J-S67042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE GARCIA :
:
Appellant : No. 3449 EDA 2016
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.: FILED NOVEMBER 13, 2017
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.1 We affirm.
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).
____________________________________________
1 75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), 3746(a)(2), 1543(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67042-17
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?
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?
(Appellant’s Brief at 5).2
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
____________________________________________
2 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.
-2-
J-S67042-17
punishable by up to six months’ imprisonment;3 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
____________________________________________
3 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.
-3-
J-S67042-17
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.
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
-4-
J-S67042-17
(3) in a post-sentence motion.
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).
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. 4 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
____________________________________________
4The 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).
-5-
J-S67042-17
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.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
-6-
Circulated 10/24/2017 10:08 AM
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CRIMINAL DMSION
COMMONWEALTH OF PENNSYLVANIA
vs. Case No. 0696/2016
JOSE GARCIA,
Defendant
APPEARAN CP~S:
ADRA RENEE SMITH, ESQUIRE,
SENIOR DEPUTY DISTRICT ATTORNEY,
On behalf of the Commonwealth
KATHRYN SMITH J ESQUIRE )
On behalf of the Defendant
·k * * * ~- ·}: ·): •k
MEMORANDUM OPINION
MARIA L. DANTOS, J.
A non-jury trial was conducted in the within matter on August 15, 2016.
At the conclusion of the trial, this Court found the Defendant, Jose Garcia, guilty of
Driving Under the Influence of Alcohol (general impairment, first offense, highest tier), 1
Careless Driving.s Immediate Notice of Accident to Police Department," and Driving
75 Pa. C.S.A. § 3802(a)(l).
).
75 Pa. C.S.A. § 3714(a).
3 75 Pa. C.S.A. § 3746(a)(2).
While Operating Privilege is Suspended." Thereafter; on October 10, 2016, the
Defendant was sentenced to a term of imprisonment of not less than one (1) month nor
more than six (6) months in Lehigh County Jail, as well as costs and fines, to be run
consecutively to the sentence imposed in Case No. 215/2016. The within timely appeal
followed on November 3, 2016. Thereafter, this Court instructed the Defendant to file
of record and serve upon this Court a concise statement of errors complained of on
appeal no later than November 28, 2016, in accordance with Pennsylvania Rule of
Appellate Procedure 1925(b). The Defendant timely complied with said Order. In his
concise statement of matters complained of on appeal, the Defendant challenges the
weight of the evidence and the sufficiency of the evidence. The Defendant also argues
that this Court erred in not granting the Defendant a jury trial, as well as requests
this Court to reconsider its sentence.
A. Challe1.1gi11:g the Sufficiency of the Evidence
The Defendant alleges that the evidence presented by the Commonwealth
at trial was insufficient to sustain finding the Defendant guilty of Driving Under the
Influence of Alcohol (general impairment, first offense, highest tier), Careless Driving,
Immediate Notice of Accident to Police Department, and Driving Under Suspension. It
is well-settled law in Pennsylvania that when reviewing the sufficiency of the evidence
claim, the appellate court must review all of the evidence and all reasonable inferences
drawn therefrom in a light most favorable to the Commonwealth as the verdict winner.
Commonwealth v. TayJ.or, 831 A.2cl 66 i, 663 (Pa. Super. 2003), quoting ~ommonwealth
v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 200l)(stating that the standard applied in
75 Pa. C.S.A. § 1543(a}.
2
reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a reasonable doubt);
Commonwealth v. Klein, 795 A.2d 424, 426 (Pa. Super. 2002); Commonwealth v. Hall,
549 Pa. 269, 280, 701 A.2d 190, 195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct.
1534, 140 L.Ed.2d 684 (1998). Moreover, the facts and circumstances established by
the Commonwealth need not preclude every possibility of innocence. Commonwealth v.
Hunzer, 868 A.2d 4-98, 505 (Pa. Super. 2005). With that standard in mind, we must
determine whether the evidence was sufficient to prove all of the elements of the crimes,
which the Defendant challenges, beyond a reasonable doubt. Commonwealth v.
McCalman, 795 A.2cl 412, 415 (Pa. Super. 2002) (citing Commonwealth v. Passarelli,
789 A.2d 708, 716 (Pa. Super. 2001) (citations and quotations omitted)). Furthermore,
a mere conflict in the testimony does not render the evidence insufficient, because it is
within the province of the fact finder to determine the weight to be given to the
testimony and to believe all, part or none of the evidence. Commonwealth v. Moore, 436
Pa. Super. 495, 501, 648 A.2d 331, 333 (1993). If the finder of fact reasonably could
have determined from the evidence adduced that all of the necessary elements were
established, then the evidence will be deemed sufficient to support the verdict. Hunzer,
868 A.2cl at 505.
Initially this Court notes that in order to establish a prima [acie case for
Driving Under the Influence, the Commonwealth must have demonstrated that the
individual was driving, operating, or in actual physical control of the movement of the
vehicle while under the influence of alcohol to a degree which rendered him incapable
of safe driving. See 75 Pa. C.S.A. § 3802(a)(l).
Also, "any person who drives a vehicle in careless disregard for the safety
of persons or property is guilty" of Careless Driving. See 75 Pa. C.S.A. § 3714(a). In
addition, "[tjhe driver of a vehicle involved in an accident shall immediately by the
quickest: means of communication give notice to the nearest office of a duly
authorized police department if the accident involves damage to any vehicle involved
to the extent that it cannot be driven under its own power in its customary manner
without further damage or hazard to the vehicle, other traffic elements, or the
roadway, and therefore requires towing." See 75 Pa. C.S.A. § 3746(a)(2} (Immediate
Notice of Accident to Police Department). Finally, "any person who drives a motor
vehicle on any highway or traffic way of this Commonwealth after the commencement
of a suspension, revocation or cancellation of the operating privilege and before the
operating privilege has been restored" is guilty of Driving Under Suspension. See 7 5
Pa. C.S.A. § 154-3(a).
After a review of the record, this Court finds that the evidence presented at
the non-jury trial was sufficient to support the finder of fact's verdict with regard to all
of the aforementioned charges. Viewed in the light most favorable to the
Commonwealth, as verdict winner, a summary of the specific evidence established at
trial is as follows:
In the instant case, the evidence presented at trial revealed that on
August 22, 2015, at approximately 4:30 A.M., Officer Joseph Beiner of the Allentown
Police Department was patrolling in full uniform and in a marked patrol unit when he
received a dispatch to respond to the scene of an accident at the McDonald's parking
lot located at 1414 Tilghman Street, Allentown, Lehigh County, Pennsylvania. Upon
his arrival, he observed a male, later identified as the Defendant, .Jose Garcia,
4
standing outside of the driver's side door of a black Ford Fl 50 pick-up truck. Officer
Seiner observed that the Ford Fl 50 pick-up truck had sustained damage to the front
fender and to the driver side fender. In addition, Officer Seiner noticed that another
vehicle located in the McDonald's parking lot, which was approximately twenty (20')
feet from the Ford Fl 50 pick-up truck, had damage to the rear of the car. This
damage was new, as there was glass underneath the back encl of the vehicle. Also, a
telephone pole at the southeast end of the McDonald's parking lot was also damaged.
In particular, Officer Beiner viewed "scuff marks" on the telephone pole. Officer
Beiner observed that the Ford F 150 pick-up truck had yellow transfer paint from the
utility pole on the side, which was consistent with hitting the telephone pole.
Officer Seiner approached the Defendant and inquired about the
accident. The Defendant denied having any knowledge of a vehicular accident. He
indicated that his wife had been driving the Ford F'lSO pick-up truck, and that she
was in the McDonald's restaurant using the restroom facilities. Officer Seiner went
into the McDonald's to locate the Defendant's wife. However, no patrons were inside
the McDonald's, as the restaurant was closed and only had employees inaide.>
When Officer Beirier initially had spoken with the Defendant, he
immediately noted a strong odor of alcohol emanating from bis person and his breath.
5 The Defendant's wife, Tamisha Taylor, testified at the time of trial. Her testimony was
completely incredible and unbelievable. Ms. Taylor indicated that at approximately 4:00 A.M.,
she and her husband decided to leave their seven (7) children, whose ages range from one year
old to seventeen (17) years old, home alone to go get something to eat at McDonald's. She
indicated that she was the driver of the Ford F'l50 pick-truck and that she had struck the pole
in the McDonald's parking lot. Ms. Taylor then explained that she became so upset that she
had to use the restroom. As the McDonald's was closed, she walked to Walgreens located at
1 71h and Tilghman Streets to use their bathroom facilities. Ms. Taylor stated that it took her
about one ( 1) hour to find a bathroom and return to the scene of the accident. Ms. Taylor's
testimony was completely incredible and this Court disregarded it: in its entirety as one
complete lie.
The Defendant had glassy and bloodshot eyes, and was swaying. In addition, the
Defendant kept repeating himself to the Officer. Officer Beiner inquired if the
Defendant would consent to performing field sobriety tests. At first the Defendant
agreed. However, the Defendant changed his mind and refused to allow the tests to
be administered. Consequently, believing that the Defendant was under the influence
of alcohol and incapable of safe driving, Officer Beiner placed the Defendant in
custody, and transported the Defendant to the DUI Central Booking Center for a
blood draw, where he refused to submit to chemical testing. Furthermore, the
certified Pennsylvania Department of Transportation Bureau of Driver Licensing
records indicates that the Defendant's driver's license was suspended on August 22,
2015. (C. Ex. 1).
·--------------------------···-····-···- .... ·-··········-······--· ----------------
In light of this abundant evidence enumerated above, the Defendant's
challenge to the sufficiency of the evidence must fail.
B. Challenging the Weight of the Evidence
The Def end ant alleges that the verdict was against the weight of the
evidence. This Court notes that a motion for a new trial on grounds that the verdict is
contrary to the weight of the evidence concedes that there is sufficient evidence to
sustain the verdict, but contends that it is against the weight of the evidence.
Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000);
Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003). Furthermore, a
challenge that the verdict is against the weight of the evidence requires this Court to
conclude in its discretion that "the verdict is so contrary to the evidence as to shock
6
one's sense of justice.'' Lyons, 833 A.2d at 258. Indeed, for a new trial to lie on a
challenge that the verdict is against the weight of the evidence, the evidence must be
so tenuous, vague and uncertain that the verdict shocks the conscience of the court."
Commonwealth v. Shaffer, 722 A.2cl 195, 200 (Pa. Super. 1998). See also
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
From the evidence recounted above, it is reasonable to have concluded
that the Defendant was driving, operating, or in actual physical control of the
movement of his Ford F150 pick-up truck while under the influence of alcohol to a
degree which rendered him incapable of safe driving. Also, the evidence showed that
the Defendant drove his Ford F150 pick-up truck in careless disregard for the safety
of persons or property when he struck the utility pole and the other vehicle parked in
the McDonald's parking lot. In addition, the Defendant failed to give notice to the
nearest office of a duly authorized police department after he was involved in the
accident that involved damage to another vehicle. Finally, the record evidence
established that the Defendant drove the Ford F150 pick-up truck at a time when his
license was suspended, in violation of the Motor Vehicle Code. In light of this
abundant evidence enumerated above, the Defendant's challenge to the weight of the
evidence must fail.
C. Motion to Modify and Reduce Sentence
Finally, the Defendant asserts that this Court erred in sentencing the
Defendant to a manifestly excessive and unduly harsh sentence. The Defendant is
challenging the discretionary aspects of sentencing. Commonwealth v. Bishop, 831
A.2d 656, 660 (Pa. Super. 2003). Initially this Court notes that:
7
Sentencing is within the sound discretion of the sentencing
judge, and that decision will not be disturbed absent an
abuse of discretion. Commonwealth v. Jones, 418 Pa.
Super. 93, 613 A.2cl 587, 591 (1992)(en. bane). "To
constitute an abuse of discretion, the sentence imposed
must either exoeecl the stat·utory limits or be m.anifostly
excessive." Commonwealth v. Gaddis, 432 Pa. Super. 523,
639 A.2d 462, 469 (1994). Nevertheless, sentencing
guidelines are merely advisory, and the court may, in its
discretion, sentence outside the guidelines. When a trial
court deviates from the guidelines, it must state its reasons
for deviation on the record at the time of sentencing or in a
contemporaneous written statement. Commonwealth v.
Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994).
The court must also consider the guidelines as a starting
point and deviate so as to impose a sentence consistent
with both the public's safety needs and the defendant's
rehabilitative needs. Id.
Commonwealth v. Shaffer, 722 A.2d 195, 198-199 (Pa. Super. 1998). If "the
sentencing court proffers reasons indicating that its d~ision to depart from the
guidelines is not unreasonable," its responsibilities have been fulfilled and the
appellate courts will not disturb the sentence. Commonwealth v. Gibson, 716 A.2cl
1275, 1277 (Pa. Super. 1998).
In the instant case, the Defendant's minimum sentence was within the
standard range of the guidelines and maximum sentence was set at the statutory
maximums. Unquestionably, the sentence imposed did not exceed the statutory
limits. Therefore, the Defendant's sentence must be evaluated to determine if it was
"manifestly excessive." To do so, the following considerations must be examined:
In determining whether a sentence is manifestly excessive,
the appellate court must give great weight to the
sentencing court's discretion, as he or she is in the best
position to measure factors such as the nature of the
crime, the defendant's character, and the defendant's
display of remorse, defiance, or indifference.
Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super.
J 997). Where an excessiveness claim is based on a court's
8
sentencing outside the guideline ranges, we look, at a
minimum, for an indication on the record that the
sentencing court understood the suggested sentencing
range. 42 Pa. C.S.A. § 972l(b). When the court so
indicates, it may deviate from the guidelines, if necessary,
to fashion a sentence which takes iota acccunt the
protection of the public, the rehabilitative needs of the
defendant, the gravity of the particular offenses as it relates
to the impact on the life of the victim and the community,
so long as the court also states of record the factual basis
and specific reasons which compelled him to deviate from
the guideline range.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (citations omitted).
Moreover, "[i]t is well-settled that appeals of discretionary aspects of a
sentence are not reviewable as a matter of right." Commonwealth v. Ladamus, 896
A.2d 592, 595 (Pa. Super. 2006); see also Commonwealth v. Shugars, 895 A.2d 1270,
1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super.
2003). The defendant must demonstrate that a substantial question exists
concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super.
2005). Furthermore, a substantial question requires something more than an
allegation that the sentences imposed are excessive or harsh. Laclamus, 896 A.2d at
595. Consequently, Defendant's assertion that this Court abused its discretion by
imposing an excessive and harsh sentence fails to present a substantial question to
justify a review of his claim.
Additionally, even if the merit of the Defendant's sentencing claim were
addressed, Defendant's argument must fail. The Defendant's sentence must initially
be evaluated to determine if there was an abuse of discretion. Commonwealth v.
Walls, 926 A.2cl 957 (Pa. 2007). The standard of review has been explained in the
following manner:
9
Sentencing is a matter vested in the sound discretion of the
sentencing judge, mid a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reforence to tfo: record, that tbe sentencing c~rnrt ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth
v. Rodela, 723 A.2cl 212, 214 (Pa. Super. 1999)(en bane).
In imposing the Defendant's sentence, this Court considered the
"protection of the public, the gravity of the offense as it relates to the impact on the
victim and the community, the defendant's rehabilitative needs, an.cl the sentencing
guidelines." 42 Pa. C.S.A. § 9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383
(Pa. Super. 2008).
Prior to sentencing, this Court carefully reviewed the Pre-Sentence
Investigation Report prepared on September 14, 2016. The Court was aware of all of
the information contained therein. Also, this Court did not fail to consider mitigating
factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (holding that
where a pre-sentence report exists, there is a presumption that the sentencing judge
was aware of and adequately considered information relevant to the defendant's
character, as well as any mitigating factors).
Additionally, it is axiomatic that the imposition of consecutive rather
than concurrent sentences lies within the sound discretion of the sentencing court.
Commonwealth v. Booze, 953 A.2d 1263, 1279 (Pa. Super. 2008). Long-standing
precedent recognizes that 42 Pa. C.S.A. § 9721 affords the sentencing court discretion
to impose its sentence concurrently or consecutively to other sentences being
10
imposed at the same time or to sentences already imposed. 42 Pa. C.S.A. § 9721. See
also Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008);
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005}. "A challenge to the
imposition of consecutive rather than concurrent sentences does not present a
substantial question regarding the discretionary aspects of sentence."
Commonwealth v. Lloyd, 878 A.2cl 867, 873 (Pa. Super. 2005). Indeed, the Superior
Court of Pennsylvania has stated: "We see no reason why [a defendant] should be
afforded a 'volume discount' for his crimes by having all sentences run concurrently."
Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214 (1995).
With all of this information in mind, using its discretion this Court
imposed a sentence that was appropriate and within the law. Accordingly, the
Defendant's argument is baseless and the Defendant's request to modify and reduce
sentence is denied.
D. Entitled to Jury Trial
The Defendant argues that he was entitled to a trial by jury in the within
matter. However, this argument is baseless. This Court notes that the "right to a jury
trial exists when a defendant faces a charge which, alone, could lead to imprisonment
beyond six months." Commonwealth v. Harriott, 919 A.2d 234, 237 (Pa. Super.
2007}, citing Commonwealth v. Kerry, 906 A.2cl 1237, 1239, 1240 (Pa. Super. 2006).
"By contrast, there is no jury trial right if an offense bears a maximum incarceration
of six months or less." Id. Pennsylvania deems a first offense Driving Under the
Influence charge an ungraded misdemeanor, punishable by up to aix (6) months of
imprisonment. See 75 Pa. C.S.A § 3803(a)(l). Where a first offender refuses chemical
11
testing, the violation remains graded as an ungraded misdemeanor punishable by up
to 6 months' imprisonment. 75 Pa. C.S.A. § 3803(b)(2). Consequently, the Defendant's
argument is legally flawed.
The Defendant's appeal is without merit and should be dismissed.
DATED:
12