Commonwealth v. Best

J. S09001/15

2015 PA Super 151

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JAMES L. BEST, : No. 1628 WDA 2012

:

Appellant :

Appeal from the Judgment of Sentence, June 5, 2012,

in the Court of Common Pleas of Bedford County

Criminal Division at No. CP-05-CR-0000033-2011

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.

OPINION BY FORD ELLIOTT, P.J.E.: FILED JULY 16, 2015

Appellant appeals the judgment of sentence imposed following his

several driving under the influence (“DUI”) related convictions. Finding no

error, we affirm.

On the evening of December 14, 2010, appellant was involved in a

head-on collision with another vehicle on East Graceville Road in

Breezewood. When Trooper Matthew J. Bonin approached appellant,

appellant exhibited a strong odor of alcohol, slurred speech, and bloodshot,

glassy eyes. (Notes of testimony, 3/6/12 at 170.) Bonin asked appellant

how much he had had to drink, and appellant replied that he had consumed

three or four beers. (Id. at 169-170.) Bonin testified that appellant

admitted to him that he went into the opposite lane of travel, but that it was

caused by him hitting a patch of ice. (Id. at 168-169.) According to Bonin,

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appellant failed field sobriety tests. (Id. at 170-172.)1 Bonin then

investigated appellant’s car. Bonin did not possess a search warrant at the

time, but subsequently presented an application to a magisterial district

judge and was granted a warrant. (See Application for Search Warrant and

Authorization, 12/15/10.) In appellant’s vehicle, Bonin observed several

open beer cans and a whisky flask. (Id. at 173.) When Bonin opened the

flask, he observed a liquid that had an odor of alcohol. (Id. at 175-176.)

Bonin also found a pipe and small amount of marijuana in the console of the

vehicle. (Id. at 176-177.) Appellant refused chemical testing. (Id. at 191.)

When Bonin later went to appellant’s home to serve an arrest warrant, he

overheard appellant telling his mother that he had consumed five or

six beers. (Id. at 193.) Bonin testified that it was his opinion that appellant

was under the influence of alcohol, impaired, and incapable of safe driving.

(Id. at 192.)

Appellant stipulated at trial that his license was suspended at the time

of the accident, and that he had been designated as a “habitual offender” by

the Pennsylvania Department of Transportation as a result of prior offenses.

(Id. at 197-198.) No details were given to the jury as to the nature of those

prior offenses.

1

A video of the tests recorded by a mobile video recorder in the police

vehicle was played for the jury. (Id. at 186-187.)

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Testimony was also presented from the teenage occupants of the other

vehicle. Kyle Frankenberry was driving and his girlfriend McKenna Sipes was

in the passenger seat. (Id. at 113.) Frankenberry testified that just before

the crash, he attempted to swerve to avoid the collision. (Id. at 113, 115.)

Frankenberry was trapped in his vehicle after the crash and Sipes was

unconscious. (Id. at 116.) Frankenberry was taken by ambulance to the

hospital. (Id. at 117-118.) He remembered his dislocated leg being put

back in place in his hip, but he did not recall the subsequent surgery. (Id.

at 118.) Frankenberry spent seven days at this hospital and then five

additional days at another hospital. (Id. at 119.) Finally, Frankenberry

described the ongoing ill effects that the accident has had on his life. (Id. at

119-122.)

Sipes also testified. She remembered riding in the car that night, but

almost nothing about the accident; her first memory was hearing one of the

EMT’s talking to her in the car. (Id. at 144-148.) She did state that neither

she nor Frankenberry had had anything to drink that night and that

Frankenberry was driving normally. (Id. at 146-147.) Sipes was in the

hospital for six days and had hip surgery. (Id. at 149.) Sipes also

described the ill effects that the accident has had on her life. (Id. at

149-153.)

Dr. Corey Schutt testified as to his treatment of both Frankenberry and

Sipes for a dislocated hip and fractured pelvis. (Id. at 76-80.) He described

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the injuries as serious and the surgery as intense. (Id. at 76-77.) Another

trauma surgeon who treated the victims, Dr. Simon Lampard, also described

the victims’ various injuries. (Id. at 86-100.)

On March 7, 2012, the jury found appellant guilty of (2) counts of

aggravated assault by vehicle while DUI; (1) count of accidents involving

death or personal injury while not properly licensed; (1) count DUI general

impairment; (1) count of habitual offenders; (1) count of reckless driving;

(1) count of restriction on alcoholic beverages; (1) count driving under

suspension, DUI related; (1) count driving on roadways laned for traffic;

(1) count careless driving; (1) count of possession of a small amount of

marijuana for personal use; and (1) count of possession of drug

paraphernalia.2 On May 7, 2012, the court imposed an aggregate sentence

of 59 months’ to 20 years’ imprisonment. Post-sentence motions were

denied on September 17, 2012, and a timely notice of appeal was filed on

October 11, 2012.

Appellant raises the following issues on appeal:

I. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

OFFENSES OF AGGRAVATED ASSAULT BY

VEHICLE WHILE DUI, 75 Pa.C.S.A. § 3735.1,

COUNTS 1 AND 2, AS THE EVIDENCE

ADDUCED AT TRIAL FAILED TO PROVE:

(a) CAUSATION, NAMELY, FAILED TO PROVE

IN EACH COUNT THAT APPELLANT CAUSED

2

75 Pa.C.S.A. §§ 3735.1(a); 3742.1(a); 3802(a)(1); 6503.1; 3736(a);

3809(a); 1543(b)(1); 3309; 3714(a), respectively, and 35 P.S. § 780-

113(a)(31) and (a)(32), respectively.

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SERIOUS BODILY INJURY TO THE VICTIM IN

EACH COUNT AND/OR THAT THE ALLEGED

VIOLATION OF 75 Pa.C.S.A. § 3802 CAUSED

SERIOUS BODILY INJURY TO THE VICTIM IN

EACH COUNT; (b) INTENT, NAMELY,

NEGLIGENCE, IN EACH COUNT, AS

PROVIDED AT 18 Pa.C.S.A. § 302 (b)

AND/OR (c) IN EACH COUNT, FOR THE

NECESSARY LESSER-INCLUDED OFFENSE OF

AN ALLEGED VIOLATION OF 75 Pa.C.S.A.

§ 3802, AS PROVIDED AT 75 Pa.C.S.A.

§ 3802(a)(1), THAT APPELLANT IMBIBED A

SUFFICIENT AMOUNT OF ALCOHOL SUCH

THAT HE WAS RENDERED INCAPABLE OF

SAFE DRIVING, OPERATING OR BEING IN

ACTUAL PHYSICAL CONTROL OF THE

MOVEMENT OF THE VEHICLE.

II. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

OFFENSE OF ACCIDENT INVOLVING DEATH

OR PERSONAL INJURY WHILE NOT PROPERLY

LICENSED, 75 Pa.C.S.A. § 3742.1(a),

COUNT 3, AS THE EVIDENCE ADDUCED AT

TRIAL FAILED TO PROVE: (a) CAUSATION,

NAMELY, THAT APPELLANT CAUSED THE

ACCIDENT TO OCCUR AND/OR THAT

APPELLANT’S SUSPENDED/REVOKED

OPERATING PRIVILEGE HAD ANY CAUSATIVE

EFFECT UPON THE ACCIDENT; AND/OR

(b) INTENT, NAMELY, NEGLIGENCE AS

PROVIDED IN 18 Pa.C.S.A. § 302(b).

III. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

OFFENSE OF POSSESSION OF A SMALL

AMOUNT OF MARIJUANA, 35 P.S. § 780-113

(a)(31)(i), COUNT 4, AS THE EVIDENCE

ADDUCED AT TRIAL FAILED TO PROVE THAT

APPELLANT POSSESSED, ACTUALLY OR

CONTRUCTIVELY [sic], MARIJUANA.

IV. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

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OFFENSE OF POSSESSION OF DRUG

PARAPHERNALIA, 35 P.S. § 780-113(a)(32),

COUNT 5, AS THE EVIDENCE ADDUCED AT

TRIAL FAILED TO PROVIDE THAT APPELLANT

POSSESSED, ACTUALLY OR

CONSTRUCTIVELY, DRUG PARAPHERNALIA.

V. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

OFFENSE OF DUI-GENERAL IMPAIRMENT-

REFUSAL, 75 Pa.C.S.A. § 3802(a)(1), AS THE

EVIDENCE AT TRIAL FAILED TO PROVE:

(a) THAT APPELLANT IMBIBED A SUFFICIENT

AMOUNT OF ALCOHOL SUCH THAT HE WAS

RENDERED INCAPABLE OF SAFE DRIVING,

OPERATING OR BEING IN ACTUAL PHYSICAL

CONTROL OF THE MOVEMENT OF THE

VEHICLE; AND (b) THAT APPELLANT

REFUSED TO SUBMIT TO CHEMICAL

TESTING.

VI. APPELLANT CHALLENGED [sic] THE

SUFFICIENCY OF THE EVIDENCE TO CONVICT

HIM OF THE OFFENSE OF HABITUAL

OFFENDERS, 75 Pa.C.S.A. § 6503.1, COUNT

7, AS THE EVIDENCE ADDUCED AT TRIAL

FAILED TO PROVE APPELLANT HAD

ACCUMULATED THE REQUISITE NUMBER OF

CONVICTIONS FOR SEPARATE AND DISTINCT

OFFENSES DESCRIBED AND ENUMBERATED

[sic] IN 75 Pa.C.S.A. 1542(b) WITHIN A FIVE

(5) YEAR PERIOD.

VII. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

OFFENSE OF RECKLESS DRIVING,

75 Pa.C.S.A. § 3736(a), COUNT 8, AS THE

EDVIDENCE [sic] ADDUCED AT TRIAL FAILED

TO PROVE THAT APPELLANT ACTED WITH

WANTON OR WILLFUL DISREGARD FOR THE

SAFETY OF PERSONS OR PROPERTY.

VIII. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

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OFFENSE OF RESTRICTION ON ALCOHOLIC

BEVERAGES, 75 Pa.C.S.A. § 3809(a), COUNT

9, AS THE EVIDENCE ADDUCED AT TRIAL

FAILED TO PROVE THAT APPELLANT

POSSESSED, ACTUALLY OR

CONSTRUCTIVELY, AN OPEN BEVERAGE

CONTAINER OR CONSUMED A CONTROLLED

SUBSTANCE OR ALCOHOLIC BEVERAGE IN A

MOTOR VEHICLE WHILE THE MOTOR

VEHICLE WAS LOCATED ON A HIGHWAY IN

THIS COMMONWEALTH.

IX. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

OFFENSE OF DRIVING WHILE OPERATING

PRIVILEGE IS SUSPENDED OR REVOKED,

75 Pa.C.S.A. § 1543 (b)(1.1), COUNT 10, AS

THE EVIDENCE ADDUCEDC [sic] AT TRIAL

FAILED TO PROVE APPELLANT HAD ANY

AMOUNT OF ALCOHOL OR CONTROLLED

SUBSTANCE IN HIS BLOOD.

X. APELLANT [sic] CHALLENGES THE

SUFFICIENCY OF THE EVIDENCE TO CONVICT

HIM OF THE OFFENSE OF DRIVING ON

ROADWAYS LANED FOR TRAFFIC,

75 Pa.C.S.A. § 3309(1), COUNT 11, AS THE

EVIDENCE ADDUCED AT TRIAL FAILED TO

PROVE THAT APPELLANT FAILED TO

MAINTAIN THE VEHICLE AS NEARLY AS

PRACTICABLE ENTIRELY WITHIN A SINGLE

LANE AND/OR THAT APPELLANT MOVED

FROM THE LAND WITHOUT FIRST

ASCERTAINING THAT THE MOVEMENT COULD

BE DONE SAFELY.

XI. APPELLANT CHALLENGES THE SUFFICIENCY

OF THE EVIDENCE TO CONVICT HIM OF THE

OFFENSE OF CARELESS DRIVING,

75 Pa.C.S.A. § 3714, COUNT 12, AS THE

EVIDENCE ADDUCED AT TRIAL FAILED TO

PROVE THAT APPELLANT ACTED IN

CARELESS DISREGARD FOR THE SAFETY OF

PERSONS OR PROPERTY.

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XII. APPELLANT ASSERTS THAT THE JURY’S

VERDICTS ON COUNTS 1, 2, AND 3 WERE

AGAINST THE WEIGHT OF THE EVIDENCE

INASMUCH AS NO CREDIBLE TESTIMONY

WAS PRESENTED ON CAUSATION,

APPELLANT’S INTENT, THE VICTIMS’

SERIOUS BODILY INJURIES, THE

ALLEGATION THAT APPELLANT HAD IMBIBED

A SUFFICIENT AMOUNT OF ALCOHOL TO

RENDER HIM IN CAPABLE [sic] OF SAFE

DRIVING OR OPERATION OF THE VEHICLE

AND THE TESIMONY [sic] PRESENTED WAS

NOT CREDIBLE.

XIII. APPELLANT ASSERTS THAT THE JURY’S

VERDICT ON COUNT 5 WAS AGAINST THE

WEIGHT OF THE EVIDENCE INASMUCH AS

NO CREDIBLE TESTIMONY WAS PRESENTED

AS TO APPELLANT’S POSSESSION, ACTUALLY

OR CONSTRUCTIVELY, OF DRUG

PARAPHERNALIA AND THE TESTIMONY

PRESENTED WAS NOT CREDIBLE.

XIV. APPELLANT ASSERTS THE JURY’S VERDICT

ON COUNT 7 WAS AGAINST THE WEIGHT OF

THE EVIDENCE INASMUCH AS NO CREDIBLE

TESTIMONY WAS PRESENTED THAT

APPELLANT HAD ACCUMULATED THE

REQUISITE NUMBER OF CONVICTIONS FOR

SEPARATE AND DISTENCT [sic] OFFENSES

DESCRIBED AND ENUMERATED IN

75 Pa.C.S.A. § 1542(b) WITHIN A FIVE (5)

YEAR PERIOD.

XV. APPELLANT ASSERTS THAT THE COURT’S

VERDICT ON COUNT 6 WAS AGAINST THE

WEIGHT OF THE EVIDENCE INASMUCH AS

NO CREDIBLE TESTIMONY WAS PRESENTED

THAT APPELLANT POSSESSED, ACTUALLY OR

CONSTRUCTIVELY, MARIJUANA.

XVI. APPELLANT ASSERTS THAT THE COURT’S

VERDICT ON COUNT 8 WAS AGAINST THE

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WEIGHT OF THE EVIDENCE INASMUCH AS

NO CREDIBLE TESTIMONY WAS PRESENTED

THAT APPELLANT ACTED WITH A WANTON

OR WILLFUL DISREGARD FOR THE SAFETY

OF PERSONS OR PROPERTY.

XVII. APPELLANT ASSERTS THAT THE COURT’S

VERDICT ON COUNT 9 WAS AGAINST THE

WEIGHT OF THE EVIDENCE INASMUCH AS

NO CREDIBLE TESTIMONY WAS PRESENTED

THAT APPELLANT POSSESSED, ACTUALLY OR

CONSTRUCTIVELY, AN OPEN ALCOHOLIC

BEVERAGE CONTAINER OR CONSUMED A

CONTROLLED SUBSTANCE OR ALCOHOLIC

BEVERAGE IN A MOTOR VEHICLE WHILE THE

MOTOR VEHICLE WAS LOCATED ON A

HIGHWAY IN THIS COMMONWEALTH.

XVIII. APPELLANT ASSERTS THE COURT’S VERDICT

ON COUNT 10 WAS AGAINST THE WEIGHT

OF THE EVIDENCE INASMUCH AS NO

CREDIBLE TESTIMONY [WAS] PRESENTED

THAT APPELLANT HAD ANY AMOUNT OF

ALCOHOL OR CONTROLLED SUBSTANCE IN

HIS BLOOD.

XIX. APPELLANT ASSERTS THAT THE COURT’S

VERDICT ON COUNT 11 WAS AGAINST THE

WEIGHT OF THE EVIDENCE INASMUCH AS

NO CREDIBLE TESTIMONY WAS PRESENTED

THAT APPELLANT FAILED TO MAINTAIN THE

VEHICLE AS NEARLY AS PRACTICABLE

ENTIRELY WITHIN A SINGLE LANE AND/OR

THAT APPELLANT MOVED FROM THE LANE

WITHOUT FIRST ASCERTAINING THAT THE

MOVEMENT COULD BE DONE SAFELY.

XX. APPELLANT ASSERTS THAT THE COURT’S

VERDICT ON COUNT 12 WAS AGAINST THE

WEIGHT OF THE EVIDENCE INASMUCH AS

NO CREDIBLE TESTIMONY WAS PRESENTED

THAT APPELLANT ACTED IN CARELESS

DISREGARD FOR THE SAFETY OF PERSONS

OR PROPERTY.

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XXI. AS SET FORTH IN PARAGRAPHS 17, 18 AND

19 OF THE OMNIBUS PRE-TRIAL MOTION

FOR RELIEF, FILED OF RECORD ON MARCH 1,

2012, WHICH ARE INCORPORATED HEREIN

BY REFERENCE, AND RENEWED AT TRIAL,

APPELLANT WAS PREJUDICED BY THE

EVIDENCE OF HIS PRIOR RECORD INCIDENT

TO THE PROOF OF COUNTS 3 7 AND 10 IN

THE TRIAL OF THE UNSEVERED COUNTS 1,

2, 4, 5 AND 6, AND THE COURT ABUSED ITS

DISCRETION IN FAILING TO GRANT

SEVERANCE.

XXII. AS SET FORTH IN PARAGRAPHS 7, 8 AND 9

OF THE OMNIBUS PRE-TRIAL MOTION, FILED

OF RECORD ON MARCH 1, 2012, WHICH ARE

INCOPORATED [sic] HEREIN BY REFERENCE,

AND RENEWED AT TRIAL, THE COURT ERRED

BY OMITTING TO PROPERLY RULE ON THE

SUPPRESSION MOTION FOR THE VEHICLE

SEARCH AND TO SUPPRESS THE EVIDENCE

OF SUCH SEARCH AND THE FRUITS

THEREOF, INASMUCH AS THE WARRANTLESS

SEARCH OF THE VEHICLE WAS NOT SUPPORT

[sic] BY EXIGENCY OR OTHER SUFFICIENT

BASIS; INCLUDING, WITHOUT LIMITATION,

THE OFFICER’S OBSERVATION OF A SINGLE

BLUE PILL.

XXIII. AS SET FORTH IN PARAGRAPHS 7, 8, 9, 11,

13 AND 14 OF THE OMNIBUS PRE-TRIAL

MOTION, FILED OF RECORD ON MARCH 1,

2012, WHICH ARE INCORPORATED HEREIN

BY REFERENCE, AND RFENEWED [sic] AT

TRIAL, THE COURT ERRED BY OMITTING TO

PROPERLY RULE ON THE SUPPRESSION

MOTION FOR THE SEARCH WARRANT AND TO

SUPPRESS THE EVIDENCE OF SUCH SEARCH

AND THE FRUITS THEREOF, INASMUCH AS

THE SEARCH WARRANT’S AFFIDAVIT

DEPENDED UPON TAINTED INFORMATION

AND FAILED TO STATE PROBABLE CAUSE.

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XXIV. AS SET FORTH IN PARAGRAPHS 15 AND 16

OF THE OMNIBUS PRE-TRIAL MOTION, FILED

OF RECORD ON MARCH 1, 2012, WHICH ARE

INCORPORATED HEREIN BY REFERNCE [sic],

AND RENEWED AT TRIAL, THE COURT ERRED

BY OMITTING TO PROPERLY RULE ON THE

SUPPRESSION MOTION FOR THE

STATEMENTS AND TO SUPPRESS THE

EVIDENCE OF SUCH STATEMENTS AND THE

FRUITS THEREOF, INASMUCH AS, UNDER

THE TOTALITY OF THE CIRCUMSTANCES, THE

ORAL STATEMENTS WERE CUSTODIAL, AND

OBTAINED WITHOUT MIRANDA WARNINGS,

AND INVOLUNTARY.

XXV. THE COURT ERRED BY DENYING

APPELLANT’S REQUEST BOTH AT TRIAL TO

RE-OPEN THE CASE TO ALLOW APPELLANT

TO PRESENT A MATERIAL WITNESS BY

DENYING APPELLANT’S POST-SENTENCE

REQUEST FOR A NEW TRIAL BASED UPON

SAID ISSUE.

XXVI. THE COURT ERRED BY PERMITTING THE

COMMONWEALTH TO AMEND THE CRIMINAL

INFORMATION TO INCLUDE AN ADDITIONAL

COUNT OF AGGRAVATED ASSAULT BY

VEHICLE WHILE DUI, A COUNT OF

POSSESSION OF SMALL AMOUNT, AND A

COUNT OF POSSESSION OF DRUG

PARAPHERNALIA AS SAID AMENDMENTS

CAUSED PREJUDICE TO DEFENDANT.

XXVII. THE COURT ABUSED ITS DISCRETION AND

ERRED BY MISCALCULATING APPELLANT’S

PRIOR RECORD SCORE WITH RESPECT TO

APPELLANT’S PRIOR CONVICTIONS

INASMUCH AS APPELLANT ASSERTS THAT

THIS PRIOR RECORD SHOULD HAVE BEEN

CALCULATED AS A ONE (1), AND BY FAILING

TO GIVE PROPER CONSIDERATION TO

APPELLANT’S REHABILITATIVE NEEDS.

Appellant’s brief at 7-16.

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Before addressing the multitude of issues raised on appeal, we find it

necessary to reiterate former Justice Sandra Newman’s admonishment to all

appellate advocates who labor under the misguided belief that raising as

many issues as possible constitutes effective appellate advocacy:

The approach to appellate advocacy embarked on by

present counsel for Appellant brings to mind the

words of the Honorable Ruggero J. Aldisert of the

United States Court of Appeals for the Third Circuit:

With a decade and a half of federal

appellate court experience behind me, I

can say that even when we reverse a

trial court it is rare that a brief

successfully demonstrates that the trial

court committed more than one or two

reversible errors. I have said in open

court that when I read an appellant’s

brief that contains ten or twelve points, a

presumption arises that there is no merit

to any of them . . . [and] it is [this]

presumption . . . that reduces the

effectiveness of appellate advocacy.

Aldisert, “The Appellate Bar: Professional

Competence and Professional Responsibility-A View

From the Jaundiced Eye of the Appellate Judge,”

11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in

original).

Though much quoted by members of the judiciary,

this passage often “rings hollow,” as demonstrated

by the present case. While we certainly understand

the duty of the attorney to be a zealous advocate,

we pose that conduct such as what we presently

encounter does not advance the interests of the

parties and, if anything, is a disservice to the client.

See, e.g., United States v. Hart, 693 F.2d 286,

287 (3d Cir.1982) (“[b]ecause of the inordinate

number of meritless objections pressed on appeal,

spotting the one bona fide issue was like finding a

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needle in a haystack”); also Commonwealth v.

Ellis, 534 Pa. 176, 626 A.2d 1137, 1140 (1993)

(“[w]hile criminal defendants often believe that the

best way to pursue their appeals is by raising the

greatest number of issues, actually, the opposite is

true: selecting the few most important issues

succinctly stated presents the greatest likelihood of

success”). As observed by Justice Robert H.

Jackson:

Legal contentions, like the currency,

depreciate through over-issue. The mind

of an appellate judge is habitually

receptive to the suggestion that a lower

court committed an error. But

receptiveness declines as the number of

assigned errors increases. Multiplicity

hints at lack of confidence in any one . . .

[E]xperience on the bench convinces me

that multiplying assignments of error

will dilute and weaken a good case

and will not save a bad one.”

Jackson, “Advocacy Before the United States

Supreme Court,” 25 Temple L.Q. 115, 119 (1951)

(emphasis supplied). See also Smith v. Murray,

477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434

(1986) (“Th[e] process of winnowing out weaker

arguments on appeal and focusing on those more

likely to prevail, far from being evidence of

incompetence, is the hallmark of effective appellate

advocacy”); Jones v. Barnes, 463 U.S. at 745, 751-

52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)

(observing that “[e]xperienced advocates since time

beyond memory emphasized the importance of

winnowing out weaker arguments on appeal and

focusing on one central issue if possible, or at most

on a few key issues”); Buehl v. Vaughn, 166 F.3d

163, 174 (3d Cir.1999) (commenting that “[o]ne

element of effective appellate strategy is the

exercise of reasonable selectivity in deciding which

arguments to raise”). Though we are mindful of the

ramifications of our decisions in capital cases, no

circumstance gives carte blanche for the borderline

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abuse of the legal system as represented by the

conduct of Appellant’s present attorney in this

matter.

Commonwealth v. Robinson, 864 A.2d 460, 479-480 n.28 (Pa. 2004),

cert. denied, Robinson v. Pennsylvania, 546 U.S. 983 (2005).

This form of appellate advocacy is a disservice to court and client alike.

It not only creates a presumption that there are no issues of merit, it also

invites cursory review. With these thoughts in mind, we turn to the issues

on appeal.

In his first eleven issues, appellant challenges the sufficiency of the

evidence as to each of his twelve convictions. Our standard of review is as

follows:

The standard we apply in 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. In applying [the above]

test, we may not weigh the evidence and substitute

our judgment for the fact-finder. In addition, we

note that the facts and circumstances established by

the Commonwealth need not preclude every

possibility of innocence. 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. The

Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence.

Moreover, in applying the above test, the entire

record must be evaluated and all evidence actually

received must be considered. Finally, the [finder] of

fact while passing upon the credibility of witnesses

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and the weight of the evidence produced, is free to

believe all, part or none of the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014), quoting

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa.Super. 2014) (citations

omitted; bracketed material in original).

In Issue I, appellant challenges the sufficiency of the evidence as to

aggravated assault by vehicle while DUI. This offense is defined as follows:

(a) Offense defined.--Any person who

negligently causes serious bodily injury to

another person as the result of a violation of

section 3802 (relating to driving under

influence of alcohol or controlled substance)

and who is convicted of violating section 3802

commits a felony of the second degree when

the violation is the cause of the injury.

75 Pa.C.S.A. § 3735.1(a).

McKenna Sipes testified that Kyle Frankenberry was driving normally,

and Frankenberry testified that he had to swerve to try to avoid colliding

with appellant’s vehicle. Trooper Bonin testified that appellant admitted

entering the opposite lane of travel. From this, jurors could conclude that

Frankenberry was driving his vehicle in the appropriate lane and that

appellant had negligently entered Frankenberry’s lane of travel. Bonin also

testified that appellant was under the influence of alcohol and incapable of

safe travel at the time of the accident. Finally, both Frankenberry and Sipes

described the continuing effects their injuries have had on their lives,

including ongoing pain when standing. Both also described their inability to

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perform athletically as they had in the past. The Vehicle Code describes

serious bodily injury as follows:

“Serious bodily injury.” Any bodily injury which

creates a substantial risk of death or which causes

serious, permanent disfigurement or protracted loss

or impairment of the function of any bodily member

or organ.

75 Pa.C.S.A. § 102.

The injuries described by Frankenberry and Sipes amount to

protracted impairment of their ability to stand and perform athletically.

Therefore, the jury could have concluded that appellant was driving under

the influence, that his inebriation caused him to drive negligently, and that

his negligence resulted in serious bodily injury to two separate victims.

There was sufficient evidence to support two separate counts of aggravated

assault by vehicle while DUI.

In Issue II, appellant challenges the sufficiency of the evidence as to

accidents involving death or personal injury while not properly licensed. This

offense is defined as follows:

(a) Offense defined.--A person whose operating

privilege was disqualified, canceled, recalled,

revoked or suspended and not restored or who

does not hold a valid driver’s license and

applicable endorsements for the type and class

of vehicle being operated commits an offense

under this section if the person was the driver

of any vehicle and caused an accident resulting

in injury or death of any person.

75 Pa.C.S.A. § 3742.1(a).

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From our previous discussion, there was evidence from which the jury

could conclude that appellant caused the accident at issue and that the

victims suffered personal injury. Appellant stipulated at trial that his license

was suspended at the time of the accident. Therefore, the evidence was

sufficient to support appellant’s conviction for accidents involving death or

personal injury while not properly licensed.

In Issue III, appellant challenges the sufficiency of the evidence as to

possession of a small amount of marijuana for personal use. Appellant’s

argument in this regard questions whether there was any amount of

marijuana found and whether possession was adequately proven.

Trooper Bonin testified that the pipe contained a small amount of marijuana.

That is sufficient to prove that appellant possessed some amount of

marijuana. We also find that the evidence supported a finding of

constructive possession by appellant:

Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law

enforcement. Constructive possession is an

inference arising from a set of facts that possession

of the contraband was more likely than not. We

have defined constructive possession as conscious

dominion. We subsequently defined conscious

dominion as the power to control the contraband and

the intent to exercise that control. To aid

application, we have held that constructive

possession may be established by the totality of the

circumstances.

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa.Super. 2014), quoting

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012), appeal

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denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation

omitted).

The marijuana was found in the center console of appellant’s vehicle,

which is immediately beside and well within the reach of appellant.

Moreover, appellant was the only person in the vehicle. Clearly, appellant,

and only appellant, had conscious dominion over the marijuana. There was

sufficient evidence to support appellant’s conviction for possession of a small

amount of marijuana for personal use.

In Issue IV, appellant challenges the sufficiency of the evidence as to

possession of drug paraphernalia. Appellant questions whether appellant

possessed the marijuana pipe that was found. For the reasons previously

stated, we find that the evidence was sufficient to conclude that appellant

constructively possessed the marijuana pipe. Thus, there was sufficient

evidence to support appellant’s conviction for possession of drug

paraphernalia.

In Issue V, appellant challenges the sufficiency of the evidence as to

DUI general impairment. Trooper Bonin testified as to the indications that

appellant was under the influence of alcohol and that he was of the opinion

that appellant was incapable of safe driving. This is sufficient to support

appellant’s conviction for DUI general impairment. Appellant’s argument

points to equivocating testimony by Bonin or to other evidence that

appellant may not have been under the influence. As such, the argument

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goes to the weight of the evidence and not the sufficiency. It is well settled

that in reviewing the sufficiency of the evidence, an appellate court may not

weigh the evidence and substitute its judgment for the fact-finder.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014). Finally, to the extent that

appellant’s issue questions whether he refused chemical testing, Bonin

testified that he refused and then signed a document to that effect.

In Issue VI, appellant challenges the sufficiency of the evidence as to

habitual offenders. Appellant has abandoned this issue on appeal.

In Issue VII, appellant challenges the sufficiency of the evidence as to

reckless driving. Reckless driving is defined as follows:

(a) General rule.--Any person who drives any

vehicle in willful or wanton disregard for the

safety of persons or property is guilty of

reckless driving.

75 Pa.C.S.A. § 3736(a).

The testimony of Frankenberry and Sipes, as well as Bonin’s testimony

that appellant admitted entering the opposite lane of travel, is sufficient to

support appellant’s conviction for reckless driving.

In Issue VIII, appellant challenges the sufficiency of the evidence as to

restriction on alcoholic beverages. This offense is defined as follows:

(a) General rule.--Except as set forth in

subsection (b), an individual who is an

operator or an occupant in a motor vehicle

may not be in possession of an open alcoholic

beverage container or consume a controlled

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substance as defined in the act of April 14,

1972 (P.L.233, No.64), known as The

Controlled Substance, Drug, Device and

Cosmetic Act, or an alcoholic beverage in a

motor vehicle while the motor vehicle is

located on a highway in this Commonwealth.

75 Pa.C.S.A. § 3809(a) (footnote omitted).

Trooper Bonin testified that appellant had several open beer cans in

his car. Bonin also testified that he opened the whiskey flask and that it

contained a liquid with an odor of alcohol. This was sufficient evidence to

support appellant’s conviction for restriction on alcoholic beverages.

In Issue IX, appellant challenges the sufficiency of the evidence as to

driving under suspension, DUI related. Appellant has abandoned this issue

on appeal.

In Issue X, appellant challenges the sufficiency of the evidence as to

driving on roadways laned for traffic. This offense is defined as follows:

Whenever any roadway has been divided into two or

more clearly marked lanes for traffic the following

rules in addition to all others not inconsistent

therewith shall apply:

(1) Driving within single lane.--A vehicle

shall be driven as nearly as practicable

entirely within a single lane and shall not

be moved from the lane until the driver

has first ascertained that the movement

can be made with safety.

75 Pa.C.S.A. § 3309.

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The testimony of Frankenberry and Sipes, as well as Bonin’s testimony

that appellant admitted entering the opposite lane of travel, is sufficient to

support appellant’s conviction for driving on roadways laned for traffic.

In Issue XI, appellant challenges the sufficiency of the evidence as to

careless driving. Careless driving is defined as follows:

(a) General rule.--Any person who drives a

vehicle in careless disregard for the safety of

persons or property is guilty of careless

driving, a summary offense.

75 Pa.C.S.A. § 3714(a).

Again, the testimony of Frankenberry and Sipes, as well as Bonin’s

testimony that appellant admitted entering the opposite lane of travel, is

sufficient to support appellant’s conviction for careless driving.

In Issues XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and XX, appellant

contends that various of his convictions are against the weight of the

evidence.3 We note our standard of review:

A motion for a new trial based on a claim that the

verdict is against the weight of the evidence is

addressed to the discretion of the trial court.

Commonwealth v. Widmer, 560 Pa. 308, 319, 744

A.2d 745, 751-52 (2000); Commonwealth v.

Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189

(1994). A new trial should not be granted because

of a mere conflict in the testimony or because the

judge on the same facts would have arrived at a

different conclusion. Widmer, 560 Pa. at 319-20,

744 A.2d at 752. Rather, “the role of the trial judge

is to determine that ‘notwithstanding all the facts,

3

Appellant has abandoned on appeal the weight of the evidence claims

raised at Issues XIV and XVIII.

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certain facts are so clearly of greater weight that to

ignore them or to give them equal weight with all the

facts is to deny justice.’” Id. at 320, 744 A.2d at

752 (citation omitted). It has often been stated that

“a new trial should be awarded when the jury’s

verdict is so contrary to the evidence as to shock

one’s sense of justice and the award of a new trial is

imperative so that right may be given another

opportunity to prevail.” Brown, 538 Pa. at 435, 648

A.2d at 1189.

An appellate court’s standard of review when

presented with a weight of the evidence claim is

distinct from the standard of review applied by the

trial court:

Appellate review of a weight claim is a

review of the exercise of discretion,

not of the underlying question of

whether the verdict is against the

weight of the evidence. Brown, 648

A.2d at 1189. Because the trial judge

has had the opportunity to hear and see

the evidence presented, an appellate

court will give the gravest consideration

to the findings and reasons advanced by

the trial judge when reviewing a trial

court’s determination that the verdict is

against the weight of the evidence.

Commonwealth v. Farquharson, 467

Pa. 50, 354 A.2d 545 (Pa.1976). One of

the least assailable reasons for granting

or denying a new trial is the lower court’s

conviction that the verdict was or was

not against the weight of the evidence

and that a new trial should be granted in

the interest of justice.

Widmer, 560 Pa. at 321-22, 744 A.2d at 753

(emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).

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In these issues, appellant revisits the various evidence presented on

each conviction and how certain evidence mitigates against conviction.

However, as noted in Clay, this court does not reweigh the evidence; but

rather, this court only reviews how the trial court has analyzed the weight of

the evidence. Consequently, we will not discuss the various evidence as to

each conviction, but will only review the trial court’s review.

In its opinion, the trial court identified the correct standard by which it

was to assess the weight of the evidence (“when the jury’s verdict is so

contrary to the evidence as to shock one’s sense of justice”), and then

concluded that the jury’s verdict was consistent with the evidence. (Trial

court opinion, 9/17/12 at 3.) We find that the trial court acted within its

discretion.

In Issue XXI, appellant argues that the trial court erred in failing to

sever from his trial the counts pertaining to accidents involving death or

personal injury while not properly licensed, habitual offenders, and driving

under suspension, DUI related, because proof of these crimes requires

revealing to the jury that appellant has committed prior bad acts. Our

standard of review states, “[w]hether to join or sever offenses for trial is

within the trial court’s discretion and will not be reversed on appeal absent a

manifest abuse thereof, or prejudice and clear injustice to the defendant.”

Commonwealth v. Armstrong, 74 A.3d 228, 233 (Pa.Super. 2013),

appeal denied, 84 A.3d 1061 (Pa. 2014).

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We find no prejudice or clear injustice to appellant. Appellant’s license

suspension and habitual offender status were presented to the jury by way

of stipulation, and no detail of any of appellant’s prior offenses was revealed.

As for the driving under suspension, DUI related, which would improperly

reveal to the jury that appellant had previously committed DUI, this was a

summary offense tried separately by the court.

In Issue XXII, appellant asserts that the trial court erred in failing to

suppress the fruits of Trooper Bonin’s warrantless vehicle search which

appellant contends was not supported by exigency or other basis.

Our standard of review in addressing a challenge to

the denial of a suppression motion is limited to

determining whether the suppression court’s factual

findings are supported by the record and whether

the legal conclusions drawn from those facts are

correct. Because the Commonwealth prevailed

before the suppression court, we may consider only

the evidence of the Commonwealth and so much of

the evidence for the defense as remains

uncontradicted when read in the context of the

record as a whole. Where the suppression court’s

factual findings are supported by the record, we are

bound by these findings and may reverse only if the

court’s legal conclusions are erroneous. Where . . .

the appeal of the determination of the suppression

court turns on allegations of legal error, the

suppression court’s legal conclusions are not binding

on an appellate court, whose duty it is to determine

if the suppression court properly applied the law to

the facts. Thus, the conclusions of law of the courts

below are subject to our plenary review.

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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted), cert. denied, Jones v. Pennsylvania, 562 U.S. 832 (2010).

We find that Trooper Bonin had probable cause to search appellant’s

car. Appellant had just been involved in a vehicular accident and appeared

to be under the influence of alcohol. As this implicated the violation of

several offenses, Bonin had probable cause to search the car for further

evidence of DUI. Our supreme court recently decided that Pennsylvania’s

automobile exception to the warrant requirement was in accord with current

federal jurisprudence; that is, that only probable cause and no exigency

beyond the inherent mobility of a motor vehicle is required to permit a

warrantless vehicle search. Commonwealth v. Gary, 91 A.3d 102 (Pa.

2014).4 The trial court properly declined to suppress the evidence here.

In Issue XXIII, appellant argues that the search warrant that was

subsequently granted for his car was not supported by probable cause and

the evidence should have been suppressed. Our analysis of the preceding

issue leads us to conclude that there is no merit here.

4

The decision in Gary was decided by a six-justice court. In an Opinion

Announcing the Judgment of the Court, former Justice McCaffery, speaking

for former Chief Justice Castille and Justice Eakin, adopted the federal

automobile exception for warrantless vehicle searches. Chief Justice Saylor

wrote a Concurring Opinion that joined the lead Opinion in adopting the

federal rule, but expressed concerns with the adoption of a bright line rule.

Justice Todd wrote a Dissenting Opinion that was joined by Justice Baer.

Former Justice Orie Melvin did not participate.

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In Issue XXIV, appellant claims that his on-the-scene statement to

Trooper Bonin that he had three or four beers and his later statement to his

mother that he had five or six beers should have been suppressed as he was

in custody at the time of each statement and had not been given Miranda

warnings.5

Statements made during custodial interrogation are

presumptively involuntary, unless the accused is first

advised of her Miranda rights. Commonwealth v.

DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001),

appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).

Custodial interrogation is “questioning initiated by

law enforcement officers after a person has been

taken into custody or otherwise deprived of [her]

freedom of action in any significant way.” Miranda

[v. Arizona], supra [384 U.S. 436] at 444, 86 S.Ct

[1602] at 1612, 16 L.Ed.2d [694] at 706 [(1966)].

“[T]he Miranda safeguards come into play whenever

a person in custody is subjected to either express

questioning or its functional equivalent.”

Commonwealth v. Gaul, 590 Pa. 175, 180, 912

A.2d 252, 255 (2006), cert. denied, 552 U.S. 939,

128 S.Ct. 43, 169 L.Ed.2d 242 (2007).

Commonwealth v. Kunkle, 79 A.3d 1173, 1179-1180 (Pa.Super. 2013)

appeal denied, A.3d (Pa. April 22, 2015), quoting

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008).

First, appellant was not in custody at the time he made his statement

at the accident scene. Trooper Bonin had just arrived at the accident scene

and was not even aware yet that any crime had occurred when he asked

appellant how much he had had to drink. Second, it is unclear from the

5

Miranda v. Arizona, 384 U.S. 436 (1966).

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testimony whether Trooper Bonin had yet arrested appellant when he made

the second statement to his mother at their residence, but there was no

reason to suppress the second statement either. Appellant was not

responding to a question from Bonin or any other police officer, but either

made the statement spontaneously, or made it upon inquiry from his

mother. (Notes of testimony, 3/6/12 at 193-194.) Thus, even if appellant

was in custody at the time, he was not being subjected to police

interrogation. The statements were properly not suppressed.

In Issue XXV, appellant contends that the trial court erred in failing to

permit the record to be re-opened so that the defense could present an

unsubpoened defense witness who appeared at court after the record had

been closed. This witness was Tim College who would have testified that on

the day of the accident appellant met him at a bar where they each

consumed one beer and then went to College’s residence where they each

consumed another beer. (Notes of testimony, 3/7/12 at 197-198.)

Apparently, appellant was with Mr. College until 4:30 p.m., and the accident

occurred at 7:30 p.m. (Id. at 198.)

“Under the law of this Commonwealth a trial court has the discretion to

reopen a case for either side, prior to the entry of final judgment, in order to

prevent a failure or miscarriage of justice.” Commonwealth v. Baldwin, 8

A.3d 901, 903 (Pa.Super. 2010), affirmed, 58 A.3d 754 (Pa. 2012), quoting

Commonwealth v. Tharp, 575 A.2d 557, 558-559 (Pa. 1990). We find no

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abuse of discretion in the trial court’s choice not to re-open the record.

College’s testimony carried little exculpatory value because he could not

account for appellant’s activity between 4:30 and 7:30, a three-hour period

during which appellant had sufficient time to consume a large amount of

alcohol.

In Issue XXVI, appellant asserts that the trial court erred in permitting

the Commonwealth to amend the criminal information to add a second count

of aggravated assault by vehicle while DUI, possession of a small amount of

marijuana, and possession of drug paraphernalia.

Relief is only proper where the amendment

prejudices the defendant. See [Commonwealth v.

Sinclair, 897 A.2d 1218 (Pa.Super.2006)] at 1223.

A court must consider a number of factors in

determining whether an amendment results in

prejudice:

(1) whether the amendment changes the

factual scenario supporting the charges;

(2) whether the amendment adds new

facts previously unknown to the

defendant; (3) whether the entire factual

scenario was developed during a

preliminary hearing; (4) whether the

description of the charges changed with

the amendment; (5) whether a change in

defense strategy was necessitated by the

amendment; and (6) whether the timing

of the Commonwealth’s request for

amendment allowed for ample notice and

preparation.

Commonwealth v. Veon, 109 A.3d 754, 768 (Pa.Super. 2015), quoting

Sinclair.

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We see no prejudice to appellant. The order amending the criminal

information was dated September 29, 2011, and was entered October 4,

2011. Trial did not begin until March 6, 2012; thus, appellant had over five

months to prepare for these new charges. Moreover, as to the most serious

charge, aggravated assault by vehicle while DUI, appellant was already on

notice that he had to prepare a defense to an initial count of this offense,

and any defense to this additional count would likely be nearly identical to

the initial count. We see no merit here.

In Issue XXVII, appellant contends that the trial court miscalculated

his prior record score and that his sentence is excessive by failing to give

proper consideration to his rehabilitative needs. Preliminarily, we observe

that appellant has abandoned on appeal the issue pertaining to the

calculation of his prior record score; hence, we are reviewing the

discretionary aspects of appellant’s sentence only.

Such a challenge must be considered a petition for

permission to appeal. Commonwealth v. Hoch,

936 A.2d 515, 518 (Pa.Super. 2007). The Rules of

Appellate Procedure mandate that, to obtain review

of the discretionary aspects of a sentence, the

appellant must include in his brief a Concise

Statement of Reasons Relied Upon for Allowance of

Appeal. See Pa.R.A.P. 2119(f). This statement

must “raise a substantial question as to whether the

trial judge, in imposing sentence, violated a specific

provision of the Sentencing Code or contravened a

‘fundamental norm’ of the sentencing process.”

Commonwealth v. Flowers, 950 A.2d 330, 331

(Pa.Super. 2008).

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011).

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Appellant has included in his brief the requisite concise statement in

which he asserts that the sentence imposed was so manifestly excessive as

to constitute too severe a punishment. We note that this has been held to

raise a substantial question. Id. Thus, we will review the discretionary

aspects of appellant’s sentence.

The trial court announced at sentencing that it had a pre-sentence

report. (Notes of testimony, 5/7/12 at 3.) As such, the court is presumed

to have considered all relevant sentencing factors:

Where pre-sentence reports exist, we shall continue

to presume that the sentencing judge was aware of

relevant information regarding the defendant’s

character and weighed those considerations along

with mitigating statutory factors. A pre-sentence

report constitutes the record and speaks for itself.

In order to dispel any lingering doubt as to our

intention of engaging in an effort of legal purification,

we state clearly that sentencers are under no

compulsion to employ checklists or any extended or

systematic definitions of their punishment procedure.

Having been fully informed by the pre-sentence

report, the sentencing court’s discretion should not

be disturbed. This is particularly true, we repeat, in

those circumstances where it can be demonstrated

that the judge had any degree of awareness of the

sentencing considerations, and there we will

presume also that the weighing process took place in

a meaningful fashion. It would be foolish, indeed, to

take the position that if a court is in possession of

the facts, it will fail to apply them to the case at

hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Thus, there is no merit to appellant’s assertion that the court did not

consider his rehabilitative needs in imposing his sentence. Moreover, the

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trial court stated that because of positive factors in appellant’s behalf, it

would not impose an aggravated range sentence. (Notes of testimony,

5/7/12 at 58.) However, the court also reviewed appellant’s horrendous

driving record, which included at least one prior DUI, and concluded that any

sentence less than one at the top of the standard range would depreciate

the seriousness of the victims’ injuries and the offenses involved. (Id. at

58-59.) As such, we find no abuse of discretion in appellant’s sentence.

Accordingly, having found no merit to the issues on appeal, we will

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/2015

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