Com. v. Halcovage, W. (memorandum)

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J-S71029-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILLIAM HALCOVAGE Appellant No. 564 MDA 2013 Appeal from the Judgment of Sentence March 5, 2013 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001309-2011 BEFORE: PANELLA, J., MUNDY, J., and PLATT, J.* MEMORANDUM BY MUNDY, J.: FILED JANUARY 07, 2014 Appellant, William Halcovage, appeals from the March 5, 2013 -served, imposed after he was found guilty of driving under the influence (DUI) general impairment, DUI - high rate of alcohol, driving an unregistered vehicle, and operation of a vehicle without official certificate of inspection.1 After careful review, we affirm the judgment of sentence. The trial court summarized the relevant facts of this case as follows. [O]n Friday, July 15, 2011, at approximately 11:06 p.m., [Millersville Borough Police Officer Jason ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 75 Pa.C.S.A §§ 3802(a), 3802(b), 1301(a), and 4703, respectively. J-S71029-13 A. Klouser (Officer Klouser)] stopped [Appellant] after having observed [Appellant] driving a purple Plymouth sedan traveling from North Fifth Street to Klouser] followed behind the vehicle to the intersection of South Fourth Street and Edgar Lewis Street where he observed the vehicle to have an expired Pennsylvania registration on the license plate showing June 11. [Officer Klouser] activated the Spencer Streets and continued to follow [Appellant] until [Appellant] finally brought his vehicle to a stop. Klouser] noted that the vehicle has an expired certificate of inspection showing June 2010. [Officer Klouser] then engaged [Appellant] in conversation and testified credibly that he smelled a strong odor of an alcoholic beverage emitting from [Appellant] with red, blood-shot and glassy eyes. After further er Klouser] then asked [Appellant] to exit the vehicle and submit to standard field sobriety testing. [Officer Klouser] administered a portable breath test with the result of 0.13% blood alcohol [(BAC)]. Prior to administering the test, [Appellant] also documents while seated in his car. [Officer Appellant] had failed the field sobriety testing whereupon he placed [Appellant] in custody and transported him to the Schuylkill Medical Center South Emergency room where [Appellant] consented to the submission of a blood sample for chemical testing. The phlebotomist, Tanya Hicks, also testified along with [] Judith Veghte. Ms. Veghte[] is supervisor. These witnesses also testified credibly and introduced exhibits verifying the result of the [BAC] being 0.13% Trial Court Opinion, 6/5/13, at 4-6. -2- J-S71029-13 Appellant was subsequently charged with DUI general impairment, DUI - high rate of alcohol, and the aforementioned summary offenses in connection with this incident. On November 27, 2012, Appellant proceeded to a bench trial, at the conclusion of which he was found guilty of the two summary offenses. Following the submission of memoranda by the parties in support of their respective positions, the trial court found Appellant guilty of the remaining two DUI counts on December 6, 2012. Order, 12/6/12. See Trial Court On March 5, 2013, Appellant was sentenced to an aggregate term of 48 hours to credit for time-served. This timely appeal followed on April 3, 2013.2 On appeal, Appellant raises the following issues for our review. 1. Was the testimony of the arresting officer improperly admitted to establish probable cause for subsequent blood test and driver opinion and evidence was based upon field sobriety test[,] which he was not certified to conduct? 2. Was [Appellant] denied fundamental due process because of the denial of the jury trial because his arrest for driving under the influence carried a maximum of six (6) months in prison? ____________________________________________ 2 Appellant and the trial court have complied with Pa.R.A.P. 1925. -3- J-S71029-13 determine whether he has properly preserved them for appellate review. Pennsylvania Rule of Appellate Procedure 1925(b) requires that statements identify each ruling or error that the appellant intends to challenge with Pa.R.A.P. the Statement will be deemed to include every subsidiary issue contained Id. at 1925(b)(4)(v). Finally, any issues not raised in accordance with Rule 1925(b)(4) will be deemed waived. Id. at 1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a bright-line rule. Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998)] preserve their claims for appellate review, [a]ppellants must comply whenever the trial court -4- J-S71029-13 orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) Id.] at 309. Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted). In the instant matter, Appellant filed his Rule 1925(b) statement, in statement, Appellant raised five distinct claims of trial court error. See he trial court, in turn, filed its Rule 1925(a) opinion on June 5, 2013, addressing each of these claims in seriatim. See Trial Court Opinion, 6/5/13, at 4-8. Our review reveals that the two claims Appellant raises in his appellate brief were not amongst those asserted in his Rule 1925(b) statement; rather, Appellant has raised these issues for the first time on appeal. Appellant had the opportunity to include these issues in his Rule 1925(b) statement. As a ve in Hill, we deem these issues waived. See Hill, supra.3 ____________________________________________ 3 preserved his second issue, we conclude that said issue is meritless. See ¶ 2(a). established a fixed dividing line between petty and serious offenses: those crimes carrying [a sentence of] more than six months [ ] are serious [crimes] and those carrying [a sentence of six months or] less are petty Commonwealth v. Kerry, 906 A.2d 1237, 1239 (Pa. Super. 2006) (citation and internal quotation marks omitted; brackets in original). (Footnote Continued Next Page) -5- J-S71029-13 of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/7/2014 (Footnote Continued) _______________________ [T]he right to a jury trial under the Sixth Amendment to the United States Constitution and Article I, §§ 6, 9 of the Pennsylvania Constitution applies when a criminal defendant faces a sentence of imprisonment exceeding six months. Charging a defendant with two counts of a petty offense, where each count has a maximum term of imprisonment of six months or less, and therefore carries an aggregate potential prison term greater than six months, does not transform the multiple petty offenses into one serious offense where the jury trial right would apply. Hill v. Randolph, 24 A.3d 866, 873 (Pa. Super. 2011), citing Commonwealth v. McMullen, 961 A.2d 842, 847 (Pa. 2008) (internal citations omitted). Herein, the charges of DUI general impairment and DUI - high rate of alcohol are ungraded misdemeanors and carry a maximum sentence of six by jury on these two charges. -6-

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