J-A04017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SELENA YVONNE HAYES                        :
                                               :
                      Appellant                :   No. 536 MDA 2017

            Appeal from the Judgment of Sentence February 3, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0002943-2016

BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 26, 2018

        Appellant Selena Yvonne Hayes appeals pro se from the judgment of

sentence entered after the trial court found her guilty of driving under the

influence (DUI), general impairment,1 and two summary traffic violations.2

Appellant claims that the verdict was against the weight of the evidence. We

affirm.

        Appellant’s conviction arises from a traffic stop on March 13, 2016, at

approximately 3:30 a.m. It is undisputed that Appellant, an African-American

woman, was driving. The owner of the vehicle, Eric Neal, was in the front

passenger seat, and Neal’s friend was in the backseat behind Appellant.

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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. §§ 3334(a) (required signals), 3309 (driving on roadways laned
for traffic).
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      According to East Lampeter Township Police Officer Samuel Sanger, he

began following Appellant on the 1600 block of Lincoln Highway. Between the

1600 and 2000 block of Lincoln Highway, Appellant weaved within her lane of

travel, crossed the lane line twelve to fifteen times, and intermittently braked,

accelerated, and decelerated for no apparent reason. Between the 2000 and

2100 blocks of Lincoln Highway, Appellant went onto the median and almost

hit a traffic sign. After passing through an intersection, Appellant crossed into

the opposing lane of travel, then straddled the double yellow line, and then

swerved across the left lane to the right lane of her direction of travel.

Appellant did not signal when moving to the right lane. The officer did not

record Appellant’s driving on his vehicle’s dash-cam.

      Officer Sanger activated his overhead lights, and Appellant pulled into a

parking lot. Appellant opened the door as the officer approached, and the

officer smelled alcohol emanating from the vehicle. Appellant admitted that

she was at the Village, a bar, where she consumed two alcoholic drinks and

then left to eat at a nearby “IHOP,” a restaurant.

      According to the officer, Appellant was unsteady on her feet and swayed

back and forth as she exited the vehicle. The officer smelled a moderate odor

of alcohol on Appellant’s breath. Appellant’s eyes were bloodshot and watery,

and her speech was slightly slurred. The officer administered field sobriety

tests, which were not recorded by the police vehicle’s dash-cam, and Appellant

exhibited numerous indications of intoxication. The officer arrested Appellant

and transported her to Lancaster General Hospital for blood testing. On March

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30, 2016, Appellant was charged with DUI-general impairment and the two

traffic violations.3

       Appellant retained trial counsel and proceeded to a one-day nonjury trial

on February 3, 2017.         Officer Sanger testified as to his observations and

opinions regarding Appellant’s intoxication when driving. Trial counsel cross-

examined the officer with his report at Lancaster General Hospital indicating

that Appellant was alert, was not disoriented, exhibited ease of movement,

and did not show signs of violent behavior.

       Appellant testified at trial that she was not intoxicated at the time of the

incident and did not drive erratically.          Additionally, Appellant called three

witnesses—Neal, the security guard at the Village, and Appellant’s friend who

was with her at the Village and was driving to the IHOP in a separate vehicle—

to corroborate her testimony. At the conclusion of trial, the trial court found



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3 The criminal complaint also charged Appellant with one count of driving
under the influence-highest rate of alcohol, 75 Pa.C.S. § 3802(c), and the
attached affidavit of probable cause stated blood testing revealed that
Appellant’s blood alcohol content was .166%. However, the United States
Supreme Court decided Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),
on June 23, 2016, and held that warrantless blood testing was not justified
under implied consent laws that impose criminal penalties for refusal.
Birchfield, 136 S. Ct. at 2185-86. The Commonwealth withdrew the count
under Section 3802(c) before filing the information.           At trial, the
Commonwealth did not present evidence regarding the results of a preliminary
breath test, see Commonwealth v. Stanley, 629 A.2d 940, 941-42 (Pa.
Super. 1993) (holding preliminary breath tests are not inadmissible at trial),
or the blood test taken at Lancaster General Hospital, see Birchfield, 136 S.
Ct. at 2186.


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Appellant guilty of all charges. That same day, the court sentenced Appellant

to serve six months’ probation and to pay fines and costs.

       Appellant filed a counseled post-sentence motion for a new trial or arrest

of judgment on February 14, 2017, the eleventh day after sentencing. The

trial court entered an order purporting to deny the post-sentence motion on

February 15, 2017. On March 13, 2017, Appellant filed a counseled notice of

appeal.

       Four days later, on March 17, 2017, trial counsel filed a motion to

withdraw from representation asserting that Appellant intended to proceed

pro se on appeal. Thereafter, the trial court issued an order for a Pa.R.A.P.

1925(b) statement on March 24, 2017.

       On April 4, 2017, the trial court granted trial counsel’s motion to

withdraw. Appellant timely filed a pro se Rule 1925(b) statement challenging

the verdict and alleging trial counsel’s ineffectiveness.4    The court filed a

responsive Rule 1925(a) opinion addressing the sufficiency and weight of the

evidence and suggesting that Appellant’s ineffectiveness claim be deferred

until collateral review.

       Following a remand by this Court, the trial court determined that

Appellant’s decision to proceed pro se in this appeal was knowing, intelligent,




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4The twenty-first day after the trial court’s order for a Rule 1925(b) statement
was Friday, April 14, 2017, a court holiday. Therefore, the Appellant’s April
17, 2017 Rule 1925 statement was timely filed. See 1 Pa.C.S. § 1908.

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and voluntary. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

This appeal is now before this Court.

      Before addressing Appellant’s questions on appeal, we consider whether

this appeal was timely filed. The timeliness of an appeal implicates this Court’s

jurisdiction, and we may raise this issue sua sponte.      Commonwealth v.

Duffy, 143 A.3d 940, 942 (Pa. Super. 2016).

      A criminal defendant must generally file a notice of appeal within thirty

days of the imposition of sentence or the entry of an order denying a timely

post-sentence motion.     Pa.R.Crim.P. 720(A)(2)-(3).    To be timely, a post-

sentence motion must be filed within ten days of the imposition of sentence.

Pa.R.Crim.P. 720(A).     An untimely post-sentence motion does not toll the

thirty-day period for filing an appeal from the imposition of sentence. See

Pa.R.A.P.   301(a)(2),     903(c)(3);    Pa.R.Crim.P.    720(A)(3)    &    cmt.;

Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (en

banc).

      Instantly, the trial court advised Appellant that she had ten days from

the imposition of sentence on February 3, 2017, to file a post-sentence

motion. N.T., 2/3/17, at 212. Therefore, Appellant’s counseled post-sentence

motion, which was filed eleven days after sentencing, was facially untimely.

See Commonwealth v. Green, 862 A.2d 613, 617 (Pa. Super. 2004) (en

banc).   Accordingly, Appellant was required to file a notice of appeal by

Monday, March 6, 2017, the thirtieth day after sentencing, and Appellant’s




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March 13, 2017 notice of appeal was untimely on its face. See id.; see also

1 Pa.C.S. § 1908; Pa.R.A.P. 903(c).

      Nevertheless, a trial court’s failure to inform a defendant of the

appropriate time for an appeal under Pa.R.Crim.P. 720 may constitute a

breakdown in the operation of the court. See Commonwealth v. Patterson,

940 A.2d 493, 499 (Pa. Super. 2007). Here, as in Patterson, the trial court

denied Appellant’s post-sentence motion within the thirty-day period for

taking an appeal from the imposition of the sentence but did not inform

Appellant of the appropriate time to appeal. See id. Therefore, we decline

to quash this appeal. See id. at 500.

      Appellant, in her pro se brief, presents the following questions for

review:

      [1.] Whether the trial court erred in arriving at a guilty verdict
      where the testifying officer followed [Appellant’s] vehicle based
      solely upon the strength of his knowledge of her race and where
      there were neither preliminary breath test results nor blood test
      results presented at trial and where the testifying officer asserts
      that [Appellant] both drove erratically and failed her field sobriety
      tests yet neither of these alleged occurrences were corroborated
      by video surveillance and where the officer’s testimony was
      directly contradicted by other testifying witnesses making the
      court's ruling an abuse of discretion?

      [2.] Whether [trial] counsel erred in not filing a motion to
      reconsider and whether a new trial should be granted as a result?

Appellant’s Brief at 1.

      Appellant first claims that her conviction was improper because there

was no objective evidence corroborating Officer Sanger’s testimony regarding



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her driving and his observations following the traffic stop. Appellant’s Brief at

6-7. She asserts that the officer did not observe any “wrongdoing” and faults

the officer for not recording her driving on his vehicle’s “dash cam.” Id. at 6,

11-12.      Similarly, Appellant notes that the officer did not record her

performance of the field sobriety tests.       Id. at 7, 12.     Appellant also

emphasizes that the results of the blood test were not admitted into evidence

at trial. Id.

      Appellant further asserts the defense witnesses refuted the officer’s

opinion that she was intoxicated or incapable of safely operating the vehicle.

Id. at 7. Appellant concludes that the evidence against her was so weak that

the trial court was prejudiced against her “because she is an African-American

woman who was pulled over by a white police officer.” Id. at 7-8.

      Preliminarily, we note Appellant fails to construe the record in a light

most favorable to the Commonwealth as the verdict winner.                   See

Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013)

(discussing a sufficiency of evidence challenge to DUI-general impairment).

By so doing, Appellant fails to present a proper, or meritorious, claim that the

evidence was insufficient to sustain her convictions. See Commonwealth v.

Segida, 985 A.2d 871, 879 (Pa. 2009) (discussing permissible evidence in a

DUI-general impairment prosecution, including “manner of driving and ability

to pass field sobriety tests” and “physical appearance, particularly bloodshot

eyes and other physical signs of intoxication; odor of alcohol, and slurred

speech”).

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      Instead, Appellant’s arguments suggest that the defense’s evidence was

of such greater weight than Officer Sanger’s uncorroborated testimony that

sustaining the verdict would deny justice. See Appellant’s Brief at 6-7, 11-

12; see also Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000)

(discussing the elements of a weight of evidence claim).        Therefore, we

construe Appellant’s argument as a weight of the evidence claim.

      However, Appellant did not challenge the weight of the evidence before

sentencing in an oral or written motion.       See Pa.R.Crim.P. 607(1)-(2).

Although trial counsel raised a weight of the evidence claim in a post-sentence

motion, that motion was not timely filed. Thus, the apparent untimeliness of

Appellant’s counseled post-sentence motion operates as waiver of Appellant’s

weight of the evidence claim. Cf. Commonwealth v. Magnum, 654 A.2d

1146, 1148 (Pa. Super. 1995) (noting that a discretionary aspect of sentence

claim will be waived where it was not preserved in an objection at sentencing

or a timely post-sentence motion).

      We could remand this matter to determine whether there was a

breakdown or interruption of court operations excusing the one-day delay in

the filing of Appellant’s post-sentence motion. However, the trial court denied

Appellant’s counseled post-sentence motion on its merits within thirty days of

sentencing. The court also elected to address the claims in Appellant’s pro se

Rule 1925(b) statement, including Appellant’s contention that the court

abused its discretion in crediting Officer Sanger’s testimony. Therefore, we




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will address the claim, particularly since our review compels the conclusion

that a remand would be an unnecessary use of judicial resources.

      The standard of review governing a challenge to the weight of the

evidence is well settled.

      [T]he 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 [trial] court’s 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 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. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012) (citation

omitted).

      Here, the trial court addressed Appellant’s challenge to its credibility

determinations noting that it “resolved the relevant credibility issues in favor

of the officer presented by the Commonwealth and rejected the testimony of

[Appellant] and her witnesses.”    Trial Ct. Op. at 13.    The trial court fully

explained its credibility determinations. See id. at 11-12. The court correctly

concluded that it was within its purview as the fact-finder to make the relevant

credibility determinations and reject the testimony of Appellant’s witnesses.

      We add that “[a] court is not required to decide an issue in favor of the

party having the largest number of witnesses who testify in support of that

party’s position.” Westinghouse Elec. Corp. v. Bd. of Prop. Assessment,


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Appeals & Review of Allegheny Cty., 652 A.2d 1306, 1312 n.3 (Pa. 1995)

(citation omitted); accord Commonwealth v. Wolfe, 81 Pa. Super. 512

(1923); Pa. SSJI (Crim.) § 7.04(1) (number of witnesses). Thus, the fact that

the trial court credited the testimony of Officer Sanger, the Commonwealth’s

only witness, over that of Appellant and her three witnesses did not evince an

abuse of discretion by the court. Similarly, the trial court’s weighing of the

evidence did not establish the court’s prejudice against Appellant based on

racial considerations.

       Having reviewed the record, we discern no abuse of discretion in the

court’s ultimate determination that Appellant “failed to demonstrate that the

verdict in this matter served to shock one’s sense of justice.” See Shaffer,

40 A.3d at 1253. Thus, Appellant’s first claim warrants no relief.

       Appellant next claims that trial counsel was ineffective for failing to seek

reconsideration of the verdict.        Appellant’s entire argument consists of the

following two sentences: “After the bench trial had concluded, and once the

judge[] entered a guilty verdict against [Appellant], she urged her attorney to

file a motion to reconsider verdict. [Appellant] did ask the attorney to file this

motion on multiple occasions but the trial attorney refused to do so.”5

Appellant’s Brief at 13.

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5 Appellant cites no law and provides no analysis. Thus, this Court could deem
this claim waived based on a defective brief. See Pa.R.A.P. 2101, 2119;
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (reiterating
that “[t]his Court will not act as counsel and will not develop arguments on



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       The general rule, however, is that a defendant’s challenge to the

effectiveness of trial counsel should be deferred to a collateral proceeding

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Although there

are narrow exceptions under which the trial court may consider claims on

ineffectiveness on direct appeal, a defendant must first allege ineffective

assistance of counsel in the trial court before taking an appeal.6         See

Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013).                   Here,

Appellant did not challenge trial counsel’s effectiveness in the trial court and

raised the issue for the first time on appeal in her pro se Rule 1925(b)

statement.     Therefore, the claim could be deemed waived.      See Pa.R.A.P.

302(a).

       In any event, because we have concluded that Appellant’s weight of the

evidence claim lacked merit, there is no basis to conclude that trial counsel’s

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behalf of an appellant” and may find certain issues waived if a defect in an
appellate    brief   impedes    meaningful     review    (citation  omitted));
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003) (noting
that “although this Court is willing to construe liberally materials filed by a
pro se litigant, pro se status generally confers no special benefit upon an
appellant” (citation omitted)).

6A short sentence such as Appellant’s six-month probationary sentence could
constitute good cause to permit consideration of her ineffectiveness claim.
See Holmes, 79 A.3d at 564 & n.1. However, the trial court would have to
hold a hearing, and Appellant would also have to waive future PCRA review to
permit review of her ineffectiveness claims in this direct appeal. Id. at 564.




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failure to file a motion for reconsideration of the verdict or a timely post-

sentence motion resulted in prejudice. See Commonwealth v. Reaves, 923

A.2d 1119, 1131-32 (Pa. 2007) (concluding that trial counsel’s failure to file a

motion to modify sentence did not result in prejudice as there was no reason

to believe that the trial court would have reduced the sentence).      Therefore,

Appellant’s suggested claim that trial counsel was ineffective for filing a motion

for reconsideration of the verdict warrants no relief.7

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/26/2018




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7 It is unclear whether Appellant has completed serving her sentence. If she
has done so, she would be precluded from seeking PCRA relief. See 42 Pa.C.S.
§ 9543(a)(1)(i) (requiring that a PCRA petitioner be serving a sentence of
probation “at the time relief is granted”). To the extent the trial court stayed
the sentence pending appeal, our decision to address Appellant’s ineffective
assistance counsel claim in the alternative shall not limit her right to seek
PCRA relief in the future.

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