Com. v. Davis, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEFF L. DAVIS
Appellant No. 1849 MDA 2013
Appeal from the Judgment of Sentence February 27, 2012
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000396-2011
CP-01-CR-0000544-2011
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED APRIL 09, 2015
Appellant, Jeff L. Davis, appeals from the judgment of sentence
entered by the Honorable Thomas R. Campbell, Court of Common Pleas of
Adams County, after a jury convicted Davis of driving under the influence
(“DUI”) and resisting arrest. After careful review, we affirm the convictions,
but vacate the sentence and remand for resentencing.
Davis was involved in a single vehicle accident on April 9, 2011.
Officer Chad Topper of the Cumberland Township Police Department
responded to the scene and observed that Davis, who was sitting in the
driver’s seat of the vehicle, was the only person present. When the window
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*
Former Justice specially assigned to the Superior Court.
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of the vehicle was down, Officer Topper observed a strong odor of alcohol
coming from the vehicle. After awakening Davis, Officer Topper noticed that
Davis’s speech was slurred.
Officer Topper believed that Davis was intoxicated and prepared to
arrest Davis. However, Davis became combative, and refused to comply
with Officer Topper’s directions. Consequently, Officer Topper requested
back up before proceeding with Davis. Other officers who responded to
Officer Topper’s request for back up all testified that they also believed that
Davis was severely intoxicated based upon their own observations.
After placing Davis under arrest, Officer Topper advised Davis that he
was being transported to a local hospital for blood testing. Davis indicated
that he did not consent to the test, and continued to be combative with
Officer Topper. After Officer Topper finished reading the DL-26 implied
consent form to Davis, Davis refused to sign the form. Davis was
subsequently charged with DUI – general impairment with a finding of
implied consent refusal, and one count of resisting arrest. After the jury
convicted him on both counts, the trial court sentenced Davis to 60 months
in an intermediate punishment program. This timely appeal followed.
On appeal, Davis raises two arguments for our review. First, he
contends that his convictions were not supported by sufficient evidence, or
alternatively, that they were against the weight of the evidence. The
argument section of Davis’s appellate brief under this argument consists of a
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single paragraph that sets forth our standard of review for claims of
insufficiency of the evidence. See Appellant’s Brief, at 9. No authority is
cited for his argument on the weight of the evidence. Nor is there any
attempt to apply the cited authority for sufficiency of the evidence to facts
and circumstance of this case. Further, there is no attempt to identify any
specific element that was not established by the evidence presented by the
Commonwealth at trial. As Davis has not made even a rudimentary effort at
presenting an argument on the sufficiency or weight of the evidence, we find
these issues waived. See Commonwealth v. Veon, ___ A.3d ___, ___,
2015 WL 500887, *15 (Pa. Super., filed February 6, 2015)
In his second argument, Davis asserts that the sentence imposed by
the trial court was illegal.1 In Commonwealth v. Musau, 69 A.3d 754 (Pa.
Super. 2013),2 the defendant was convicted of DUI. As he had a prior DUI
conviction and because he refused chemical testing, the trial court in Musau
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1
While Davis includes a Pa.R.A.P. 2119(f) statement in his brief and argues
that the trial court abused its discretion by imposing an excessive sentence,
he also argues that the sentence imposed “exceeded the statutory
maximum[.]” Appellant’s Brief, at 8.
2
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 Davis’s
sentence was entered prior to October 29, 2014, we apply the prior version
of the statute.
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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.
In the present case, the trial court’s sentence of 60 months in
intermediate punishment is likewise illegal. See 42 Pa.C.S.A. § 9763(a) (the
term of county intermediate punishment imposed cannot exceed the
maximum term for which the defendant could be imprisoned) The
Commonwealth urges this Court to ignore Musau due to the Supreme Court
of Pennsylvania’s grant of review of this issue in Commonwealth v.
Mendez, 71 A.3d 250 (Pa. 2013). However, the Supreme Court has
recently dismissed the appeal in Mendez as having been improvidently
granted. See 2015 WL 1421402 (Pa., March 30, 2015). As such, the
opinion of this Court in Musau remains binding law. We therefore vacate
the judgment of sentence and remand for re-sentencing.
Convictions affirmed. Judgment of sentence vacated and remanded
for proceedings consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2015
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