Commonwealth v. Nardizzi

245 A.3d 1048 (Table)

COMMONWEALTH of Pennsylvania v. Joseph NARDIZZI, Appellant

No. 565 WDA 2020

Superior Court of Pennsylvania.

Filed December 7, 2020

MEMORANDUM BY STEVENS, P.J.E.:

Appellant Joseph Nardizzi appeals the judgment of sentence entered by the Court of Common Pleas of Westmoreland County after the trial court convicted Appellant of Driving Under the Influence of Alcohol (DUI: General Impairment—Incapable of Safe Driving). ¹ Appellant claims the trial court erred in denying his motion for acquittal and challenges the sufficiency and weight of the evidence supporting his conviction. We affirm.

The trial court aptly summarized the factual background of this case as follows:

The charges in the case arose out of an investigation following a motor vehicle accident involving [Appellant,] Joseph Nardizzi on December 23, 2017 in Greensburg, Westmoreland County. The evidence presented at the non-jury trial established that on the date of the incident, in the early evening hours, [Appellant] rear-ended a vehicle driven by Mark Middleton (hereinafter "Middleton"), causing damage to Middleton's vehicle. Middleton testified that after his vehicle was hit, he exited his vehicle, walked to the rear to assess the damages, and exchanged information with [Appellant]. According to Middleton, [Appellant] informed him that he wanted to leave because there was a State Police presence in the area, and asked if he could provide Middleton with his phone number and call him the following day with his information.

Middleton testified that based on his observations and training and experience, as stated in further detail below, he believed [Appellant] "to be sort of not with it, kind of maybe under the influence maybe." In support of his belief, he stated that [Appellant] was apprehensive in providing his information, he wanted to leave the area, he was very pensive, and he was guttural in his tone. Middleton stated that he has been a volunteer firefighter for 30-some years, he deals with traffic accidents and vehicle collisions, he has his State Police Certification for Accident Reconstruction [ ], and he currently is state police certified to handle state police equipment.

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After eventually providing some information, Middleton indicated that [Appellant] and him parted ways, and he subsequently noticed that the insurance information that [Appellant] provided to him was expired. As such, Middleton testified that he stopped at the Greensburg Police Station and spoke with Patrolman Justin Scalzo regarding the insurance information. On cross-examination, Middleton confirmed that at the time of the accident, there were no adverse road conditions, and it was just starting to get dark outside. Middleton testified that following the traffic accident, he did not observe [Appellant] having any difficulty pulling into the S & T parking lot, and at no time during the interaction did he observe [Appellant] with a staggered gait, glassy bloodshot eyes, or a smell of the odor of alcohol; however, he indicated that he did not "really look at [Appellant] that well" and [Appellant] never really left the area of his vehicle for Middleton to see him.

Patrolman Justin Scalzo, of the City of Greensburg Police Department, testified that on the date of the incident at 5:55 p.m., he was dispatched to respond to the police station to take a report of a vehicle accident reported by Middleton. Patrolman Scalzo indicated that after speaking to Middleton, he radioed the officers who he was working with that evening to respond to [Appellant's] residence, which was provided on [Appellant's] vehicle registration, in order to check on [Appellant's] condition and determine if he had a valid insurance card. According to Patrolman Scalzo, Patrolman Elliott Fejes indicated that they made contact with [Appellant] and advised Patrolman Scalzo to report to the scene as Patrolman Fejes believed [Appellant] was under the influence.

Patrolman Chase Mollomo of the City of Greensburg Police Department testified that he was dispatched to [Appellant's] residence on Cherry Street with Patrolman Fejes, where he observed [Appellant's] vehicle with light front-end damage, and [Appellant] admitted to hitting Middleton's vehicle. Additionally, after encountering [Appellant], Patrolman Mollomo indicated that he smelled an alcoholic beverage emanating from [Appellant's] person, and [Appellant] acknowledged he had been drinking. Patrolman Mollomo stated that he remained on the scene with [Appellant] until Patrolman Scalzo arrived on scene.

Patrolman Scalzo indicated that he immediately responded to the area and arrived within a couple of minutes. Patrolman Scalzo testified that upon approaching [Appellant], he observed a strong odor of an alcoholic beverage coming from his person and observed [Appellant] with an unsteady gait, slurred speech, and glassy eyes. At this point, Patrolman Scalzo stated that he determined that in his belief, [Appellant] was driving under the influence of an alcoholic beverage. According to Patrolman Scalzo, [Appellant] admitted to drinking "a little," but he indicated that "I am not DUI." Additionally, it was relayed that [Appellant] refused to perform any Standardized Field Sobriety tests or submit to a breath test.

After the Commonwealth rested, Defense Counsel moved for judgment of acquittal arguing that Patrolman Scalzo's testimony that [Appellant] was under the influence of alcohol to a degree that rendered him incapable of safe driving at the time of the traffic accident had not been proven beyond a reasonable doubt as the timing of the accident could not be established.

Following the denial of the Motion for Judgment of Acquittal, [Appellant] elected to testify at trial. [Appellant] testified that on the date of the incident, he went to Jaffre's restaurant in Greensburg at 4:17 p.m. to purchase gift cards. He then indicated that at 4:22 p.m., he ordered a pizza from Sunset Café in Greensburg, which was to be ready for pickup at 5:02 p.m., and while he waited to leave to pick up his pizza, he ordered a drink and some food at Jaffre's. After leaving Jaffre's, and in route to Sunset Café, [Appellant] testified that he encountered Middleton and was involved in a traffic accident between 5:12 p.m. and 5:14 p.m. [Appellant] indicated that he was not hesitant to provide Middleton with his information; however, he was running late and had a friend coming over, and he just wanted to get out of there. [Appellant] testified that Sunset Café is located approximately one mile from the scene of the accident, and he arrived at 5:32 p.m. [Appellant] then indicated that he left the restaurant and arrived at his residence at 5:36 p.m. where he made a "tall Jack and water," ate a couple pieces of pizza, and then made another "strong[,] tall Jack and water" before Greensburg Police arrived at 6:08 p.m.

On cross-examination, [Appellant] testified that while at Jaffre's, he consumed two Captain and Cokes and then admitted to striking Middleton's car leaving Jaffre's.

Trial Court Opinion (T.C.O.), 6/18/20, at 1-5 (citations and footnotes omitted).

In connection with his arrest, Appellant was charged with DUI (General Impairment – Incapable of Safe Driving) and DUI (Refusal to Submit to Chemical Testing). After a bench trial, the trial court convicted Appellant of DUI (General Impairment – Incapable of Safe Driving). On November 27, 2019, the trial court sentenced Appellant to forty-eight (48) hours to six (6) months' incarceration, suspended his driver's license for one year, and ordered him to submit to a CRN evaluation and pay costs and fines.

On November 27, 2019, Appellant filed a timely post-sentence motion, which the trial court deemed to be denied by operation of law on April 23, 2020. On May 12, 2020, Appellant filed a timely appeal and subsequently complied with the trial court's direction to file a Concise Statement of Errors on Appeal pursuant to Pa.R.A.P. 1925(b).

Before we reach the merits of this case, we must determine whether the appeal is properly before us. Pennsylvania Rule of Criminal Procedure 720 provides, in pertinent part, that after filing a timely post-sentence motion, the defendant shall file a notice of appeal "within 30 days of the entry of the order denying the motion [or] within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion." Pa.R.Crim.P. 720(A)(2)(a)-(b). The trial court is required to decide the post-sentence motion within 120 days of its filing. Pa.R.Crim.P. 720(B)(3)(a). If the trial court fails to decide the motion within the 120-day time period, the motion will be deemed denied by operation of law. Id . Rule 720 requires the clerk of courts to enter an order denying the motion by operation of law on behalf of the court. Pa.R.Crim.P. 720(B)(3)(c).

In this case, the trial court indicated that it had inadvertently failed to rule on Appellant's post-sentence motion within the 120 day time limit set forth in Rule 720. The docket shows that the clerk of courts also failed to enter an order deeming the motion denied by operation of law at the expiration of the applicable 120 day time period. Under such circumstances, the failure of the clerk of courts to enter the requisite order notifying the appellant that the post-sentence motion had been denied by operation of law constitutes an administrative breakdown of court processes and the appeal is considered timely filed. Commonwealth v. Perry , 820 A.2d 734, 735 (Pa.Super. 2003).

Appellant raises the following issues on appeal:

I. Did the Trial Court in denying [Appellant's] Motion for Judgment of Acquittal following the close of the Commonwealth's case?

II. Did the Trial Court err in determining that sufficient evidence was presented by the Commonwealth to find [Appellant] guilty of Driving Under the Influence of Alcohol: General Impairment – Incapable of Safe Driving?

III. Did

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