Com. v. Briganti, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID JAMES BRIGANTI :
:
Appellant : No. 763 WDA 2019
Appeal from the Judgment of Sentence Entered March 27, 2019
In the Court of Common Pleas of Potter County Criminal Division at
No(s): CP-53-CR-0000119-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 4, 2020
Appellant appeals from the Judgment of Sentence of 48 hours’ to 6
months’ incarceration imposed following a stipulated bench trial on DUI-High
Rate of Alcohol,1 DUI-General Impairment,2 and related traffic offenses. He
challenges the court’s refusal to sentence him to the accelerated rehabilitative
disposition (“ARD”) program, and asserts that the court erred in admitting
evidence pertaining to a prior DUI arrest during a pre-trial hearing on his
Motion to Find the District Attorney Abused His Discretion in Denying ARD and
to Compel ARD. After careful consideration, we affirm.
The trial court set forth the facts underlying Appellant’s convictions as
follows:
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1 75 Pa.C.S. § 3802(b).
2 75 Pa.C.S. 3802(a)(1).
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[O]n April 14, 2018, [Pennsylvania State Police (“PSP”)] Trooper
Andrew Book was on patrol on Costello Road, Portage township,
Potter County, [ ] when he observed [Appellant] operating his
Jeep Wrangler on said roadway. Trooper Book observed
[Appellant’s] vehicle cross the double yellow line on four occasions
within one mile. After these observations[,] Trooper Book
activated his emergency lighting and [Appellant] pulled his vehicle
onto the berm of the road without activating his turn signal.
Upon approaching the vehicle[,] Trooper Book detected a strong
odor of alcohol emanating from [Appellant] and [Appellant] was
observed to have bloodshot eyes. [Appellant] denied drinking any
alcohol, then admitted to drinking “a couple” having recently left
a local bar. After administering field sobriety tests which produced
clues of impairment, [Appellant] was placed under arrest and he
submitted to a blood draw at UPMC Cole Hospital in Coudersport[.]
The blood was transported to NMS laboratory for analysis and the
results of the testing indicated a blood alcohol concentration in
[Appellant’s] blood of .147 at the time of the operation of the
vehicle.
Trial Ct. Findings, Discussion and Order, dated Feb. 7, 2019, at 1-2.
The Commonwealth filed a criminal information. On June 11, 2018,
Appellant submitted an application for ARD to the Potter County District
Attorney (“DA”), disclosing that in August 2013, the State of Ohio had charged
him with a DUI.3 “The DUI was dismissed and [he] plead[ed] guilty to reckless
operation.” Appellant’s Application for Accelerated Rehabilitation, dated
6/11/[184] - Comm. Exh. 1.
On June 12, 2018, the Court Reporting Network (“CRN”) of Potter
County provided the DA with its Pennsylvania Alcohol Highway Safety Program
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3 Appellant lives in Ohio.
4 Appellant dated the Application as signed in 1970, the year of his birth.
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report (“CRN report”) indicating that Appellant’s BAC was .14% at the time of
his arrest and his Mortimer Filkins5 score was 40, which indicated that
Appellant is a “problem drinker.” See CRN Report, dated 6/12/18 - Comm.
Exh. 4.
After reviewing Appellant’s ARD application and the CRN report, the DA
advised Appellant’s attorney by letter dated June 14, 2018, that he would not
submit Appellant’s case for ARD, noting Appellant’s self-reported DUI arrest
history. The DA stated that he would, however, suggest intermediate
punishment to the sentencing court.
Upon Appellant’s request, the DA, Appellant’s counsel, and Appellant
thereafter met on August 1, 2018, where Appellant’s counsel requested
reconsideration of the prosecutor’s ARD decision. See N.T. Hearing, 10/4/18,
at 6. In response, the DA requested that Appellant provide more information
about the dismissal of the Ohio DUI. Appellant’s counsel refused to allow
Appellant to provide any further information and the DA told them that he
himself would contact the relevant Ohio police department before
reconsidering his ARD decision.
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5 The Mortimer Filkins test is a questionnaire officials give to DUI offenders
during a post-arrest evaluation to determine whether they are problem
drinkers. See Driver Risk Inventory (DRI), an Inventory of Scientific Findings
at https://www.ncjrs.gov/pdffiles1/Photocopy/142543NCJRS.pdf (reviewing
various driver risk assessments given to DUI offenders).
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Immediately after that conference, that same day, Appellant filed a
Motion to Find District Attorney Abused his Discretion in denying ARD, and
sought an Order to compel ARD. See Motion, filed 8/1/18.
The court held a hearing on the Motion on October 4, 2018. The DA
testified that he sought the Ohio documents to assist in the reconsideration of
his ARD decision after the meeting with Appellant and his counsel, stating:
“What I was looking for[:] was there a suppression hearing? Was there a
reason that DUI was legally invalid? Was there a problem with the testing
machine for blood or breath, give me something mitigating so I can consider
ARD.” N.T. Hearing at 6-7. Appellant’s counsel objected to that testimony as
“speculation and also my client has right to remain silent[.]” Id. at 7. The
court noted, inter alia, that there was no jury present and stated: “I’m not
going to sustain the objection at this point.” Id.
The following exchange then occurred:
DA: I think the Court needs to know the whole truth of this
conversation and to figure out why I had to go extra mile to get
certain information. At that point, Your Honor, [Appellant] was
being[,] I’ll say[,] cooperative. [Appellant’s counsel] immediately
took a defensive posture, would not share any information on the
prior DUI to give me some mitigating factors to consider. If you
want me to bend on my decision, I informed them, I will gladly
consider that, give me something to go on, give me a reason and
he would not. I said then finally fine we’ll do it hard way. I told
him I was going to contact Wickliffe Police Department in Ohio [to]
get all the background information on the arrest, once I receive
that I would share it with them. So I did receive that information
from Wickliff Police Department. I shared this with [Appellant’s
counsel].
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[Appellant’s Counsel]: I’ll object to admission of that, it’s
all hearsay.
DA: Not being offered to prove the matter asserted, but what
was my state of mind in reviewing this matter for an ARD.
[Appellant’s Counsel]: His state of mind was June 14th, Your
Honor, I’ll object to those documents.[6]
The Court: This letter comes in after your letter indicating that
you would not offer him the ARD on June 14, [DA]?
DA: Correct. Then we had a criminal conference where I told
them I would consider, but you have to give me some mitigating
factors. Tell me more about the Ohio arrest because there’s not
much information, we don’t have any information at that point
because it’s not on his rap sheet, it’s very very general on the ARD
application that you just had [a] DUI arrest that was pled down.
So I told them I would reconsider, give mitigating factors. . . .
Id. at 7-8 (emphasis added).
The judge then decided to receive the letter and police report obtained
from the Ohio police department “conditionally with the objection noted,”
stating that he would consider Appellant’s objection “over the next couple
hours.” N.T., 10/4/18, at 9.
After the DA testified as to some of the contents of the Ohio police
report, the defense counsel made one more non-specific objection. See id.
at 9 (stating “I object to the facts of an allegation that had never been proven
____________________________________________
6Arguably, this statement alludes to the relevancy of the testimony. However,
because Appellant did not specifically assert an objection based on relevance,
any challenge to relevancy is waived. See Commonwealth v.
Baumhammers, 960 A.2d 59, 84 (Pa. 2008) (stating “the absence of a
specific contemporaneous objection renders the appellant's claim waived”
(citation omitted)).
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true from another state”). The court again recognized Appellant’s continuing
objection. Id. at 10. The DA then put all of the allegations and information
contained in the Ohio police report in the record through his testimony.
The DA also testified that in rendering his June 14, 2018 ARD decision,
he reviewed the CRN report on June 12, 2018, showing Appellant’s high BAC
level of .14% in connection with the instant charge, and his risk assessment
score of 40 indicating that Appellant is a “problem drinker.” Id. at 11-12. See
also CRN Report - Comm. Exh. 4.
In addition, the DA stated that, in general, when he renders an ARD
decision, he considers the protection of society by looking at an offender’s
driving history, poor behavior, and “the fact that they were given previous
breaks in the past and did not seem to help and did not seem to assist in
rehabilitation.” N.T. Hearing at 15. He also considers whether an offender is
from out of state because there would be no “hands on supervision” and “our
officers are not going to go to Ohio to test him.” Id. at 15-16. The DA also
stated that he consistently errs on the side of caution with respect to the
public’s safety when considering whether ARD submission is appropriate for a
DUI offender. See id. at 17 (stating “when it comes to DUI and certain
circumstances I’m probably overly strict.”).
On November 16, 2018, the court denied Appellant’s Motion to Find
District Attorney Abused his Discretion and declined to compel ARD. See Tr.
Ct. Opinion and Order, dated 11/16/18, at 3 (unpaginated). The court
emphasized the DA’s reliance on Appellant’s ARD Application and the CRN
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report, id. at 1, before concluding, after a review of case law, that the DA’s
stated reasons for denying ARD were “logical.” Id. at 3. In its Opinion, the
trial court did not mention the Ohio police report or the prosecutor’s testimony
regarding that report.7
Appellant waived a jury trial and entered a stipulation for the trial court
to consider only PSP Trooper Book’s affidavit of probable cause and the
Pennsylvania laboratory report to render its verdict on the DUI charge. On
February 7, 2019, the court found Appellant guilty of the above DUI offenses,
as well as one count each of Disregard of Traffic Lane, Turning Movements
and Required Signals, and Careless Driving.8
On March 27, 2019, after reviewing a pre-sentence investigation report,
the court sentenced Appellant to, inter alia, 48 hours’ to 6 months’
incarceration. Appellant filed a Post Sentence Motion that the court denied on
May 1, 2019.
Appellant timely appealed to this Court. He raises the following issues
for our review:
1. The trial court abused its discretion by allowing the
Commonwealth to introduce hearsay evidence into the record
without any foundation related to the charges [Appellant]
previously faced in Ohio[.]
____________________________________________
7Nothing in the record indicates that the court explicitly ruled on Appellant’s
outstanding objections.
8 75 Pa.C.S. §§ 3309(1), 3334(a), and 3714(a), respectively.
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2. The Commonwealth abused its discretion in denying Appellant
entry into the ARD program[.9]
Appellant’s Br. at 3.
In his first issue, Appellant asserts that the court erred in admitting over
his objection the DA’s testimony about the Ohio police report and the report
itself during the pre-trial hearing on his Motion to Find District Attorney Abused
His Discretion in refusing to submit the case for ARD. Appellant’s Brief at 9.
He contends that he raised objections based on hearsay, lack of foundation,
and Confrontation Clause violations. Id. at 12. However, our review indicates
he raised a specific objection based only on hearsay.10
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9 This Court reviews trial court decisions, not the exercise of the
Commonwealth’s discretion. However, despite the wording of his question
presented, it is clear from Appellant’s Brief that he is challenging the trial
court’s denial of his Motion seeking a finding that the DA abused his discretion
in refusing to submit the case for ARD and the court’s denial of an order from
the trial court compelling ARD.
10 Appellant directs our attention to page 10 of the hearing transcript
pertaining to his objection to the admission of the police report, as transcribed
on page 9, which was to the admission of “the facts of an allegation that had
never been proven true from another state.” N.T. Hearing at 9. This objection
does not contain a specific objection that we could interpret as lack of
foundation or a Confrontation Clause violation. Accordingly, these evidentiary
challenges pertaining to lack of foundation and Confrontation Clause violations
are waived. Commonwealth v. Tha, 64 A.3d 704, 713 (Pa. Super. 2013)
(citation omitted)(“We have long held that ‘[f]ailure to raise a
contemporaneous objection to the evidence at trial waives that claim on
appeal.”). See also Pa.R.A.P. 302 (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”); Commonwealth
v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017) (noting that an appellant
may not raise “a new and different theory of relief” for the first time on appeal
(quoting Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super. 1983)).
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Our standard of review concerning a challenge to the admissibility of
evidence is as follows:
The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (internal
citations and quotation marks omitted).
Hearsay is an out-of-court statement offered for the truth of the matter
asserted. Pa.R.E. 801(c). It is generally inadmissible unless it falls within one
of the exceptions to the hearsay rule delineated in the Rules of Evidence.
Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). “An out-of-court
statement is not hearsay when it has a purpose other than to convince the
fact finder of the truth of the statement[,]” such as motive or the effect on
the listener. Id. See Pa.R.E. 803 (noting exceptions to hearsay rule).
Appellant argues that the DA’s testimony about the Ohio police report
and the report itself were hearsay admitted for the truth of the matter, that
is “[t]he [DA] was clearly using this information about Appellant’s prior issue
in Ohio against Appellant in his consideration for Appellant being eligible for
the ARD program.” Appellant’s Br. at 14. Appellant’s argument warrants no
relief.
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The DA’s testimony included a statement of how he approaches
sentencing recommendations with respect to DUI offenders in general, with
particular emphasis on his heightened concern for the safety of the public.
The evidence to which Appellant specifically objected as hearsay pertained to
the DA’s process taken, including obtaining information from Ohio, in response
to Appellant’s request for reconsideration of the DA’s ARD decision. The
Commonwealth did not offer that evidence for the truth of the matter
asserted. Therefore, the evidence was not hearsay and the court did not abuse
its discretion in admitting it.
Moreover, in its Opinion and Order denying Appellant’s Motion, the trial
court made no mention of the Ohio police report or any other evidence
pertaining to the District Attorney’s post-June 14, 2018 actions. Rather, the
court noted only that the District Attorney testified under oath that he
reviewed the results of the June 12, 2018 CRN report in conjunction with
Appellant’s ARD application before writing the June 14, 2018 letter informing
Appellant’s attorney he would not recommend ARD. See Opinion and Order,
dated Nov. 16, 2018. Thus, it appears that the court did not put any weight
on the Ohio evidence in rendering its denial of Appellant’s Motion to Find the
District Attorney Abused His Discretion. Accordingly, even if we were to
conclude that evidence was inadmissible hearsay, we would consider the
court’s error as harmless because the court gave it no weight.
In his second issue, Appellant contends that the Commonwealth abused
its discretion in denying ARD submission because “Appellant was never
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previously convicted of any prior DUI offenses or an[y] other misdemeanor or
felony offenses.” Appellant’s Br. at 17. Rather, “Appellant was previously
charged with a DUI offense that was dismissed and he pled to the offense of
Reckless Operation. . . . [T]he District Attorney used this previous non-
conviction against Appellant to preclude [him] from the ARD Program.”
Appellant’s Br. at 17.
ARD is a privilege; it is not a right owed to a defendant.
Commonwealth v. Lutz, 495 A.2d 928, 933 (Pa. 1985). As the Pennsylvania
Supreme Court has recognized:
Our restrictive approach to admission to ARD programs is
intentional and purposeful, for it ensures that no criminal
defendant will be admitted to ARD unless the party to the case
who represents the interests of the Commonwealth, the district
attorney, has made the determination that a particular case is best
handled by suspending the prosecution pending the successful
completion of a diversionary ARD program. Society has no interest
in blindly maximizing the number of ARD's passing through the
criminal justice system, and the criminal defendant has no right
to demand that he be placed on ARD merely because any
particular offense is his first.
Id.Thus, under our rules of criminal procedure, district attorneys “have the
sole discretion in any criminal case, including drunk driving cases, to move for
the admission of a defendant into ARD.” Id. at 932. See also Pa.R.Crim.P.
310 (“After criminal proceedings in a court case have been instituted, the
attorney for the Commonwealth may move . . . that a case be considered
for [ARD].” (emphasis added)). Our review is informed by the following:
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[T]he decision to submit the case for ARD rests in the sound
discretion of the district attorney, and absent an abuse of that
discretion involving some criteria for admission to ARD wholly,
patently and without doubt unrelated to the protection of society
and/or the likelihood of a person's success in rehabilitation, such
as race, religion or other such obviously prohibited considerations,
the attorney for the Commonwealth must be free to submit a case
or not submit it for ARD consideration based on his view of what
is most beneficial for society and the offender.
Lutz, supra at 935 (emphasis in original).
“While the district attorney’s discretion is broad, and appellate review of
such decisions is narrow, the district attorney’s power is not completely
unfettered and is subject to the following judicially imposed restrictions: 1) an
open, on-the-record specification of reasons which are 2) related to society’s
protection or the defendant’s rehabilitation.” Commonwealth v. Morrow,
650 A.2d 907, 910–11 (Pa. Super. 1994) (citation omitted).
Appellant argues that the DA abused his discretion “in denying a person
placement on ARD for merely being charged with a DUI in the past and only
being convicted of a summary traffic ticket equivalent.” Appellant’s Br. at 20.
In addition to ignoring the other evidence considered by the DA, Appellant
does not support this statement with citation to any case law that holds the
DA may not consider a prior charge at all in rendering an ARD decision.
In fact, in rendering his ARD decision, the DA considered not only
Appellant’s admission that he had been charged with a DUI in Ohio in 2013,
but also the CRN report, which indicated that Appellant had a serious drinking
problem. The DA then balanced those facts against public safety concerns.
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The trial court characterized the prosecutor’s reasoning as “logical” and our
review of the record supports that conclusion. The record demonstrates that
the prosecutor’s decision to decline ARD submission did not “involve[e] some
criteria . . . wholly, patently and without doubt unrelated to the protection of
society and/or the likelihood of a person's success in rehabilitation, such as
race, religion or other such obviously prohibited considerations.” Lutz, supra
at 935. Accordingly, this issue merits no relief.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2020
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