Com. v. Hartle

894 A.2d 800

COMMONWEALTH of Pennsylvania, Appellee, v. Mark A. HARTLE, Appellant.

Superior Court of Pennsylvania.

Argued November 29, 2005.

Filed March 2, 2006.

COPYRIGHT MATERIAL OMITTED

Peter T. Campana, Williamsport, for appellant.

Michael T. Hudock, Asst. Dist. Atty., Middleburg, for Com., appellee.

BEFORE: JOYCE, ORIE MELVIN, and TAMILIA, JJ.

OPINION BY JOYCE, J.:

¶ 1 Mark A. Hartle (Appellant) appeals the judgment of sentence imposed on April 18, 2005, in the Snyder County Court of Common Pleas following his convictions for driving under the influence of alcohol (DUI) (75 Pa.C.S.A. § 3731),¹ giving false reports to law enforcement (18 Pa.C.S.A. § 4914), and failure to stop at a stop sign (75 Pa.C.S.A. § 3323). Upon review, we affirm the convictions and remand for resentencing. The relevant facts and procedural history of this matter follow.

¶ 2 On August 21, 2003, Pennsylvania State Police Troopers Michael Connelly and Scott Davis were on routine patrol in Selingsgrove Borough, Snyder County, Pennsylvania. At 2:25 a.m., the troopers witnessed a pickup truck fail to stop at a stop sign at the intersection of Vine and Market Streets. The troopers followed the pick-up and initiated a traffic stop. Trooper Connelly exited the State Police cruiser and approached the driver's side door of the pick-up; Appellant was the only occupant of the vehicle. Trooper Connelly informed Appellant that he stopped him because of his failure to stop at the stop sign, and he requested Appellant's driver's license, automobile registration, and proof of insurance. While Appellant was searching for the paperwork, the trooper inquired as to why Appellant ran the stop sign. Appellant responded that he was following some friends and did not want to lose sight of them. Ultimately, Appellant was only able to provide Trooper Connelly with a registration card bearing the name of Ellen Hartle. When Trooper Connelly asked Appellant his name, Appellant responded that his name was David Hartle, and that he had a valid driver's license in the State of New York.²

¶ 3 During this discussion, Trooper Connelly noticed a strong odor of alcohol emanating from Appellant's breath. Appellant was asked to exit the vehicle, and he complied. The troopers observed that Appellant swayed in a circular motion as he stood outside the truck. Appellant refused to perform field sobriety tests. He was arrested and taken to the Pennsylvania State Police barracks. Appellant was apprised of his Miranda³ rights and his rights pursuant to Pennsylvania's implied consent law;⁴ however, he refused to submit to a breath test.

¶ 4 The case proceeded to a jury trial on March 31, 2004, with the Honorable Harold F. Woelfel, Jr. presiding. Following deliberations, the jury found Appellant guilty of driving under the influence of alcohol (DUI) (75 Pa.C.S.A. § 3731(a)(1)) graded as a misdemeanor of the second degree (M2), and giving false reports to law enforcement (18 Pa.C.S.A. § 4914).⁵

¶ 5 On April 18, 2005, the trial court sentenced Appellant to a term of 3 to 24 months' incarceration on the DUI conviction, and to a term of 1 year of probation for the false reports conviction to run concurrently to the sentence imposed for DUI.⁶ Appellant filed timely post-sentence motions that were denied by the trial court. This timely appeal followed.

¶ 6 On appeal, Appellant raises the following claims of error:

WHETHER THE EVIDENCE PRESENTED AT TRIAL IS SUFFICIENT TO SUSTAIN THE JURY'S GUILTY VERDICT ON THE CHARGE OF DRIVING UNDER THE INFLUENCE OF ALCOHOL IN VIOLATION OF FORMER § 3731(a)(1) OF THE VEHICLE CODE?

WHETHER THE SENTENCE IMPOSED BY THE LOWER COURT, NOT LESS THAN 90 DAYS NOR MORE THAT 2 YEARS TOTAL CONFINEMENT IN A STATE CORRECTIONAL INSTITUTION, SHOULD BE SET ASIDE BY THIS COURT AS CONSTITUTING AN ABUSE OF DISCRETION OR AS BEING OTHERWISE UNREASONABLE, ILLEGAL OR CONTRARY TO LAW?

Brief for Appellant, at 5. We will address the issues in the order in which they were presented.

¶ 7 Appellant's first issue presents a challenge to the sufficiency of the evidence presented at trial. Our standard of review in cases challenging the sufficiency of the evidence is well settled.

¶ 8 In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to determine whether there is sufficient evidence to enable the factfinder to find every element of the crime established beyond a reasonable doubt. Commonwealth v. Thomas, 867 A.2d 594 (Pa.Super.2005). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Id. at 597. And while a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty. Id. quoting Commonwealth v. Coon, 695 A.2d 794, 797 (Pa.Super.1997). This Court is not free to substitute its judgment for that of the fact-finder; if the record contains support for the convictions they may not be disturbed. Id. citing Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa.Super.1997) and Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). Lastly, the factfinder is free to believe some, all, or none of the evidence. Id. With these principles in mind, we shall proceed with our analysis.

¶ 9 Pennsylvania's former DUI statute, pursuant to which Appellant was convicted, read as follows:

Driving under the influence of alcohol or controlled substance

(a) Offense defined.-A person shall not drive, operate or be in actual physical control of the movement of any vehicle:

(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving[.]

75 Pa.C.S.A. § 3731(a)(1).

¶ 10 Appellant argues that the Commonwealth failed to present any objective evidence to sustain Appellant's conviction for DUI. Brief for Appellant, at 13. We disagree.

¶ 11 The record reflects that Officer Connelly testified that while talking to Appellant during the traffic stop he noticed a very strong odor of alcohol emanating from Appellant's breath. N.T. 03/31/2004, at 44. He further testified that Appellant's eyes were bloodshot and glassy and Appellant kept repeating that he was just following friends. Id. He asked why Appellant, who was driving a vehicle with New York plates, was in Pennsylvania. Id. He stated that Appellant told him he was in Pennsylvania doing construction work. Id. He then testified that he asked Appellant to exit the vehicle for field sobriety tests, and Appellant refused because he alleged that he had a back injury. Id. Trooper Connelly testified that he thought it was unusual for someone who works construction to be physically unable to perform the one-leg stand and walk and turn field sobriety tests. Id. at 45. The trooper testified that while standing outside the vehicle, Appellant swayed in a circular motion. Id. at 47. Additionally, the trooper said that Appellant refused to submit to a breath test. Id. at 52. The trooper then testified that he concluded Appellant was intoxicated. Id. at 59.

¶ 12 Trooper Connelly's partner, Trooper Scott Davis also testified. He echoed the observations and conclusions of Trooper Connelly, and he testified that he believed Appellant was under the influence of alcohol and incapable of safe driving. Id. at 89.

¶ 13 We are aware that Appellant had witnesses testify in his defense. These witnesses testified that they did not believe Appellant was under the influence of alcohol. However, in light of our standard of review, we note that the jury was free to disregard this testimony. See Thomas, supra.

¶ 14 After careful review of the evidence presented, we find no error. The testimony presented by Troopers Connelly and Davis was sufficient to prove the elements of DUI beyond a reasonable doubt. Appellant ran a stop sign, smelled of alcohol, had bloodshot and glassy eyes, was unsteady on his feet, refused to perform field sobriety tests, and refused a breath test. Accordingly, pursuant to our standard of review, we find Appellant is entitled to no relief on this claim.

¶ 15 Appellant's next issue presents a challenge to the discretionary aspects of his sentence. We note there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Mouzon, 571 Pa. 419, 425, 812 A.2d 617, 621 (2002). Rather, allowance of appeal will be permitted only when the appellate court determines that there is a substantial question that the sentence is not appropriate under the Sentencing Code. Id. The determination of what constitutes a substantial question is made on a case-by-case basis. Commonwealth v. McNabb, 819 A.2d 54 (Pa.Super.2003). A substantial question exists where an appellant sets forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Id. at 56.

¶ 16 Furthermore, an appellant who seeks to challenge the discretionary aspects of his or her sentence must provide a separate statement, pursuant to Rule of Appellate Procedure 2119(f), specifying where the sentence falls in relation to the Sentencing Guidelines and what particular provision of the Sentencing Code has been violated. Commonwealth v. Boyer, 856 A.2d 149 (Pa.Super.2004). The 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm. Id. Appellant has included a 2119(f) statement, and we will proceed to a determination of whether Appellant has raised a substantial question.

¶ 17 In Appellant's 2119(f) statement, he alleges that the trial court imposed a sentence in violation of a particular provision of the Sentencing Code. Specifically, Appellant claims that the trial court erred pursuant to 204 Pa.Code § 303.11(b)(2) by...