Com. v. Vazquez-Vega, J. ( 2018 )

J-S49038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOEL VAZQUEZ-VEGA :
:
Appellant : No. 274 MDA 2018
Appeal from the Judgment of Sentence May 3, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-SA-0000068-2017
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 11, 2018
Appellant, Joel Vazquez-Vega, appeals from the judgment of sentence
entered in the Court of Common Pleas of Lebanon County following Appellant’s
conviction on the charges of driving while operating privileges are suspended
or revoked, 75 Pa.C.S.A. § 1543(a), and operating or permitting another to
operate a vehicle with unsafe equipment, 75 Pa.C.S.A. § 4107(b)(2).1 After
a careful review, we affirm.
____________________________________________
1 We recognize that Appellant filed his appeal prematurely, before the trial
court’s entry of a judgment of sentence as to the summary offense of
operating or permitting another to operate a vehicle with unsafe equipment
under 75 Pa.C.S.A. § 4107(b)(2). However, as the trial court imposed a
sentence of “no further penalty” on May 3, 2018, and Appellant, who filed his
counseled appellate brief on June 18, 2018, has averred no prejudice, we
decline to quash the appeal. See generally Pa.R.A.P. 905(a)(5). We have
corrected the appeal statement in the caption.
____________________________________
* Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history are as follows: Appellant was
issued a citation for driving while operating privilege is suspended or revoked,
as well as operating or permitting another to operate a vehicle with unsafe
equipment. A trial was held before Magistrate Judge Maria M. Dissinger, and
after the magistrate found Appellant guilty, she sentenced him to sixty (60)
days in prison and imposed a fine of $1,000 plus the costs of prosecution.
Appellant appealed to the trial court, and a trial was scheduled for
December 20, 2017. On that date, Appellant appeared with his counsel;
however, the trial court continued the trial. Specifically, on December 20,
2017, the trial court indicated: “There is a legal issue concerning a proper
docket entry and whether or not certain things were recorded. It’s going to
take some time to determine the proper status of that. I’m going to continue
this matter to January 31, 2018[.]” N.T., 12/20/17, at 2.
On January 31, 2018, at the beginning of the trial, Appellant’s counsel
requested a continuance. Specifically, the relevant exchange occurred:
[APPELLANT’S COUNSEL]: The defense is respectfully
requesting a continuance. The Commonwealth had previously
continued this because there had been a question of what the
actual citation had been for. It had been docketed under the UJS
docket that is not a 1543(a).
The Commonwealth requested a continuance the last time
we were here to provide that information to defense counsel.
Unfortunately, that information wasn’t provided until last week.
THE COURT: That is not right. Wait a minute. I’m reading
the citation. What does it say? 1543, 6503(a). Then I read, by
the way, [Appellant] has had 10 prior 1543(a)s?
[ADA]: That’s correct, Your Honor. This would be the 11th.
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THE COURT: Holy moly.
[APPELLANT’S COUNSEL]: UJS has it as a citation under
4107(b)(2) on this docket. The reason it was continued the last
time is the Commonwealth was to be able to provide the citation
saying it was a 1543(a).
Again, I just received that last week.
THE COURT: That is enough time. You could have—are you
ready to proceed?
[ADA]: I am, Your Honor, yes.
THE COURT: We’re not going to continue this.
N.T. 1/31/18, at 3-4.
The Commonwealth then presented the testimony of Lebanon City Police
Officer Derek Underkoffler, who testified that he was on duty and monitoring
traffic on the 400 block of North Ninth Street on July 28, 2017, when he
“observed [Appellant] drive past [him] perpendicularly with his windows
down[.]” Id. at 5. Officer Underkoffler testified that he recognized Appellant
from “previous contacts.” Id. The officer followed the vehicle and ran
Appellant’s driver’s license history and record through the Pennsylvania
Department of Transportation (“PennDOT”). Id. The information provided
from PennDOT revealed that Appellant’s driver’s license was suspended, and
in fact, he had ten prior convictions for driving while his license was suspended
or revoked. Id. at 6. Thus, after Officer Underkoffler stopped Appellant’s
vehicle, he cited Appellant with violating Section 1543(a).
Officer Underkoffler testified that he also cited Appellant with violating
Section 4107(b)(2) pertaining to operating a vehicle with unsafe equipment.
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Id. In this regard, he testified that he “observed on [Appellant’s]
vehicle…some type of screening/tinting material over the rear brake lights that
added like a darker tint to [both of] the brake lights.” Id. at 6-7. Officer
Underkoffler identified Appellant in court as the person he observed driving
the vehicle on July 28, 2017. Id. at 7.
On cross-examination, Officer Underkoffler testified as follows:
Q: Officer, you stated that you saw [Appellant] driving?
A: Correct.
Q: When you stopped the vehicle, was he still in the driver’s
seat?
A: He was walking away from the car.
Q: He was not in the car at that time?
A: Correct.
Q: Did he tell you that he had been driving?
A: I saw him driving.
Q: You had previous contact with him?
A: Driving, yes.
Q: He was walking away from the car with paper in his
hands?
A: I don’t recall if he had—what he had in his hands.
Q: Did you have a conversation with him?
A: Yes.
Q: He told you that he had not been driving; he was getting
something out of the car. Is that correct?
A: I don’t recall if that is what was said.
Q: Do you recall that conversation at all?
A: No.
Id. at 7-8.
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At this point, the Commonwealth rested its case, and Appellant testified
in his own defense with the assistance of an interpreter. Specifically, Appellant
testified that he was in his car on the date in question looking for some papers.
Id. at 9. He specifically denied that he drove the vehicle or that anyone drove
the vehicle; but rather, he testified the vehicle was parked in front of his home.
Id. at 9-10. He indicated that, when the officer approached him on the street,
the officer told him that he had followed his vehicle. Id. at 10. He noted that
the officer asked for his identification; however, the officer did not issue him
a citation. Id.
On cross-examination, the following occurred:
Q: [Appellant], you just heard the officer testify that you were
driving the car. Are you disputing that?
A: Yes.
Q: You are disputing that you were also driving under suspension
at the time?
A: I was not driving.
Id. at 11.
At the conclusion of all testimony, the trial court held the following:
After hearing, and in consideration of all testimony adduced,
including weighing the credibility of the parties, the Court finds
the testimony of the officer to be credible and consistent, and the
testimony of [Appellant] to be less than credible.
The Court finds [Appellant] has violated 75 [Pa.C.S.A. §]
1543(a) and that he has 10 prior convictions of this.
ACCORDINGLY, [Appellant] is found guilty. The Court
impose[s] a fine of $1,000.00 plus cost of suit and directs
[Appellant] be incarcerated in the Lebanon County Correctional
Facility immediately for a period of sixty (60) days.
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[Appellant] has a right to file an appeal to the Superior Court
of Pennsylvania within thirty (30) days[.]
Id. at 11-12.
On February 2, 2018, Appellant filed a counseled notice of appeal.
Thereafter, on April 11, 2018, the trial court filed an order indicating that it
failed to sentence Appellant on the summary charge of violating 75 Pa.C.S.A.
§ 4107(b)(2), and on May 3, 2018, the trial court formally sentenced Appellant
to “no further penalty.” All Pa.R.A.P. 1925(b) requirements have been met.
On appeal, Appellant first contends the evidence was insufficient to
sustain his convictions.
The standard of review for a sufficiency of the evidence claim is well-
settled:
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 the
evidence actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
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Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001)
(quotations and citations omitted). “If the factfinder reasonably could have
determined from the evidence adduced that all of the necessary elements of
the crime were established, then that evidence will be deemed sufficient to
support the verdict.” Commonwealth v. Charlton, 902 A.2d 554, 562
(Pa.Super. 2006) (citation omitted).
Section 1543(a) of the Vehicle Code provides:
(a) Offense defined.—Except as provided in subsection (b), any
person who drives a motor vehicle on any highway or trafficway
of this Commonwealth after the commencement of a suspension,
revocation or cancellation of the operating privilege and before the
operating privilege has been restored is guilty of a summary
offense and shall, upon conviction, be sentenced to pay a fine of
$200.
75 Pa.C.S.A. § 1543(a) (bold in original).
Section 4107(b)(2) of the Vehicle Code provides:
(b) Other violations.--It is unlawful for any person to do any of
the following:
***
(2) Operate, or cause or permit another person to operate, on any
highway in this Commonwealth any vehicle or combination which
is not equipped as required under this part or under department
regulations or when the driver is in violation of department
regulations or the vehicle or combination is otherwise in an unsafe
condition or in violation of department regulations.
75 Pa.C.S.A. § 4107(b)(2) (bold in original).
In the case sub judice, Appellant avers the Commonwealth failed to
prove that he was actually driving and/or operating his vehicle on the day in
question. Specifically, he avers that “[a]t trial, Patrolman Underkoffler did not
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stop Appellant while Appellant was in his vehicle. Patrolman Underkoffler only
observed Appellant at a vehicle which the officer allegedly saw being driven
by Appellant.” Appellant’s Brief at 12. We find no relief is due.
Viewing the evidence in the light most favorable to the Commonwealth,
as the verdict winner, Officer Underkoffler testified that he observed and
recognized Appellant as the driver of the subject vehicle on July 28, 2017.
While the officer admitted on cross-examination that Appellant had alighted
from the vehicle by the time the officer was able to stop his cruiser, he
reiterated that he saw Appellant actually driving the vehicle on the street prior
thereto. As was within its province, the trial court found Officer Underkoffler’s
testimony to be credible, and thus, we reject Appellant’s sufficiency of the
evidence claim. See DiStefano, supra.2
In his next claim, Appellant contends the trial court erred in denying his
request for a continuance. Specifically, Appellant avers that, despite the fact
the Commonwealth was granted a continuance on December 20, 2017, to
clarify what charges had been issued against Appellant, the Commonwealth
did not provide the document clarifying the charges until approximately five
weeks later (one week prior to the new trial date of January 31, 2018).
____________________________________________
2 In his “Statement of Questions Involved,” Appellant averred the trial court’s
verdict was against the weight of the evidence. However, he has failed to
develop the claim in any manner in his appellate brief, and therefore, we find
the issue to be waived.
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Appellant avers that, due to the length of time it took for the Commonwealth
to provide the documents, he was unable to adequately prepare for trial.
Our Supreme Court has explained our standard of review for denials of
requests for continuances.
The grant or denial of a motion for a continuance is within the
sound discretion of the trial court and will be reversed only upon
a showing of an abuse of discretion. As we have consistently
stated, an abuse of discretion is not merely an error of judgment.
Rather, discretion is abused when the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias, or ill-will, as shown by
the evidence or the record[.]
Commonwealth v. McAleer, 561 Pa. 129, 748 A.2d 670, 673 (2000)
(internal quotations and citations omitted).
The granting of continuances in criminal cases is governed by
Pa.R.Crim.P. 106, which provides, in pertinent part, the following:
(A) The court or issuing authority may, in the interests of justice,
grant a continuance, on its own motion, or on the motion of either
party.
***
(D) A motion for continuance on behalf of the defendant shall be
made not later than 48 hours before the time set for the
proceeding. A later motion shall be entertained only when the
opportunity therefor did not previously exist, or the defendant was
not aware of the grounds for the motion, or the interests of justice
require it.
Pa.R.Crim.P. 106(A), (D).
Here, in explaining the reasons it denied Appellant’s request for a
continuance, the trial court indicated the following:
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Reviewing the transcript, it is clear that both the reasons for
[Appellant’s] request and the reason for [the court’s] denial are
present. Appellant’s counsel requested the continuance because
he claims that he received the citation information the week prior
to the [trial]. Th[e] court believe[s] that counsel had sufficient
time within which to review the matter with Appellant.
Furthermore, the motion for continuance was untimely as
Appellant’s counsel brought the motion on the scheduled day of
the [trial] and failed to set forth any reasons why the opportunity
to bring the motion sooner did not exist, or that Appellant was not
aware of the grounds for the motion. Appellant’s counsel stated
that he received the information the week prior to the [trial], but
failed to file a motion within the 48 hour period prescribed by the
Rule. Therefore, [the court] believe[s] that Appellant’s claim that
the court abused its discretion in denying the motion for
continuance lacks merit.
Trial Court Opinion, filed 4/4/18, at 8-9.
We find no abuse of discretion in this regard. See McAleer, supra. As
the trial court found, Appellant made his request for a continuance on the day
of trial. Appellant did not provide any explanation indicating that the
opportunity to request the continuance sooner did not previously exit or that
he was not aware of the grounds for the motion. See Pa.R.Crim.P. 106(D).
Also, as it relates to the interests of justice, we note that “[a] bald allegation
of an insufficient amount of time to prepare will not provide a basis for reversal
of the denial of a continuance motion.” Commonwealth v. Ross, 57 A.3d
85, 91 (Pa.Super. 2012) (en banc). “Instead, an appellant must be able to
show specifically in what manner he was unable to prepare his defense or how
he wo/uld have prepared differently had he been given more time.” Id.
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(quotation omitted). Appellant failed in this regard, and thus, we find no merit
to his claim.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/11/2018
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