Com. v. Saltsman, J. ( 2016 )

J. S48024/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JASON SALTSMAN :
Appellant :
: No. 1719 WDA 2015
Appeal from the Judgment of Sentence October 12, 2015
In the Court of Common Pleas of McKean County
Criminal Division No(s): CP-42-CR-0000143-2015
BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED JULY 22, 2016
Appellant, Jason Saltsman, appeals from the October 12, 2015
Judgment of Sentence of six (6) months’ probation plus payment of
restitution entered in the Court of Common Pleas of McKean County
following his conviction after a bench trial of driving under the influence –
general impairment (“DUI”).1 After careful review, we conclude that (i) the
Commonwealth presented sufficient evidence to support the trial court’s
conviction; and (ii) the trial court erred as a matter of law in ordering
restitution. As such, we affirm in part and reverse in part Appellant’s
Judgment of Sentence.
1
75 Pa.C.S. § 3802 (a)(1) – General Impairment.
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We summarize the factual and procedural history of this case as
follows. On December 18, 2014, Port Allegany Police Officer Adam
Dickerson responded to a report of an altercation at the Sheetz convenience
store in Port Allegany, Pennsylvania. (N.T., 09/14/15, at 8). Upon arrival,
Officer Dickerson saw Appellant standing outside the store with two other
males. The two others walked away, and Officer Dickerson, who recognized
Appellant, began speaking with him. Id.
While speaking with Appellant, Officer Dickerson smelled an odor of
alcohol emanating from Appellant’s person. Id. Officer Dickerson noticed
that Appellant’s eyes were bloodshot and glassy, his speech was slower than
“normal,” and as Appellant spoke, his body swayed back and forth. Id. at
10. Appellant told the officer that he and his friends had recently returned
from the Roadside Saloon, where he had consumed “somewhere between
eight and ten beers over a three-hour time span.” Id. He further stated
that he drove himself to the Sheetz convenience store for food, and later
acknowledged that “he probably shouldn’t have been driving that evening.”
Id. at 11.
Officer Dickerson administered field sobriety tests to Appellant. During
the walk and turn test, Appellant raised his arms and failed to keep his feet
heel to toe, two indicia that a subject is over the legal limit for blood alcohol
content. Id. at 24. During the one-legged stand test, Appellant could not
hold his right foot in the air for more than two or three seconds. Id. at 15.
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Instead, he almost immediately put his foot back on the ground and lifted
his arms in an attempt to balance himself. Id. Based on his training as well
as his extensive experience with persons under the influence, Officer
Dickerson concluded that Appellant was too intoxicated to drive. Id. at 16.
Officer Dickerson placed Appellant under arrest and drove him to
Charles Cole Hospital for a blood test. Id. Appellant was charged with one
count each of DUI – General Impairment, and DUI – High Rate of Alcohol.
In a pre-trial motion, the Commonwealth withdrew Count 2, DUI – High Rate
of Alcohol. Id. at 4.
The trial court convicted the Appellant of DUI – General Impairment
and then sentenced Appellant to a term of six (6) months’ probation, plus
restitution in the amount of $101.00 for the blood testing fee. Appellant did
not file any post-sentence motions. He timely filed the instant appeal.
Appellant raises the following issues for review:
1. Was there sufficient evidence to convict Appellant for violating 75
Pa.C.S. § 3802(a)(1)?
2. Did the Trial Court make an error of law when it ordered that
Appellant pay for restitution to the PAPD in the amount of $101.00
for the blood testing fee, even though Count 2, 75 Pa.C.S. §
3802(b) was dismissed prior to trial?
Appellant’s Brief at 2.
In his first issue, Appellant avers that the Commonwealth failed to
prove beyond a reasonable doubt that he operated a vehicle while under the
influence. Specifically, Appellant emphasizes that the officer did not see him
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in the vehicle at any point, and did not find car keys anywhere on his
person. Id. at 3.
In reviewing the sufficiency of the evidence, the applicable standard of
review is as follows:
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact
to find that each element of the crimes charged is established
beyond a reasonable doubt. The Commonwealth may sustain its
burden of proving every element beyond a reasonable doubt by
means of wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt
raised as to the accused’s guilt is to be resolved by the fact-
finder. As an appellate court, we do not assess credibility nor do
we assign weight to any of the testimony of record. Therefore,
we will not disturb the verdict 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.
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)
(citations and quotations omitted).
Our Vehicle Code provides that “[a]n individual may not drive,
operate, or be in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the individual is rendered
incapable of safely driving, operating, or being in actual physical control of
the movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1); Commonwealth
v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011). The Commonwealth may
establish by the “totality of the circumstances” that a defendant drove,
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operated, or was in actual physical control of a motor vehicle. See
Commonwealth v. Johnson 833 A.2d 260, 266 (Pa. Super. 2003)
(concluding that there existed sufficient evidence to prove beyond a
reasonable doubt that the Defendant drove, operated, or was in actual
physical control of a vehicle, even though he was standing outside the
vehicle when the police arrived and the police never actually witnessed him
driving).
Following a thorough review of the record, the briefs of the parties, the
applicable law, and the opinion of the trial court, we conclude that there is
no merit to Appellant’s challenge to the sufficiency of the evidence. As
noted above, by his own admission, Appellant drove his vehicle while
impaired. He told Officer Dickerson that he had been drinking at a bar with
friends, had consumed between eight to ten beers over a three-hour time
span, and then drove his friends back to Port Allegany before he drove to
the Sheetz store. Appellant also admitted to Officer Dickerson that he
“probably shouldn’t have been driving that evening.” (N.T., 09/14/15, at
10).
This admission, when combined with Officer Dickerson’s observation of
Appellant’s impaired state, as well as Appellant’s inability to pass the field
sobriety tests, was sufficient to support Appellant’s DUI conviction. See
Johnson, 833 A.2d at 260.
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We next address Appellant’s assertion that the trial court erred when it
ordered that he pay restitution to the Port Allegany Police Department in the
amount of $101.00 for the blood testing fee. He avers that because the
District Attorney withdrew Count 2 prior to trial,2 the trial court lacked the
authority to order him to pay for the blood test. Appellant’s Brief at 7.
Before turning to the merits of this claim, we address the trial court’s
assertion that Appellant waived this claim. The trial court’s authority to
impose restitution goes to the legality of a sentence and therefore, cannot
be waived by Appellant’s failure to file a post-sentence motion. In the
Interest of M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that when a
court’s authority to impose restitution is challenged, it pertains to the
legality of a sentence and as such cannot be waived). Moreover, this Court
has long held that “[a]n illegal sentence can never be waived and may be
reviewed sua sponte by this Court.” Commonwealth v. Jacobs, 900 A.2d
368, 374 (Pa. Super. 2006) (en banc).
Resolution of this claim requires that we interpret 18 Pa.C.S. § 1106,
which governs restitution in criminal sentencing. Statutory interpretation is
a question of law, therefore, our standard of review is de novo, and our
scope of review is plenary. Brown v. Levy, 73 A.3d 514, 517 (Pa. 2013).
2
Appellant was charged with Count 2 under 75 Pa.C.S § 3802(b) – High
Rate of Alcohol.
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When ascertaining the meaning of a statute, if the language is clear, we give
the words their plain and ordinary meaning. See Id.
Restitution is controlled by Section 1106, which states:
Upon conviction for any crime wherein property has been stolen,
converted, or otherwise unlawfully obtained, or its value
substantially decreased as a direct result of the crime, or
wherein the victim suffered personal injury directly resulting
from the crime, the offender shall be sentenced to make
restitution in addition to the punishment prescribed therefor.
18 Pa.C.S. § 1106.
As applied here, Appellant did not steal, convert, or otherwise
unlawfully obtain any property and did not cause any personal injuries.
Accordingly, Section 1106 cannot apply, the trial court erred as a matter of
law in ordering restitution, and we reverse that part of the sentence.3
We, however, do not remand for resentencing because the restitution
portion of the sentence is not integral to the entire sentence as a whole: “[a]
remand is not necessarily appropriate when a portion of a sentence is
vacated on appeal, if the vacated portion of the sentence was not integral to
the penalty.” Commonwealth v. Thur 906 A.2d 552 (Pa. Super. 2002);
C.f. Commonwealth v. Deshong, 850 A.2d 712, 716-717. (Pa. Super.
2004) (remanding for resentencing where the trial court specifically
3
Because the trial court had no authority to impose restitution, we do not
need to address Appellant’s argument that, because the District Attorney
withdrew Count 2, the trial court erred in imposing restitution.
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indicated that it factored restitution into its decision to sentence Defendant
to a term of imprisonment below the sentencing guidelines).
In the instant case, the trial court sentenced Appellant to the
recommended sentence of probation without mentioning restitution as a
consideration in its choice of probation. (N.T. Sentencing, 10/12/15, at 5).
The imposition of restitution was thus not integral to the sentence imposed,
and our reversal of the restitution order does not upset the sentencing
scheme.
In consideration of the foregoing, we affirm the conviction and
sentence of probation, and reverse the restitution portion of the Judgment of
Sentence.
Conviction affirmed. Judgment of Sentence affirmed in part and
reversed in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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