Com. v. Celento, D. ( 2021 )

J-S20027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID CELENTO :
:
Appellant : No. 1143 MDA 2020
Appeal from the Judgment of Sentence Entered March 3, 2020
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000848-2018
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED: AUGUST 5, 2021
Appellant, David Celento, appeals from the judgment of sentence
entered in the Huntingdon County Court of Common Pleas, following his bench
trial convictions for driving under the influence of alcohol or a controlled
substance (“DUI”), careless driving, operating without rear lights, failure to
use a turn signal, and operating with unsafe equipment.1 We affirm.
The trial court set forth the relevant facts of this case as follows:
Patrolman Dustin Border of the Huntingdon Borough Police
Department (HBPD) testified that in the early morning of
October 28, 2018 he and Corporal David Funk were on
routine patrol in the borough. At or around 1:18 AM he said,
they were behind a jeep on Fourteenth Street that turned
right onto Washington Street without first signaling. The
officers followed the Jeep east and observed that the brake
lights were not working when the vehicle slowed and
stopped at stop signs. Consequently, Officer Border
____________________________________________
1 75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), 4303(b), 3334(a), and 4107(b)(2).
J-S20027-21
testified he initiated a traffic stop on the 800 block of
Washington Street.
Officer Border related that he approached the Jeep and
made contact with [Appellant], the operator and only person
in the vehicle. At the direction of Officer Border, [Appellant]
produced his registration and proof of insurance. He had
difficulty finding his driver’s license according to [Officer]
Border but eventually produced it. Officer Border indicated
he detected the odor of alcohol when [Appellant] talked,
also, he said [Appellant’s] eyes were bloodshot, and his
speech was slurred.
[Appellant] admitted to the officer that he had been drinking
that evening and admitted that he consumed three drinks.
Officer Border said he asked [Appellant] to exit his vehicle
in order to perform field sobriety tests. [Appellant] agreed.
Officer Border testified he utilized the Horizontal Gaze
Nystagmus (HGN) test, the walk and turn test and the one
leg stand test. With respect to the latter two tests the officer
said he gave explicit instructions and demonstrated each
test. Also, he said, at [Appellant’s] request, he allowed
[Appellant] to attempt to perform these two tests on a
portion of sidewalk that was flatter than the surface initially
selected by the officer. Nonetheless, Officer Border testified
that [Appellant] did not successfully perform either test,
facts which along with his observations of [Appellant] led
him to the opinion that [Appellant] was impaired and
incapable of safely operating a motor vehicle.
[Appellant] refused to submit to a portable breath test but
requested a blood test. He was placed under arrest,
handcuffed, and transported to the J.C. Blair Hospital for the
test. At the hospital, the officers took [Appellant] to the
registration area where Officer Border testified he filled out
Commonwealth Form DL-26 and then began to read the
form to [Appellant]. Almost immediately, he said, he
realized he had the wrong form. He stopped reading he said
and returned to the police car where he secured the correct
form. After returning he indicated he asked the registration
clerk to shred the first form since it contained personal
information concerning [Appellant]. [Appellant], he said,
became agitated and started yelling at the clerk that she
-2-
J-S20027-21
was destroying evidence. After he calmed down, Officer
Border related that he read the DL-26 to [Appellant] who
then asked to read the form. With the concurrence of
Corporal Funk, Officer Border gave [Appellant] the form to
read. After a sufficient period of time passed to read the
form, [Appellant] indicated he needed his glasses, Officer
Border said he retrieved the glasses, gave them to
[Appellant] and then gave him sufficient time to read the
DL-26. [Appellant], he said, told him he was dyslexic and a
slow reader. Officer Border took the form from [Appellant]
and read it, he said, verbatim a second time following which
he asked [Appellant] if he would take the blood test.
[Appellant], he said, responded that he would take the test
after he read the DL-26. The request to take the test and
the conditional response of [Appellant] was repeated
multiple times until the officers concluded that the response
was a refusal.
On cross-examination, Officer Border reported that
[Appellant] had been argumentative and hostile throughout
the process. He also explained in detail why he concluded
[Appellant] failed the walk and turn and one-leg stand field
tests. He was also certain that at the hospital he did not tell
[Appellant] that refusing to sign the DL-26 would constitute
a refusal to take the blood test. He did say that [Appellant]
was asked to sign the form. He acknowledged that at all
times [Appellant] said he wanted to take the test but always
with the caveat that he first wanted to read the form.
Corporal Funk corroborated the testimony of Officer Border.
He too expressed the opinion that [Appellant] was
intoxicated and not capable of safely operating a motor
vehicle. At the hearing on [Appellant’s] appeal from his
license suspension,[2] Corporal Funk described the conduct
that led the officers to their conclusion that [Appellant]
refused the test. He said:
“And finally after giving him a very reasonable amount
____________________________________________
2 At trial, the parties agreed to incorporate into the record the transcript from
a hearing held on August 13, 2019, in relation to Appellant’s appeal from an
order suspending his driver’s license. The parties also incorporated into the
record the transcript from a pre-trial hearing held on March 28, 2019.
-3-
J-S20027-21
of time that we probably didn’t even have to give him
legally from a legal standpoint, we started to escort
him to the door. We informed him look, you’re
refusing, we’re done. We gave you ample amount of
time and you’re not wanting to take the test. He kept
saying “I’ll take the test after I read the form.” I said
you had enough time to read the form. This is your
final chance. Are you going to take the test or not?
He said “yes.” So we started walking towards the door
to where we go to have blood taken and then two
seconds after he said yes, he’s like, “after I read the
form again.” So we deemed it a refusal and we left
the hospital with [Appellant].”
Ms. [Delona] Neville[3] was a witness at the license
suspension appeal hearing. Ms. Neville was the Emergency
Room registration clerk at J.C. Blair Hospital on October 28,
2018. She testified that [Appellant] was uncooperative, and
hostile to her to the point where he was yelling, screaming
and spitting at her. She said he was intoxicated to the point
where he had difficulty standing up and had to sit down.
She acknowledged that he verbally consented to take the
blood test but added that the consent was conditioned on
his reading the form. She tagged her testimony with the
observation, “I don’t know how you remember anything that
night to be honest.”
[Appellant] testified that when he was stopped, he was very
tired, nervous and anxious. He described Officer Border as
very abrupt and confusing. He said he agreed to the field
sobriety tests and that he performed the walk and turn and
one-leg stand tests properly and as directed. He agreed
that he refused to take the portable breath test but told
Officer Border he wanted to take the more stringent blood
test. He testified Corporal Funk was physically aggressive
towards him and slammed him into the police car pinning
his legs against the door. He said he was cooperative at the
hospital, and had no problem with his balance. He was
given a form to sign, he said, and told that he had to sign it
in order to take the blood test. He acknowledged that
Officer Border read the DL-26 to him but said he didn’t
____________________________________________
3 The record contains several different spellings of Ms. Neville’s first name.
-4-
J-S20027-21
understand him. He related that he was given the
opportunity to read the DL-26, and that the officers
retrieved his glasses and gave him time to read the form
again. He was adamant that the officers never told him he
could take the blood test without signing the DL-26. He was
equally certain he was not intoxicated.
(Opinion in Support of Denial of Post-Sentence Motions, filed August 11, 2020,
at 2-6) (internal footnote and citations omitted).
Procedurally, the Commonwealth filed a criminal information on
December 28, 2018, charging Appellant with DUI (general impairment, first
offense) and various summary offenses. On January 31, 2019, Appellant
proceeded to arraignment. Prior to arraignment, the Commonwealth had
offered Appellant a chance to resolve the charges through Accelerated
Rehabilitative Disposition (“ARD”). At the arraignment hearing, the District
Attorney made clear:4 “For the record…we’ve offered ARD. If it’s not accepted
today, then it’s going to be withdrawn.” (N.T. Arraignment, 1/31/19, at 1).
Appellant rejected the Commonwealth’s ARD offer.
Appellant filed a pre-trial motion to dismiss on February 25, 2019.
Appellant argued the police prevented him from obtaining “exculpatory
evidence” in the form of a blood test where the police did not permit Appellant
to undergo the blood test once Appellant finished reading the form. (Pre-Trial
Motion, filed 2/25/19, at 2). Following a hearing on March 28, 2019, the court
____________________________________________
4 District Attorney David Smith represented the Commonwealth at this
proceeding and in other proceedings until trial.
-5-
J-S20027-21
denied relief.5
Around November 2019, Appellant asked trial counsel if ARD was still
an option. When trial counsel asked the District Attorney if Appellant was still
eligible for ARD, the District Attorney said no. Appellant proceeded to a bench
trial on December 17, 2019, after which the court convicted Appellant of DUI,
careless driving, operating without rear lights, failure to use a turn signal, and
operating with unsafe equipment. The court sentenced Appellant on March 3,
2020, to six months’ probation for DUI, and imposed fines for the summary
offenses.
On March 12, 2020, new counsel entered an appearance on behalf of
Appellant and timely filed a post-sentence motion. In his motion, Appellant
alleged, inter alia: (1) trial counsel was ineffective for failing to challenge the
District Attorney’s rejection of Appellant’s fall 2019 request to be admitted
into ARD; (2) that in cases where an individual is denied admission into ARD,
the relevant offense should not be deemed a petty offense for purposes of the
Sixth Amendment right to a jury trial; and (3) the verdict was against the
weight of the evidence. (Post-Sentence Motions, filed 3/12/20, at 2,
unpaginated). On April 28, 2020, Appellant requested an extension of time
____________________________________________
5 The Honorable George N. Zanic presided over the pre-trial hearing. At the
conclusion of the hearing, Judge Zanic recused himself due to his belief that
Appellant’s testimony at the hearing was completely incredible. Thus, Judge
Zanic assigned the Honorable Stewart L. Kurtz to preside over Appellant’s trial.
-6-
J-S20027-21
for the court to rule on the motion, which the court granted.6
The court held a hearing on the post-sentence motion on June 1, 2020.
At the hearing, Appellant said he was pursuing “the constitutionality of
[Appellant] being able to pursue a jury trial without ARD,” which Appellant
said did not require any testimony, as well as trial counsel’s failure “to request
an ARD motion after [Appellant] was denied when he basically later
determined that he would like to proceed to ARD.” (N.T. Post-Sentence Motion
Hearing, 6/1/20, at 1-2; R.R. at 120a-121a). The court then had the following
exchange with the parties:
THE COURT: Well, factually you alleged that
initially [Appellant] was offered ARD. Is that a correct
statement?
[DEFENSE COUNSEL]: That is correct, Your Honor.
THE COURT: And he refused it.
[DEFENSE COUNSEL]: At first, Your Honor, he did.
THE COURT: At first. And then subsequent
requests were denied by the District Attorney’s Office, is
that correct?
[DEFENSE COUNSEL]: That’s correct.
THE COURT: [Assistant District Attorney
(“ADA”)], you agree with that?
____________________________________________
6 Generally, the trial court has 120 days to rule on post-sentence motions or
they are deemed denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a).
Upon motion of the defendant for good cause shown, however, the trial court
may grant one 30-day extension for decision on the motion. See Pa.R.Crim.P.
720(B)(3)(b).
-7-
J-S20027-21
[ADA]: Yes, Your Honor.
THE COURT: And let me ask, [ADA], do you
have a policy with respect to this situation?
[ADA]: Yes, Your Honor. We offered
ARD early on in this case and I have a note in the file that
[Appellant] rejected that on January 30th of 2019 and based
upon that rejection we would not subsequently offer ARD.
…
(Id. at 2; R.R. at 121a).
To pursue his ineffectiveness claim in this proceeding, Appellant
expressly waived his right to challenge trial counsel’s effectiveness through a
petition pursuant to the Post Conviction Relief Act (“PCRA”). (Id. at 10; R.R.
at 129a). Appellant stressed that by virtue of his short probationary sentence
of six months, he would likely be unable to litigate his ineffectiveness claim in
collateral proceedings, even if the trial court stayed his probationary sentence
pending appeal. (Id. at 7; R.R. at 126a). Thereafter, the court permitted
Appellant to develop the record with his ineffectiveness claim. (Id.)
Trial counsel testified in relevant part as follows (see id. at 3-6, 10-15;
R.R. at 122a-125a, 129a-134a): Trial counsel was appointed to represent
Appellant in November 2018. Around the time of Appellant’s preliminary
hearing, trial counsel and the District Attorney tentatively discussed ARD
because Appellant had no prior convictions and trial counsel believed Appellant
would qualify for the program. In January 2019, the District Attorney made
a formal offer of ARD to Appellant. Trial counsel specifically recalled discussing
the advantages and disadvantages of ARD with Appellant at that time.
-8-
J-S20027-21
Appellant rejected the ARD offer because he wanted to put on the record the
conduct of the police officers involved in his arrest and wanted to testify in his
own defense. Trial counsel “strongly encourag[ed]” Appellant to rethink his
decision to reject ARD, but Appellant was firm in his choice.
After Appellant officially rejected the ARD offer, sometime around
November 2019, Appellant asked trial counsel if ARD was still an option. Trial
counsel subsequently contacted the District Attorney at least once, but
possibly more than once, asking if ARD was still an option for Appellant, but
the District Attorney said it was not. Trial counsel did not file a formal motion
for reconsideration because counsel thought it would have been futile to do
so, as ARD is generally discretionary within the District Attorney’s Office,
absent any improper motive or abuse of discretion. Trial counsel had filed a
similar motion in the past in a different case and was unsuccessful. Nothing
in the proceedings demonstrated to trial counsel any improper motive or
abuse of discretion in denying Appellant admission to ARD when Appellant had
initially rejected the ARD offer. Trial counsel confirmed that Appellant made
his belated request for ARD after he had unsuccessfully litigated pre-trial
motions.
Appellant testified in relevant part as follows (see id. at 15-26; R.R. at
134a-145a): Appellant recalled trial counsel discussing ARD with him.
Appellant had a “brief sketch” of the advantages and disadvantages of ARD
but it was “very vague” in terms of Appellant’s understanding. Appellant was
-9-
J-S20027-21
under the impression that if he engaged in ARD it would eliminate the need to
go to trial but Appellant was unsure if ARD meant he would be admitting some
form of guilt, which Appellant did not want to do. Appellant was “deeply
concerned” about the conduct of the officers with regard to their interference
of Appellant’s right to have a blood draw.
Later on in the proceedings, when Appellant had a “deeper
understanding” of what ARD entailed, he wanted to pursue it. Trial counsel
explained to Appellant that the District Attorney turned down his request for
ARD because Appellant had already rejected the initial offer. Appellant
described the District Attorney’s initial ARD offer as “take it or leave it,” which
occurred before Appellant had an opportunity to discuss the benefits of ARD
with trial counsel at length. In that moment, Appellant rejected the offer
because he wanted to make “the conduct of the officers a formal record.”
Appellant agreed that the District Attorney made the initial ARD offer prior to
litigation of pre-trial motions. Appellant admitted that trial counsel asked the
District Attorney to reconsider Appellant’s admission into ARD twice after
Appellant had initially rejected the offer.
Appellant insisted he suffers from dyslexia and auditory interpretation,
especially under “duress.” Appellant conceded that he has not been formally
diagnosed with those illnesses. Appellant admitted he only received
educational learning support to address these difficulties in elementary school.
Over Appellant’s initial objection to answering, Appellant confirmed he has a
- 10 -
J-S20027-21
bachelor’s degree in architecture from Carnegie Mellon and a graduate degree
from the Graduate School of Design at Harvard University. At the conclusion
of the hearing, the court deferred its ruling pending the submission of post-
hearing briefs.
On August 11, 2020, the court denied relief. Appellant timely appealed
on September 8, 2020.7 On September 16, 2020, the court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely filed his Rule 1925(b) statement on
October 9, 2020.
Appellant raises the following issues for our review:
In a case where the district attorney has denied a
defendant’s admission into ARD, is the right to a trial by jury
applicable?
____________________________________________
7 Because the court granted a 30-day extension per Rule 720(B)(3)(b), the
court’s ruling on the motion was due by Monday, August 10, 2020. As the
court did not rule on the motion by that date, the clerk of courts should have
entered an order deeming the motion denied by operation of law. See
Pa.R.Crim.P. 720(B)(3)(b) (stating if judge fails to decide motion within 30-
day extension period, motion shall be deemed denied by operation of law);
Pa.R.Crim.P. 720(B)(3)(c) (explaining when post-sentence motion is deemed
denied by operation of law, clerk of courts shall enter order deeming motion
denied on behalf of trial court and serve copies on parties). Here, a breakdown
in the operations of the court occurred where the clerk of courts failed to enter
the order deeming the post-sentence motions denied by operation of law on
August 10, 2020. See Commonwealth v. Patterson, 940 A.2d 493(Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008)
(explaining court’s failure to comply with Rule 720 constitutes breakdown in
operations of court). In any event, Appellant filed his notice of appeal on
September 8, 2020, within 30 days of the date on which the clerk of courts
should have deemed the post-sentence motion denied by operation of law.
Under these circumstances, we will overlook any procedural irregularity with
the appeal.
- 11 -
J-S20027-21
In a case where the prosecution disparages the defendant’s
race and gender in a closing argument, is there sufficient
proof to determine that the failure to grant ARD was an
abuse of discretion and related to the consideration of
inappropriate criteria?
Did trial counsel render ineffective assistance?
Was the verdict against the weight of the evidence?
(Appellant’s Brief at 9).
In his first issue, Appellant argues that he should have been entitled to
a jury trial for his DUI offense. Appellant acknowledges the presumption that
offenses punishable by no more than six months are considered “petty
offenses.” Appellant claims that presumption can be rebutted, however, by
examining the objective indications of the seriousness with which society
regards the offense. Appellant insists DUI is a serious crime, in which drunk
drivers have claimed and injured thousands of lives. Appellant maintains that
DUI should not be considered a “petty offense” for purposes of deciding
whether the right to a jury trial attaches. Appellant also concedes that DUI
cases which are submitted for resolution through ARD are, by definition,
“petty.” Appellant submits that because the District Attorney denied his
admission to ARD, that means the Commonwealth must have decided his
offense was not minor. Appellant concludes he was entitled to a jury trial
under these circumstances, and this Court must grant appropriate relief. We
disagree.
“[B]oth the U.S. Constitution and Article I, Section 9 of the Pennsylvania
- 12 -
J-S20027-21
Constitution only guarantee a defendant a right to a jury trial for ‘serious
offenses,’ or crimes which carry more than a six month maximum prison
sentence.” Commonwealth v. Langley, 145 A.3d 757, 760 (Pa.Super.
2016). “In contrast, crimes that carry a maximum of six months’
imprisonment or less are considered ‘petty offenses’ for which there is no right
to a jury trial.” Id.This Court has explained:
“The test is clear. The decisions of the Supreme Court of
the United States ‘have 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 crimes.’” Commonwealth v. Mayberry, 459 Pa. 91,
98, 327 A.2d 86, 89 (1974) (quoting Codispoti v.
Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 41
L.Ed.2d 912 (1974)). It is well-settled that a legislature’s
determination that an offense carries a maximum prison
term of six months or less indicates its view that an offense
is “petty.” Blanton v. North Las Vegas, 489 U.S. 538,
543, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). As further
explained in Blanton,
It has long been settled that there is a category of
petty crimes or offenses which is not subject to the
Sixth Amendment jury trial provision. In determining
whether a particular offense should be categorized as
petty, our early decisions focused on the nature of the
offense and on whether it was triable by a jury at
common law. In recent years, however, we have
sought more objective indications of the seriousness
with which society regards the offense. [W]e have
found the most relevant such criteria in the
severity of the maximum authorized penalty. In
fixing the maximum penalty for a crime, a
legislature include[s] within the definition of the
crime itself a judgment about the seriousness of
the offense. The judiciary should not substitute
- 13 -
J-S20027-21
its judgment as to seriousness for that of a
legislature, which is far better equipped to
perform the task, and [is] likewise more
responsive to changes in attitude and more
amenable to the recognition and correction of
their misperceptions in this respect.
Id. at 541–542, 109 S.Ct. 1289 (internal quotation marks
and citations omitted).
Commonwealth v. Kerry, 906 A.2d 1237, 1239 (Pa.Super. 2006) (emphasis
added). “[B]y setting the maximum authorized prison term at six months,
the Legislature categorized the violation of [Section] 3802(a)(1) as petty for
purposes of a defendant’s jury trial rights.” Langley, supra at 761 (rejecting
appellant’s claim that DUI should be considered serious offense for purposes
of whether right to jury trial attaches).
Instantly, Appellant’s current DUI was his first DUI offense for which he
faced a maximum term of six months’ imprisonment. See 75 Pa.C.S.A.
3803(a)(1) (explaining individual who violates section 3802(a) (relating to
DUI) and has no more than one prior offense commits misdemeanor for which
individual may be sentenced to term of imprisonment of not more than six
months and to pay fine under section 3804 (relating to penalties)). The
legislature’s decision to fix the maximum term of imprisonment at six months
evidences its judgment that DUI as a first offense is not a “serious” offense.
See Langley, supra. We reject Appellant’s invitation to substitute our
judgment regarding the seriousness of DUI for that of our legislature. See
Blanton, supra; Langley, supra; Kerry, supra. Consequently, Appellant’s
- 14 -
J-S20027-21
first issue merits no relief.
In his second issue, Appellant argues the Commonwealth rejected his
admission into ARD based on improper factors. Appellant emphasizes the
prosecutor’s statements at closing argument that “it seems like we have a
very entitled person. He is an embodiment of everything wrong with the white
male America. When we hear the word white privilege, this is what I think
of.” (Appellant’s Brief at 21) (citing N.T. Trial, 12/17/19, at 114). Appellant
claims the prosecutor’s remarks make clear the Commonwealth did not permit
Appellant access to ARD based on his race and gender. Although Appellant
acknowledges the Commonwealth’s alleged policy to deny defendants into
ARD if they have previously rejected an ARD offer, Appellant contends that it
is “impossible to purge the taint of discrimination in this case” to discern the
true reason for denying Appellant access to ARD. (Appellant’s Brief at 21).
Appellant concludes the District Attorney’s denial of his admission into ARD
was improper, and this Court must grant appropriate relief. We disagree.
Chapter 3 of the Pennsylvania Rules of Criminal Procedure governs the
procedure for ARD in court cases and summary cases. The explanatory
comment to this chapter provides, in relevant part:
The primary purpose of this program is the rehabilitation of
the offender; secondarily, the purpose is the prompt
disposition of charges, eliminating the need for costly
and time-consuming trials or other court proceedings.
These rules contemplate that ordinarily the defendants
eligible for the ARD program are first offenders who lend
themselves to treatment and rehabilitation rather than
punishment and that the crime charged is relatively minor
- 15 -
J-S20027-21
and does not involve a serious breach of the public trust.
The program is intended to encourage offenders to make a
fresh start after participation in a rehabilitative program and
offers them the possibility of a clean record if they
successfully complete the program. Because of the
rehabilitative purpose of the program, and because the
program permits prompt disposition of the charges, the
descriptive title “accelerated rehabilitative disposition” was
selected rather than such terms as “pre-indictment
probation” or “deferred disposition.”
The rules in this Chapter provide the procedural framework
for the utilization of Accelerated Rehabilitative Disposition
by the judges of the courts of common pleas in court cases
and in summary cases, and by the minor judiciary in
summary cases. These rules do not specify those classes of
offenses or offenders that are eligible or ineligible for
inclusion in the ARD program. In general, the district
attorney has the responsibility for determining which
cases will be recommended for entry into the ARD
program.
* * *
Pa.R.Crim.P. Ch 3, Explanatory Comment (emphasis added).
“After criminal proceedings in a court case have been instituted, the
attorney for the Commonwealth may move, before a judge empowered to try
court cases, that the case be considered for [ARD].” Pa.R.Crim.P. 310. “A
request for inclusion into the program may be made to the district attorney
by the defendant, the defendant’s attorney, or an interested agency or
institution.” Id., Comment.
This Court has made clear:
The decision to submit a 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
- 16 -
J-S20027-21
to the protection of society 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 it for ARD consideration based on his view
of what is most beneficial for society and the offender. A
district attorney may base a decision to grant or deny
admission to ARD on any consideration related to the
protection of society and the rehabilitation of the defendant.
In effect, the trial court must determine the evidence was
insufficient to support a finding that the district attorney’s
decision was related to the protection of society or the
likelihood of success in rehabilitating the defendant. … The
Commonwealth does not have the burden of proving the
absence of abuse of discretion; rather, the petitioner has
the burden of proving the Commonwealth’s denial of
his request was based on prohibited reasons.
Admission into the ARD program is intentionally restrictive
to ensure the district attorney makes the decision to
suspend prosecution pending the successful completion of
the ARD program. If the district attorney based his decision
upon criteria related to the protection of society or the
likelihood of a person’s success in rehabilitation, then the
district attorney’s decision will stand.
Commonwealth v. Sohnleitner, 884 A.2d 307, 313-14 (Pa.Super. 2005)
(emphasis added), appeal denied, 587 Pa. 692, 897 A.2d 456 (2006) (internal
citations and quotation marks omitted). “Upon the Commonwealth’s denial of
a defendant’s admission into an ARD program, the trial court’s role is limited
to whether the Commonwealth abused its discretion.” Id. at 313.
“A defendant’s inclusion into an ARD program is a joint effort between
the prosecutor and the trial court. An ARD recommendation is solely in the
province of the prosecutor, and admission of an offender into the program is
by the grace of the trial court upon the Commonwealth’s motion.”
Commonwealth v. Pypiak, 728 A.2d 970, 972 (Pa.Super. 1999).
- 17 -
J-S20027-21
Additionally, “[a] prosecutor has full discretion to reject a defendant for ARD
and need not supply reasons for the decision to reject the defendant.” Id.Even when it is unclear from the record what general policy the District
Attorney employs when admitting or denying a defendant to ARD, it is still the
petitioner’s burden to establish that the District Attorney’s denial of an ARD
request was based on prohibited reasons. Id. Furthermore, the
Commonwealth is entitled to withdraw its ARD recommendation at any point
before the trial court rules on it. Commonwealth v. Cline, 800 A.2d 978,
982 (Pa.Super. 2002), appeal denied, 573 Pa. 676, 822 A.2d 703 (2003).
Instantly, the Commonwealth made an informal offer of ARD to
Appellant early in the proceedings, sometime prior to arraignment. Although
trial counsel “strongly encouraged” Appellant to accept the offer, Appellant
made clear he wanted to reject it, so Appellant could make a record of the
alleged police misconduct in his case. The Commonwealth formally offered
ARD to Appellant at arraignment on January 31, 2019. District Attorney Smith
made clear: “For the record…we’ve offered ARD. If it’s not accepted today,
then it’s going to be withdrawn.” (N.T. Arraignment, 1/31/19, at 1). Appellant
rejected the Commonwealth’s ARD offer.
Consistent with Appellant’s intent to challenge the conduct of the police,
Appellant subsequently filed a motion to dismiss on February 25, 2019, which
the court heard on March 28, 2019. Following the pre-trial hearing, the court
denied relief. Around November 2019, approximately ten months after
- 18 -
J-S20027-21
Appellant had rejected the Commonwealth’s ARD offer, Appellant asked trial
counsel to inquire if ARD was still an option. Despite trial counsel’s efforts,
the Commonwealth declined to reinstate the ARD offer.
In support of his claim that the District Attorney rejected Appellant’s
admission to ARD based on improper factors, Appellant highlights the
prosecutor’s closing argument at trial:8
Just very briefly, a couple things that struck me during this
case and my review of the record in this case was that
everything that has happened here according to [Appellant]
is someone else’s fault. We have the faulty inspection of
the vehicle that caused him to be pulled over. The officer is
talking too fast. He is being roughed up by the officers.
Your Honor, I prosecuted I don’t even know how many DUI
cases in the past 15 years or so, and I don’t know that I
have ever encountered conduct quite like this. In looking at
this, it seems like we have a very entitled person. He is an
embodiment of everything wrong with the white male
America. When we hear the word white privilege, this is
what I think of. Your Honor, everything here is someone
else’s fault. Poor [Appellant].
I think we have proved beyond a reasonable doubt that he
was under the influence and he was incapable of safe
driving, and I think the refusal has been previously ruled on.
I would just ask that he be found guilty of the charges that
are lodged against him.
(N.T. Trial at 113-14; R.R. at 116a-117a).
Notwithstanding the mention of Appellant’s race and sex in the
prosecutor’s closing remarks, we cannot agree with Appellant that his denial
____________________________________________
8 Assistant District Attorney Julia Wilt represented the Commonwealth at trial.
- 19 -
J-S20027-21
of admission into ARD was “wholly, patently and without doubt” based on
prohibited considerations. See Sohnleitner, supra. Notably, the prosecutor
who made those comments was uninvolved in the case prior to trial, and was
not the same attorney who had made the offer of ARD at arraignment.
Further, the record demonstrates that the District Attorney’s office had
a policy of offering ARD to qualifying defendants early in the proceedings, and
not reinstating an ARD offer after a defendant initially rejected it. (See N.T.
Post-Sentence Motion Hearing at 2; R.R. at 121a). Such a policy is consistent
with the secondary purpose of ARD to eliminate the need for costly and time-
consuming trials or other court proceedings. See Pa.R.Crim.P. Ch 3,
Explanatory Comment. Here, Appellant chose to reject ARD to see if he would
succeed in having the case completely dismissed. Only when Appellant failed
in that endeavor did he decide to pursue ARD. On this record, Appellant has
failed to satisfy his burden to prove that the District Attorney’s denial of his
belated request for ARD was based on prohibited considerations. See
Sohnleitner, supra; Cline, supra; Pypiak, supra. Therefore, Appellant’s
second issue merits no relief.
In his third issue, Appellant argues trial counsel was ineffective for
failing to file a motion in the trial court challenging the Commonwealth’s
refusal to accept Appellant’s reconsideration of the initial ARD offer,
particularly in light of the Commonwealth’s discriminatory statements during
closing argument. Appellant acknowledges the general rule that claims of
- 20 -
J-S20027-21
ineffective assistance of counsel are ordinarily deferred until collateral review.
Nevertheless, Appellant submits that his claim of ineffectiveness is ripe for
appellate review because he raised the claim before the trial court in his post-
sentence motion, developed the record regarding this claim at the hearing on
his post-sentence motion, and waived his right to collateral review on the
record.
On the merits, Appellant claims trial counsel had no reasonable basis for
failing to request the trial court to review the District Attorney’s denial of ARD.
Appellant highlights trial counsel’s testimony that he did not file such a motion
on Appellant’s behalf because he had been unsuccessful in filing a similar
motion in another case. Given the evidence of bias displayed during closing
arguments, Appellant insists there was no valid defense strategy for declining
to file such a motion in this case. Appellant contends counsel’s inaction caused
him prejudice. Appellant further claims trial counsel was ineffective for failing
to object to the unavailability of a jury trial. Appellant concludes counsel
rendered ineffective assistance, and this Court must grant appropriate relief.
We disagree.
Ineffective assistance of counsel claims are generally reserved for
collateral review. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726(2002). In Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003),
cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), our
Supreme Court determined that an ineffectiveness claim might be raised on
- 21 -
J-S20027-21
direct appeal if: (1) the appellant raised his claim(s) in a post-sentence
motion; (2) an evidentiary hearing was held on the claim(s); and (3) a record
devoted to the claim(s) has been developed.
The Supreme Court limited its holding in Bomar in Commonwealth v.
Holmes, 621 Pa. 595, 79 A.3d 562 (2013). In Holmes, the Court reiterated
the general rule in Grant that claims of ineffective assistance of counsel must
be deferred until collateral review. Nevertheless, the Court recognized two
exceptions to the general rule, both falling within the discretion of the trial
judge:
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial
counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration best
serves the interests of justice; and we hold that trial courts
retain their discretion to entertain such claims. …
Second, with respect to other cases and claims such as
Bomar and the matter sub judice, where the defendant
seeks to litigate multiple or prolix claims of counsel
ineffectiveness, including non-record based claims, on post-
verdict motions and direct appeal, we repose discretion in
the trial courts to entertain such claims, but only if (1) there
is good cause shown,1 and (2) the unitary review so
indulged is preceded by the defendant’s knowing and
express waiver of his entitlement to seek PCRA review from
his conviction and sentence, including an express
recognition that the waiver subjects further collateral review
to the time and serial petition restrictions of the PCRA.2 In
other words, we adopt a paradigm whereby unitary review
may be available in such cases only to the extent that it
advances (and exhausts) PCRA review in time; unlike the
so-called Bomar exception; unitary review would not be
made available as an accelerated, extra round of collateral
attack as of right. …
- 22 -
J-S20027-21
1 [I]n short sentence cases the trial court’s
assessment of good cause should pay particular
attention to the length of the sentence imposed and
the effect the length of the sentence will have on the
defendant’s realistic prospect to be able to avail
himself of collateral review under the PCRA.
2 Unitary review describes the defendant’s ability to
pursue both preserved direct review claims and
collateral claims of trial counsel ineffectiveness on
post-sentence motions and direct appeal, and could
aptly describe both exceptions we recognize today.
However, for purposes of this appeal, we intend the
term only to describe the second exception, i.e., that
hybrid review which would encompass full-blown
litigation of collateral claims (including non-record-
based claims).
Id. at 599, 79 A.3d at 564. Specifically, regarding short sentence cases, the
Court stated: “We trust that trial courts, in short sentence cases where a
request is made to litigate collateral claims in the post-verdict scenario, will
recognize these practical concerns and liberally allow for unitary review.” Id.
at 623, 79 A.3d at 578. See also 42 Pa.C.S.A. § 9543(a)(1)(i) (requiring that
PCRA petitioner currently be serving sentence of imprisonment, probation or
parole for crime at issue to be eligible for PCRA relief).
Instantly, Appellant raised in his post-sentence motion trial counsel’s
ineffectiveness for failing to challenge the District Attorney’s denial of ARD.
The court scheduled a hearing on the motion for June 1, 2020. At that hearing,
Appellant acknowledged that he was serving a short sentence of only six
months’ probation and would be unlikely to litigate his ineffectiveness claims
on collateral review prior to completing his probationary sentence.
- 23 -
J-S20027-21
Additionally, Appellant expressly waived his right to PCRA review. Based on
Appellant’s waiver, the court permitted Appellant to develop his
ineffectiveness claim on the record. Under these circumstances, we will reach
the merits of this ineffectiveness claim on direct appeal.9 See Holmes,
supra.Pennsylvania law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is required
to demonstrate: (1) the underlying claim has arguable merit; (2) counsel had
no reasonable strategic basis for his action or inaction; and, (3) but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong
of the test for ineffectiveness will cause the claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
____________________________________________
9 Appellant did not raise in his post-sentence motion or develop during the
post-sentence motion hearing his claim on appeal that trial counsel was
ineffective for failing to object to the unavailability of a jury trial. Therefore,
we will not consider this ineffectiveness claim on appeal as it runs afoul of
Holmes.
- 24 -
J-S20027-21
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. …
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
Here, trial counsel testified at the post-sentence motion hearing that he
did not file a formal motion with the trial court seeking to challenge the District
Attorney’s rejection of Appellant for ARD due to counsel’s knowledge of the
District Attorney’s broad discretion regarding ARD, and where counsel did not
discern any improper basis by the District Attorney in that decision.
Additionally, trial counsel indicated that he had been unsuccessful in another
case when he made a similar challenge. Although Appellant again points to
the prosecutor’s remarks at closing argument, those comments had not yet
occurred at the time trial counsel would have sought to challenge the District
- 25 -
J-S20027-21
Attorney’s rejection of Appellant’s late request for ARD. Under these
circumstances, trial counsel’s decision not to file a motion challenging
Appellant’s exclusion from ARD was reasonable. See Pierce, supra.Therefore, Appellant’s third issue merits no relief.
In his fourth issue, Appellant argues there was no evidence that he
operated his motor vehicle in an unsafe manner. Appellant asserts that Officer
Border pulled him over for malfunctioning brake lights and Appellant’s alleged
failure to signal a right turn. Appellant emphasizes the officer’s testimony that
Appellant slowed down and stopped at stop signs. Appellant insists there was
no evidence that he failed to stop, stopped in a delayed manner, wove, sped,
or drove too slowly. Appellant insists it “shocks the conscience” to conclude
he was incapable of safe driving when all accounts of the actual operation of
the motor vehicle demonstrate Appellant was operating his vehicle in a safe
fashion. Appellant concludes the verdict was against the weight of the
evidence, and this Court must grant appropriate relief. We disagree.
When examining a challenge to the weight of the evidence, our standard
of review is as follows:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
- 26 -
J-S20027-21
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted). A “trial court’s denial of a motion for a new trial
based on a weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Rivera, 603 Pa. 340, 363, 983 A.2d 1211, 1225 (2009),
cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191 (2010).
Instantly, the Commonwealth presented testimony from Officer Border
and Corporal Funk at trial. The police officers testified in relevant part as
follows: (1) Officer Border initially stopped Appellant for failing to use a turn
signal and brake lights that were not working; (2) Officer Border smelled the
odor of intoxicating beverage coming from Appellant’s vehicle and his person;
(3) Appellant fumbled through his wallet to produce his driver’s license; (4)
Appellant admitted to consuming alcohol that evening; (5) Appellant’s eyes
were bloodshot, he had slurred speech when answering questions, and was
being somewhat hostile with the officers; specifically, Appellant claimed the
reason for the traffic stop had nothing to do with his driving and the inspection
station should be at fault because Appellant said he had just taken the car for
inspection earlier that day; (6) Appellant failed all field sobriety tests including
the HGN test, walk and turn, and one leg stand; (7) Appellant refused to take
a portable breath test and insisted on a blood draw; (8) Officer Border arrested
- 27 -
J-S20027-21
Appellant for DUI; (9) Appellant refused to get into the patrol car after multiple
requests, such that Corporal Funk had to physically place Appellant into the
car; (10) at the hospital, Officer Border initially read the incorrect DL-26 form
to Appellant; when the officer realized his error and asked the hospital
registration clerk to shred the paper, which had Appellant’s identifying
information on it, Appellant yelled at the registration clerk that she was
destroying evidence; (11) when the officer obtained the correct DL-26 form
to read to Appellant, Appellant asked to read the form himself; the officers
permitted Appellant to do so; (12) Appellant made numerous statements that
he would not undergo the blood draw until he read the DL-26 form, and
repeatedly claimed he was not finished reading the form after the officers had
given him ample time to do so; (13) in Corporal Funk’s opinion, Appellant was
“stonewalling.” (See N.T. Trial at 1-72; R.R. at 4a-75a).
Appellant testified in his own defense in relevant part as follows: (1)
when Officer Border pulled over Appellant’s vehicle, Appellant informed the
officer that he had purchased the vehicle earlier that day and Appellant was
not used to driving it; (2) Appellant admitted he consumed two or three drinks
over a three hour period; (3) Appellant placed blame for the vehicle’s
performance issues on the entity that had conducted an inspection of the
vehicle earlier that day; (4) Appellant insisted he passed the one-leg stand
once the officer permitted him to perform it on flat ground; (5) Appellant said
he completed the walk-and-turn test as instructed; (6) to the extent Appellant
- 28 -
J-S20027-21
failed the HGN test, Appellant suggested his dyslexia might have been
responsible for that failure; (7) Appellant insisted on a blood draw instead of
a portable breath test because Appellant believed the results of a blood draw
were more reliable; (8) when Appellant requested a blood draw, Corporal Funk
became enraged and grabbed Appellant roughly; (9) although Appellant did
not refuse to get into the patrol car, Corporal Funk pinned Appellant’s legs
against the door sill and yelled at him to cooperate; (10) at the hospital, the
officers presented Appellant with a form that Appellant believed he needed to
sign before taking the blood test; (11) when the officers initially read Appellant
the incorrect form, Appellant asked the registration clerk not to shred it
because it could be evidence; (12) when Officer Border produced the correct
form and began reading it to Appellant, Appellant’s dyslexia interfered with
his ability to process the words; (13) Appellant asked to read the form and
the officers permitted him to do so; (14) the officers were dissatisfied with
how long it was taking Appellant to read the form and kept pressuring him to
read faster; (15) neither officer informed Appellant that he could take the
blood test without signing the form. (See id. at 76-109; R.R. at 79a-112a).
The parties also incorporated into the record transcripts from two earlier
proceedings.10 The pre-trial hearing transcript from March 28, 2019 included
testimony from the hospital registration clerk, Ms. Delona Neville. Ms. Neville
____________________________________________
10 The transcript from Appellant’s license suspension appeal is not in the
certified record.
- 29 -
J-S20027-21
testified in relevant part as follows: (1) she was working as an emergency
room registration clerk on the date in question; (2) when the officers asked
Ms. Neville to shred the incorrect DL-26 form, Appellant became hostile and
was “spitting at [Ms. Neville] through the window”; (3) Appellant became
“violent” when he believed the officers were shredding evidence; (4) Ms.
Neville was nervous due to Appellant’s behavior; (5) Ms. Neville heard the
officers read Appellant the correct DL-26 form several times; (6) the officers
gave Appellant plenty of opportunities to read the form, but after Appellant’s
repeated refusals not to take the blood test until after reading the form, the
officers and Appellant left. (See N.T. Pre-Trial Hearing, 3/28/19, at 31-39).11
In rejecting Appellant’s weight claim, the trial court stated: “[T]wo police
officers and a hospital registration clerk gave credible evidence that
[Appellant] was under the influence of alcohol early in the morning of October
28, 2020. No credible evidence refuted this proof. Clearly there is nothing
shocking about the verdict.” (Opinion in Support of Denial of Post-Sentence
Motions at 8-9). The court was free to reject Appellant’s testimony and credit
the testimony of the Commonwealth’s witnesses. See Champney, supra.On this record, we see no reason to disrupt the court’s ruling on Appellant’s
weight claim. See id. See also Rivera, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
____________________________________________
11 The transcript from the March 28, 2019 hearing is included in the certified
record but not in the reproduced record.
- 30 -
J-S20027-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/05/2021
- 31 -