The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY MICHAEL KAUFFMANN
Appellant No. 2839 EDA 2013
Appeal from the Judgment of Sentence April 18, 2013
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001635-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 22, 2014
Appellant, Gary Michael Kauffmann, appeals from judgment of
sentence entered on April 18, 2013, by the Court of Common Pleas of
Monroe County. We reverse the conviction for violating 75 Pa.C.S.A. §
3111(a), affirm the other convictions, but vacate the judgment of sentence
and remand for re-sentencing as we have upset the sentencing scheme.
For purposes of this appeal, the factual basis of Kauffmann’s judgment
of sentence is largely uncontested. On June 12, 2012, Officer Christopher
Gupko pulled over a vehicle operated by Kauffmann pursuant to his belief
that Kauffmann was speeding. After Kauffmann pulled over, Officer Earl
Ackerman pulled in front of the vehicle to facilitate the traffic stop.
Officer Ackerman testified that he observed that Kauffmann had glassy
eyes, a strong odor of alcohol, slurred speech, and was verbally combative.
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Officer Gupko subsequently placed Kauffmann under arrest for driving while
under the influence of alcohol (DUI) and took Kauffmann to the hospital for a
blood test. Even though Kauffmann agreed to have his blood taken, he
remained combative, and refused to sit for the test.
Officer Gupko then transported Kauffmann back to the police station.
The police station did not have holding cells. Thus, Kauffmann was
handcuffed to a chain, which was attached to an eyehook in the wall. While
chained to the wall in the police station, Kauffmann became violent and
began spitting. While Kauffmann was being placed in the back seat of the
patrol vehicle for transport to the local jail, he spat on Officers Ackerman
and Gupko.
A jury subsequently found Kauffmann guilty of two counts of
Aggravated Harassment by a Prisoner,1 one count of DUI-General
Impairment,2 one count of Obedience to Traffic Control Signals,3 and one
count of criminal mischief.4 The trial court sentenced Kauffmann to an
aggregate term of incarceration of twelve to twenty-four months. Kauffmann
subsequently filed post-sentence motions, which the trial court denied. This
timely appeal followed.
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1
18 Pa.C.S.A. § 2703.1
2
75 Pa.C.S.A. § 3802(a)(1)
3
75 Pa.C.S.A. § 3111(a)
4
18 Pa.C.S.A. § 3304(a)(4)
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In his first issue, Kauffmann argues that he is entitled to a new trial
pursuant to the Commonwealth’s failure to disclose the dash-cam video
during pre-trial discovery. However, we are unable to reach the merits of
Kauffmann’s Brady5 claim as he has failed to include the dash-cam video
evidence in the certified record. “Our law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the material necessary
for the reviewing court to perform its duty.” Commonwealth v. Preston,
904 A.2d 1, 7 (Pa. Super. 2006) (citing Commonwealth v. Kleinicke, 895
A.2d 562, 575 (Pa. Super. 2006) (en banc)). Furthermore, the law of
Pennsylvania is well settled that issues not found within the certified record
cannot be considered on appeal. See Commonwealth v. Bracalielly, 658
A.2d 755, 763 (Pa. 1995).
Kauffmann has failed to provide a copy of the dash-video in the
certified record. We are thus unable to review the merits of his Brady claim
as it requires us to determine if the trial court was correct in determining
that the video was not exculpatory. Therefore, we find that Kauffmann has
waived the issue for his failure to complete the certified record with all of the
required materials for our review.
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5
Brady v. Maryland, 373 U.S. 83 (1963)
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Next, Kauffmann argues that the evidence supporting his conviction
for failure to obey a traffic control device was legally insufficient. We review
challenges to the sufficiency of the evidence pursuant to the following
standards. A claim challenging the sufficiency is a question of law. See
Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004). The
evidence adduced at trial must be viewed in the light most favorable to the
verdict winner to determine whether there is sufficient evidence to enable
the fact-finder to find every element of the crime beyond a reasonable
doubt. See Commonwealth v. Walker, 874 A.2d 667, 677 (Pa. Super.
2005). Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder 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. See id. The Commonwealth is entitled to all reasonable
inferences arising from the evidence and all facts which the Commonwealth’s
evidence tends to prove are treated as admitted. See Commonwealth v.
Hunter, 768 a.2d 1136, 1142 (Pa. Super. 2001).
Only where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human experience,
and in contravention to the laws of nature, is the evidence deemed
insufficient as a matter of law. See id. We must determine whether,
“accepting as true all the evidence and all reasonable inferences therefrom,
upon which, if believed, the jury could properly have based its verdict, it is
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sufficient in law to prove beyond a reasonable doubt that the defendant is
guilty of the crime or crimes of which he has been convicted.”
Commonwealth v. Williams, 316 A.2d 888, 892 (Pa. 1974).
Here, Kauffmann was found guilty of violating 75 Pa.C.S.A. § 3111(a)
because he had allegedly exceeded the speed limit. 75 Pa.C.S.A. § 3111(a)
states, in relevant part:
Unless otherwise directed by a uniformed police officer or any
appropriately attired person authorized to direct, control or
regulate traffic, the driver of any vehicle shall obey the
instruction of any applicable official traffic-control device placed
or held in accordance with the provisions of this title.
Official traffic-control devices are defined as signs, signals, markings and
devices placed under the appropriate authority of a jurisdiction, for the
purpose of regulating, warning or guiding traffic. See 75 Pa.C.S.A. § 102.
This Court has previously stated that if the Commonwealth wishes to
prove that a defendant violated § 3111(a) by exceeding the maximum speed
limit, then it must present evidence calculated by one of the prescribed ways
listed in 75 Pa.C.S.A. § 3368. See Commonwealth v. Masters, 737 A.2d
1229, 1232 (Pa. Super. 1999); Commonwealth v. Martorano, 563 A.2d
1229, 1233 (Pa. Super. 1989) (en banc). A panel of this Court in Masters
stated:
To the extent that a defendant can be prosecuted for exceeding
a maximum speed limit under section 3111 of the Motor Vehicle
Code, that section and section 3362 relate to the same subject
matter. To establish a violation of section 3362, evidence of the
use of a speed timing device as specified in section 3368 must
be presented. Therefore, to construe sections 3362 and 3111
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consistently, we must find evidence of the use of a speed timing
device should also be required to established a violation of
section 3111.
737 A.2d at 1232 (citations omitted).6
Instantly, when reviewing the record in a light most favorable to the
Commonwealth as the verdict winner, we find that there is insufficient
evidence to establish that Kauffmann violated Section 3111(a). The only
evidence presented to establish Kauffmann’s violation of Section 3111(a) is
the estimated speed based upon the visual calculations of Officer Gupko.
See N.T., Trial, 1/4/13 at 85. Officer Gupko testified that he estimated
Kauffmann was traveling 65 m.p.h. in a 45 m.p.h. zone. See id. The record
is devoid of any evidence calculated with the prescribed means listed within
75 Pa.C.S.A. § 3368. As such, we find that there is insufficient evidence to
uphold Kauffmann’s conviction under Section 3111(a). Accordingly, the
judgment of sentence on this conviction is reversed.
In his third issue on appeal, Kauffmann challenges the sufficiency of
the evidence supporting his conviction for aggravated harassment by a
prisoner. Specifically, Kauffmann asserts that the evidence was insufficient
to establish that he was in a “local detention facility” when the alleged
assault occurred. Reviewing the record in a light most favorable to the
Commonwealth as the verdict winner we find that there is sufficient evidence
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6
The Commonwealth’s brief does not address Kauffmann’s reliance on
Masters or Martorano or the applicability of section 3368.
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to uphold Kuaffmann’s conviction under Section 2703.1. In relevant part,
aggravated harassment by a prisoner is defined as follows:
A person who is confined in or committed to any local or county
detention facility, jail or prison or any State penal or correctional
institution or other State penal or correctional facility located in
this Commonwealth commits a felony of the third degree if he,
while so confined or committed to or while undergoing
transportation to or from such an institution or facility in or to
which he was confined or committed, intentionally or knowingly
causes or attempts to cause another to come into contact with
blood, seminal fluid, saliva, urine or feces, by throwing, tossing,
spitting or expelling such fluid or material.
18 Pa.C.S.A. § 2703.1.
There are two scenarios under which a person can be found to have
violated Section 2703.1. First, a person who has first been committed or
confined to an appropriate institution or facility may intentionally expose
another to bodily fluids while in the process of transport to or from that
location. See Commonwealth v. Leonburger, 932 A.2d 218, 222 (Pa.
Super. 2007). Under this scenario, a person does not violate Section 2703.1
if he exposes another to bodily fluids while being transported to a designated
facility for the first time. See id. In the alternative, a person may violate
this section if he exposes another to bodily fluids while he is committed or
confined to an appropriate institution or facility. See id.
In the present matter, the Commonwealth’s case was premised upon
Kauffmann spitting on the officers as he was being transported to the county
correctional facility. Therefore, Kauffman’s conviction for aggravated assault
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by a prisoner can only stand if the police station qualifies as a local detention
facility.
In Commonwealth v. Clark, 761 A.2d 190 (Pa. Super. 2000), a
panel of this Court held that a holding cell at a police station qualifies as a
local detention facility. See id., 761 A.2d at 192. Specifically, the panel
stated “[w]e now hold that the Carlise Police Station is a local or county
detention facility.” Id. It is clear from the holding of both Clark and
Leonburger that it is not the manner in which an individual is confined that
establishes what is a local detention facility, but rather, it is the nature and
character of the facility itself. See id.; see also Leonburger, 932 A.2d at
223.
Therefore, a police station that has any means for restricting the
freedom of movement of arrestees qualifies as a local detention facility. The
record indicates that Kauffmann was confined to the bolt in the wall like all
other arrestees who are confined in the police station. See N.T. 1/4/13 at
43. Unlike other police stations, this one does not have holding cells and this
constituted the normal procedure and location for confining criminals. See
id., at 41. Just as the police station lock-up in Clark was a local detention
facility, here, the police station’s lock-up is also a local detention facility.
As such, the statute applies to the instant circumstances and there
was sufficient evidence to uphold Kauffmann’s conviction. Kauffmann was
first confined to a local detention facility. While preparing to be transported
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to the county detention facility from the local detention facility from which
he was confined he then spat on the officers. Therefore, we find that there
was sufficient evidence to uphold his conviction of aggravated assault by a
prisoner.
Kauffmann next argues that the trial court usurped the fact-finding
authority of the jury. Specifically, Kauffmann contends that the trial court
committed an error of law by failing to instruct the jury to deliberate on the
issue of whether the police station constituted a local detention facility. The
United States Supreme Court has consistently held that the Sixth
Amendment requires “a jury determination that the defendant is guilty of
every element of the crime with which he is charged, beyond a reasonable
doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995). In reviewing a
trial court’s jury charge, we will determine if it adequately and accurately
reflected the law and was sufficient to guide the jury in its deliberation. See
Commonwealth v. Early, 546 A.2d 1236, 1240 (Pa. Super. 1985).
Specifically, we look to see if the trial court abused its discretion in
committing an error of law or clearly erroneous fact. See Commonwealth
v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006).
Here, the trial court instructed the jury that they needed to find that
three elements existed in order to convict Kauffmann of the crime of
aggravated harassment by a prisoner. See N.T., Trial, 1/4/13, at 223. First,
that Kauffmann was a prisoner at the time of the alleged exposure to bodily
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fluids. See id. Second, that Kauffmann caused Officers Ackerman and Gupko
to have contact with bodily fluids. See id. Third, that Kauffmann knowingly
or intentionally caused his bodily fluids to come into contact with the
officers. See id.
Instantly, we find that the trial court did not abuse its discretion while
charging the jury. First, as noted above, we conclude that as a matter of
law, the police station constituted a local detention facility under the statute.
Furthermore, the jury charge indicated that the jury had to find that
Kauffman was a prisoner in order to find him guilty. As such, we find that
the trial court did not err in instructing the jury. Accordingly, we conclude
that Kauffman’s fourth issue on appeal merits no relief.
In his fifth issue on appeal, Kauffman contends that the trial court
imposed an illegal sentence. In particular, Kauffmann argues that pursuant
to this Court’s decision in Commonwealth v. Musau, 69 A.3d 754 (Pa.
Super. 2013),7 a defendant convicted of a second DUI based upon a refusal
of a chemical blood alcohol content test could not be sentenced to a term of
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7
On October 29, 2014, the Governor signed Act 189 of 2014 into law (S.B.
1239, Session of 2014, Printer’s No. 2396). This is an Act amending various
provisions of the Motor Vehicle Code, 75 Pa.C.S.A., and in particular Section
3803(a), the section at issue in Musau. Act 189 amends Section 3803(a)
by changing “Notwithstanding the provisions of” to “Except as provided in.”
Section 4(1)(ii) of Act 189, states that the amendment to § 3803(a) shall
take effect immediately, meaning on October 29, 2014. Since Kauffman’s
sentence was entered prior to October 29, 2014, we apply the prior version
of the statute.
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imprisonment of greater than six months. The Commonwealth does not
address this issue in its brief. The trial court has not addressed this issue,
as Kauffmann is raising it for the first time on appeal.
In Musau, the defendant was convicted of DUI. As he had a prior
conviction for DUI conviction and because he refused chemical testing, the
trial court in Musau graded his offense as a first-degree misdemeanor
pursuant to 75 Pa.C.S.A. § 3803(b)(4). As a result, the defendant was
sentenced according to the sentencing guidelines for a first-degree
misdemeanor to a period of 90 days to five years’ incarceration. See id., at
756. This Court found that such a sentence was illegal because it exceeded
the statutory maximum of six months incarceration. See id.
Like in Musau, the trial court sentenced Kauffmann pursuant to the
guidelines for first-degree misdemeanors and imposed a sentence of 12 to
24 months’ incarceration. As such, the sentence imposed by the trial court is
illegal as it exceeds the six-month statutory maximum. Therefore, we must
vacate the judgment of sentence and remand to the trial court for re-
sentencing.
In his sixth and final issue on appeal, Kauffman asserts that his DUI
conviction was against the weight of the evidence presented at trial. In
addressing Kauffmann’s weight of evidence challenge, we first begin by
noting our standard of review.
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
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the evidence presented and determines the credibility of the
witnesses.
As an appellate court we cannot substitute our judgment for that
of the finder of fact. Therefore, we will reverse a jury’s verdict
and grant a new trial only where the verdict is so contrary to the
evidence as to shock one’s sense of justice. A verdict is said to
be contrary to the evidence such that it shocks one’s sense of
justice when “the figure of Justice totters on her pedestal,” or
when “the jury’s verdict, at the time of its rendition, causes the
trial judge to lose his breach, temporarily and causes him to
almost fall from the bench, then it is truly shocking to the
judicial conscience.”
Furthermore, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)
(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.
2007)) (citations omitted). It is up to the jury to weigh the evidence,
determine its credibility, and believe all, part, or none of it. See
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003).
Instantly we find that the trial court did not abuse its discretion, as the
weight of the evidence did not shock the trial judge’s conscience. In addition
to the fact that Kauffmann did not specifically consent to the blood test,
there is other evidence to support the trial court’s finding that the verdict
was not against the weight of the evidence. Appellant contends that the only
evidence to suggest that he refused the blood test was that he continued to
request to read the DL-26 form. See Appellant’s Brief, at 57. However, the
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evidence presented by the Commonwealth revealed that Kauffmann made
such requests in the room where the forms are no longer read or given to
defendants. See N.T., Trial, 1/4/13 at 185-86. Furthermore, when Kauffman
was asked to sit in order to give blood, Kauffmann continued to stand and
refused to cooperate. See id., at 105. The officers present explained to
Kauffmann that he either sit down and give blood or refuse the test by
continuing to stand. See id., at 110.
Additionally, the jury heard evidence that the DL-26 form was read
verbatim to Kauffmann. See id., at 105. There was no evidence presented
that Kauffmann did not understand the form that was read to him. In light of
the fact that Kauffmann continuously refused to sit for the test and insist to
read the form at a time when it was not appropriate to read the form, we
find that the jury’s verdict is not against the weight of the evidence.
Accordingly, the trial court did not abuse its discretion and Kauffmann’s final
issue on appeal merits no relief.
As our resolution of Kauffman’s appeal has upset the trial court’s
sentencing scheme, we vacate the judgment of sentence in its entirety and
remand for re-sentencing in accordance with this memorandum. See
Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. Super. 2008) (“Where
we determine that a sentence must be corrected, this Court has the option
of amending the sentence directly or remanding it to the trial court for re-
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sentencing. If a correction by this Court may upset the sentencing scheme
envisioned by the trial court, the better practice is to remand.”).
Conviction for violating 75 Pa.C.S.A. § 3111(a) reversed; all other
convictions affirmed. Judgment of sentence vacated and case remanded for
re-sentencing. Jurisdiction relinquished.
Judge Stabile joins in the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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