Com. v. Donella, W.

J-S24005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER DONELLA :
:
Appellant : No. 1330 MDA 2017
Appeal from the Judgment of Sentence August 10, 2017
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001929-2016
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
JUDGMENT ORDER BY OLSON, J.: FILED JUNE 25, 2018
Appellant, Walter Donella, appeals from the judgment of sentence
entered on August 10, 2017. We affirm.
The factual background and procedural history of this case are as
follows. In the early morning hours of May 3, 2016, Police Officer David
Stamets stopped Appellant’s vehicle after he noticed the vehicle had incorrect
registration tags. When he approached the vehicle, Officer Stamets noticed
Appellant’s dilated eyes, running nose, dry mouth, and tense face. He also
saw fresh puncture marks on Appellant’s arms. Officer Stamets asked
Appellant to complete field sobriety tests. Appellant failed those tests and
was arrested for suspicion of driving under the influence (“DUI”). After being
informed of his right to remain silent, Appellant admitted to using heroin in
the hours prior to his arrest and using oxycodone and Xanax the previous day.
J-S24005-18
On April 3, 2017, the Commonwealth charged Appellant via criminal
information with two counts of DUI – controlled substance1 and driving an
unregistered vehicle.2 On June 12, 2017, Appellant was convicted of one
count of DUI – controlled substance and driving an unregistered vehicle. On
August 10, 2017, the trial court sentenced him to an aggregate term of ten
days to six months’ imprisonment. This timely appeal followed.3
Appellant presents one issue for our review:
Did the [C]ommonwealth present sufficient evidence to support
the charge of [DUI – controlled substance]?
Appellant’s Brief at 4.
Appellant’s sufficiency challenge is waived. In the argument portion of
his brief, Appellant argues only that the trial court should have suppressed
the evidence gathered during the traffic stop. He makes no argument as to
how the evidence was insufficient to convict him of DUI – controlled substance.
Hence, his sufficiency argument is waived. See Pa.R.A.P. 2101 and 2119(a).
____________________________________________
1 75 Pa.C.S.A. § 3802(d)(1)(ii) and (d)(2).
2 75 Pa.C.S.A. § 1301(a).
3 Appellant failed to comply with the trial court’s order to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). The docket, however, does not indicate that notice of the
order was sent to Appellant’s counsel. As we cannot assume that the order
was properly served on Appellant’s counsel, we decline to find waiver on this
ground. See In re L.M., 923 A.2d 505, 510 (Pa. Super. 2007).
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J-S24005-18
Appellant never filed a motion to suppress. Hence, Appellant waived
any challenge to the admissibility of the evidence gathered during the traffic
stop. See Pa.R.A.P. 302(a). Appellant also waived his challenge to the
admissibility of the evidence presented at trial by failing to include it in the
statement of questions presented section of his brief. See Pa.R.A.P. 2101 and
2116(a).4 As Appellant waived his only issue, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2018
____________________________________________
4 We are deeply troubled at the performance of Kent D. Watkins, Esq. in this
case. The deficiencies evident on the face of Appellant’s brief are unacceptable
for a public defender. Attorney Watkins must furnish a copy of this judgment
order to the Schuylkill County Commissioners and the Disciplinary Board of
the Supreme Court of Pennsylvania forthwith.
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