” a discretionary-
aspects-of-sentencing issue “at sentencing or in his post-sentence motion,”
the issue is waived. Commonwealth v. Tejada, 107 A.3d 788 (Pa.Super.
2015). Appellant’s present position is waived since it was not raised either
at sentencing or in a post-sentence motion.
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We now must address a submission to this Court made by Appellant
on February 17, 2015, and received by this Court on February 23, 2015. In
that document, Appellant seeks the appointment of another public defender
since present counsel is asking to withdraw. This request is governed by
Commonwealth v. Alberta, 974 A.2d 1158 (Pa. 2009). Therein, the
defendant petitioned our Supreme Court for the appointment of counsel.
The defendant had pled guilty but mentally ill to several offenses and was
sentenced. On direct appeal, court-appointed counsel moved to withdraw
under Anders and filed an Anders brief. This Court “determined that the
appeal was frivolous, granted counsel leave to withdraw, and affirmed the
orders of the trial court.” Id. at 1158.
In disposing of the defendant’s request for the appointment of counsel,
our Supreme Court held, “Appointed counsel who has complied with Anders
and is permitted to withdraw discharges the direct appeal obligations of
counsel. Once counsel is granted leave to withdraw per Anders, a
necessary consequence of that decision is that the right to appointed counsel
is at an end.” Id. at 1159. The Court further observed that the rules of
criminal procedure did not provide for the appointment of subsequent
counsel after appointed counsel is granted leave to withdraw pursuant to
Anders. Hence, our Supreme Court denied the defendant’s request for
appointment of counsel, and Alberta compels denial of Appellant’s request
for the appointment of new counsel.
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As required by the case authority, we have conducted an independent
review of the record and have concluded that there are no non-frivolous
issues that can be raised in this appeal. Hence, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Petition of Ian M. Brink, Esquire, to withdraw as counsel is granted.
The February 17, 2015 petition of Jonathan Jones for appointment of new
counsel is denied. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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