J-S07040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
              v.                            :
                                            :
SEZAN HESSOU,                               :
                                            :
                   Appellant                :            No. 679 MDA 2016

            Appeal from the Judgment of Sentence January 27, 2016
               in the Court of Common Pleas of Dauphin County,
               Criminal Division, No(s): CP-22-CR-0005099-2014

BEFORE: BOWES, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED MARCH 30, 2017

Sezan Hessou (“Hessou”) appeals from the judgment of sentence imposed following his c

        In its Opinion, the trial court set forth the relevant factual and

procedural background of this case, which we adopt for the purpose of this

appeal. See Trial Court Opinion, 6/17/16, at 1-9.

        On appeal, Hessou raises the following issues for our review:

        1. Whether the trial court erred in denying [Hessou’s] post-
           sentence Motion[,] where the finding of guilt was against the
           weight of the evidence so as to shock one’s sense of justice[,]
           where the Commonwealth never showed that [Hessou] was
           under the combined influence of alcohol and a drug or
           drugs[,] nor to a degree that rendered him incapable of safe
           driving?

        2. Whether the Commonwealth failed to present sufficient
           evidence to sustain [Hessou’s] convictions[,] where the
           Commonwealth did not prove that [Hessou] was under the
           influence of alcohol and a drug or drugs[,] rendering him
           incapable of safe driving?



1
    See 75 Pa.C.S.A. §§ 3802(a)(1), (d)(2), 3714(a).
J-S07040-17


Brief for Appellant at 7 (issues renumbered for ease of disposition, some

capitalization omitted).

      In his first issue, Hessou contends that his “conviction was against the

weight of the evidence[,] where the testimony showed that [he] never left

his lane of travel, passed the one[-]legged stand field sobriety test[,] and

blew a .073 [percent] result on the preliminary breath test (“PBT”).” Id. at

20-21. Hessou asserts that “[a] .073 percent reading on a [PBT] is below

the permissible blood alcohol level for a tier one (1), general impairment

[DUI] charge.” Id. at 21.

      In its Opinion, the trial court addressed Hessou’s first issue, set forth

the relevant law, and concluded that the issue lacks merit. See Trial Court

Opinion, 6/17/16, at 9-11. We agree with the reasoning of the trial court,

and affirm on this basis as to Hessou’s first issue. See id.; see also id. at

5-9 (wherein the trial court set forth, in detail, the evidence supporting

Hessou’s convictions).

      In his second issue, Hessou challenges the sufficiency of the evidence

underlying his convictions. Brief for Appellant at 17-19.

      Hessou failed to raise this claim in his Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.       See Commonwealth v.

Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that, if an appellant is directed

to file a concise statement of matters to be raised on appeal pursuant to

Pa.R.A.P. 1925(b), any issues not raised in that statement are waived); see



                                  -2-
J-S07040-17


also Pa.R.A.P. 1925(b) (providing that “[a] failure to comply with such

direction may be considered by the appellate court as a waiver of all

objections to the order, ruling or other matter complained of.”).   Because

Hessou did not raise this issue in his Concise Statement, he failed to

preserve it for our review.2

      Judgement of sentence affirmed.




2
  Although the issue was not raised by Hessou, we are mindful that his
refusal to submit to a blood alcohol test, following his arrest for driving
under the influence, could implicate the recent United States Supreme Court
holding in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). In
Birchfield, the Supreme Court concluded that “a breath test, but not a
blood test, may be administered as a search incident to a lawful arrest for
drunk driving.” Id. at 2185. Additionally, the Supreme Court held that
blood tests taken pursuant to implied consent laws are an unconstitutional
invasion of privacy. Id. at 2186. The Supreme Court stated that “motorists
cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” Id.; see also id. (concluding that the
petitioner could not be convicted of refusing a warrantless blood draw
following an arrest for driving under the influence). Here, the trial court
sentenced Hessou on his conviction under 75 Pa.C.S.A. § 3802(d)(3)
(driving under the influence of alcohol - combination of alcohol and drugs),
which triggered the imposition of penalties under 75 Pa.C.S.A. § 3804(c)(1).
Notably, the penalties provided by section 3804(c)(1) are also triggered
when a defendant is convicted of section 3802(a)(1) (driving under the
influence of alcohol – general impairment), and the defendant refuses to
consent to a blood or breath test. Thus, Birchfield is implicated when a
defendant is convicted under section 3802(a)(1), and penalties are imposed
under section 3804(c)(1) based on a refusal to submit to a blood alcohol
test. However, as Hessou was sentenced under section 3804(c)(1) solely
based on his conviction under section 3802(d)(3), Birchfield is not
implicated.


                                -3-
J-S07040-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2017




                          -4-
                                                                            Circulated 02/27/2017 04:14 PM




                                                                            'JUN 17 2015
COMMONWEALTH OF PENNSYLVANIA                          IN THE COURT OF COMMON PLEAS
                                                      DAUPHIN COUNTY, PENNSYLVANIA
                          v.
                                                      NO.   679 MDA 2016
SEZAN P. HESSOU,
             Defendant                                TRIAL COURT NO. 5099 CR 2014

                                           OPINION
                                 [Pursuant to Pa. R.A.P. 1925(a)]

          Presently before the Superior Court of Pennsylvania is the appeal of Sezan P.

Hessou (hereinafter "Defendant" or "Appellant") from our Order- of April 11, 2016

denying his Amended Post-Sentence Motion.

PROCEDURAL HISTORY

          On May 29, 2014, Defendant was charged with the following:

              •   Count One (1) - Driving Under the Influence ("DUI"): General - 1st
                  Offense":
                           '
              •   Count Two (2) - DUI: Controlled Substance - Impaired Ability - 1st
                  Offense2·,

              •   Count Three (3) - DUI:           Controlled Substance -      Combination
                  Drugs/Alcohol- 1 s Offense3;

              •   Count Four (4) - Marijuana Small Amount Personal Use";

              •   Count Five (5) - Use/Possession of Drug Paraphernalia5;

              •   Count Six (6) - Driving Without a License";

              •   Count Seven (7)- Careless Driving7; and

              •   Count Eight (8) - No Headlights8.

1
  75   Pa.C.S.A. § 3802(a)(1).
2
  75   Pa.C.S.A. § 3802(d)(2).
3
  75   Pa.C.S.A. § 3802(d)(3).
4
  35   Pa.C.S.A. § 780-113(a)(31)(1).
5
  35   Pa.C.S.A. § 780-113(a)(32).
6
  75   Pa.C.S.A. § 1501 (a).
7
  75   Pa.C.S.A. § 3714(a).
8
  75   Pa.C.S.A. § 4303(a).

                                           Page 1 of 12
        On ·June 12, 2015, Defendant, through counsel, filed an Omnibus Pretrial Motion

to Suppress.     A suppression hearing was held before the Honorable Richard A Lewis

on July 8, 2015.9       At the conclusion of the hearing, President Judge Lewis denied

Defendant's Motion to Suppress, and listed the case for the August 17, 2015 trial term.

        Defendant was scheduled for a bench trial before the Honorable William T. Tully

on August 21, 2015. Afterfailing to appear, this Court issued a bench warrant and

granted the Commonwealth's request to proceed with the bench trial in absentia. With

regard to Defendant's failure to appear, defense counsel stated the following:

                    I received . a voicemail . from an unknown female
             advising me that she was a friend of his and that he was in
             the emergency department. She did not leave a name, she
             did not tell me where. I was not able to reach anyone when I
             returned the number.
                    My secretary did - I had my secretary call all the
             emergency departments in the area, actually five of them.
             From what she was told he has not been admitted or a
             patient at any of them.
(Notes of Testimony, Bench Trial 8/21/15 at p. 4).

In addition, defense counsel stated that Defendant was notified of the August 21, 2015

bench trial one (1) week prior at the conclusion of his jury trial on docket number CP-22-

CR-6480-2014. Therefore, the bench trial continued without Defendant present.

        At the conclusion of the bench trial, this Court found Defendant guilty on Counts

3, 4 and 6, and not guilty on Counts 1, 2, 7, and 8. Count 5. was withdrawn by the

Commonwealth. On August 28, 2015, Defendant, through counsel, filed a Motion to Lift

Capias stating that he failed to appear because he was being treated at PinnacleHealth

Emergency Services at the time. Defendant attached medical documentationto support


9
 During the August 21, 2015 bench trial, counsel entered the transcript from the Suppression Hearing as
Commonwealth's Exhibit 1, and stipulated that the Court could incorporate that testimony in reaching a
verdict at the bench trial.

                                            Page 2 of 12
his position.          This Court lifted the capias and scheduled sentencing for September 15,

2015.          Defendant again failed to appear for court on September 15, 2015 and a bench

warrant was issued.                The bench warrant was returned on October 28,· 2015 as

Defendant was found to be incarcerated in the York County Prison.

               On October 30, 2015, a Rule 150 hearing was held before this Court. Bail was

set at $2,500 unsecured with pretrial services, and sentencing was scheduled for

December 16, 2015, which was subsequently continued to January 6, 2016. Following

a discussion on the record between counsel, Defendant and the Court on January 6,

2016, sentencing was again continued to January 27, 2016.10

               Defendant filed a Motion in Arrest of Judgment and New Trial on January 19,

2016. In his Motion, Defendant argues that he was unavailable for trial on August 21,

2015 due to medical reasons, and provided medical records to support his position.

Prior to the commencement of sentencing on January 27, 2016, the Court heard
                                                                                            11
testimony and argument on Defendant's Motion for Arrest of Judgment and New Trial.

After reviewing the medical records provided, the Court was concerned that it may not
     .                                                                       .
have been a good faith medical visit since Defendant left the hospital before being

medically discharged, and contradicted himself on at least two (2) occasions statlng at

one point he was having shortness of breath and another he was not. After hearing

Defendant's explanation for failing to appear on direct, and. giving the Commonwealth

an opportunity to cross-examine, this Court denied Defendant's Motion for a New Trial.

               On January 27, 2016, Defendant was sentenced as follows:




10
         See Notes of Testimony, Sentencing 1/6/16.
11
         See Notes of Testimony, Sentencing, 1/27/16 at 3-19 .

                                                  . Page 3 of 12
                             · .•   I




                  •   Count 1 - merged with Count 3;12

                  •   ,Count 2 =rnerqed with Count 3;

                  •   Count 3 - seventy-two (72) hours to six (6) months incarceration at
                      Dauphin County Prison with time credit for three (3) days in which
                      Defendant spent in York County Prison;

                  •   Count 4 - thirty (30) days of probation concurrent with Count 3;

                  •   Count 5 -withdrawn by the Commonwealth;

                  •   Count 6 - no further sentence;

                  •   Count 7 - merged with Count 3; and

                  •   Count 8 - merged with Count 3.

        Defendant filed a Post-Sentence Motion on February 5, 2016, and subsequently

filed an Amended Post-Sentence Motion on February 8, 2016. The Commonwealth

filed a response to Defendant's Amended Post-Sentence Motion on February 17, 2016.

On April 11, 2016, this Court denied Defendant's Amended Post-Sentence Motion.

Defendant filed a Notice of Appeal on April 22, 2016. On April 27, 2016, Defendantwas

directed to file a Concise Statement of Errors Complained of on Appeal (hereinafter

. "Statement").

Appellant'sStatements of Errors Complained of on Appeal

       Appellant alleges the following errors:

        1. The trial court erred in denying Appellant's Post-Sentence Motion as the
           verdict was against the weight of the evidence so as to shock one's sense of
           justice where the Commonwealth failed to prove beyond a reasonable doubt
           that Petitioner was under the influence of a drug, alcohol, or a combination of
            both when he operated his vehicle and the Commonwealth failed to prove
           that Petitioner was unable to drive safely for reasons including, but not limited
           to, video that is contradictory to the officer's testimony, Petitioner's vehicle did
12
  The Court notes that there is a discrepancy between the transcript and the docket entries. Appellant
was found not guilty on Counts 1 and 2 and should not have been sentenced. As there was no additional
sentence for Counts 1 and 2, it is a harmless error.

                                            Page 4 of 12
             not leave the lane of travel for approximately two miles, the PBT reading of
             .073 percent, et al.13                             .                      .


      2. The trial court abused its discretion in sentencing Appellant to seventy two
         (72) hours to six (6) months in Dauphin County Prison where the sentence
         was excessive and unreasonable constituting too severe a punishment in light
         of the rehabilitative needs of the defendant, what is necessary to prated the
         public, and where the punitive measures inherent in this sentencing schemed
         could have been accomplished with the imposition of a lesser sentence as the
         offenses are ungraded misdemeanors and summaries.
(Statement of Errors, May 18, 2016).

FACTUAL BACKGROUND
        On May 17, 2014, Trooper Erik Cummings (hereinafter "Trooper Cummings")

was on routine patrol in a marked police vehicle and fully uniformed. (Notes of

Testimony, Bench Trial 8/21/15 ("N.T. Bench Trial") at 8). At approximately 1 :09 AM.,

he attempted to merge onto State Route,322, SR/22 eastbound towards Harrisburg at

the Watts exit14 when he observed a vehicle travelling eastbound with a non-functioning

driver's side headlight. (N.T. Bench Trial at 8-9). Trooper Cummings testified that he

observed the headlight to be completely out. (Notes of Testimony, Suppression Hearing

7/8/15 (N.T. Suppression") at 8).            · Appellant was later identified to be the individual

driving the vehicle. (N.T. Suppression at 10).                Trooper Cummings then slowed his

vehicle down in an attempt to get behind Appellant's vehicle. (N.T. Bench Trial at 9).

Appellant also slowed down causing Trooper Cummings to slow down even more until

he eventually slowed to approximately fifteen (15) to twenty (20) miles per hour before

the vehicle passed his and he was able to get behind it. (~)



13
   While Appellant asserts a challengeto the weight of the evidence, he improperly uses the standard for
a sufficiency of evidence challenge as support for his position. This Court will treat it as a challenge to
the weight of the evidence.                                                                       ·
14
   The on-ramp merges from left to right merging into the fast lane as opposed to most other on-ramps.
(N. T. Bench Trial at 8).

                                              Page 5 of 12
       Before initiating the traffic stop, Trooper       Cummings   followed Appellant   for

approximately two (2) miles observing the vehicle's movements, as well as running a

check of the license plate. (N.T. Suppression at 12; N.T. Bench Trial at 10): He testified     ! ..


that he always performs a check of the vehicle prior to initiating a traffic stop so that he

has an idea as to who may be driving the vehicle. (N.T. Suppression at 12).            While

following, Trooper Cummings observed Appellant's vehicle engage in an abrupt swerve

within the lane of travel. (N .T. Suppression at 12; N.T. Bench Trial at 10).   Thereafter,

Trooper Cummings initiated the traffic stop for the non-functioning       headlight.   (N.T.

Suppression    at 14).   After slight hesitation, Appellant pulled over and stopped,     and

when Trooper Cummings exited his vehicle he noticed the reverse lights activate on

Appellant's   vehicle, and stay activated for approximately six (6) seconds before the

vehicle was placed in park. (N.T. Bench Trial at 11 ).

       When Trooper Cummings approached the vehicle, he informed Appellant as to

why he pulled him over, and asked for his driver's license and registration. (N.T.

Suppression    at 25).   Appellant handed Trooper Cummings a driver's license and an

expired registration, Trooper Cummings handed back the expired registration and asked

for a valid one, Appellant then handed Trooper Cummings his emissions test, to which

he replied that he needed a registration not an emissions test. (N.T. Suppression at 38-

39; N.T. Bench Trial at 17). Trooper Cummings testified that Appellant struggled with

providing the correct documents. (kl)      After running a check of Appellant's driver's

license, Trooper Cummings learned that it was expired. (N.T. Bench Trial at 18).

       Upon approaching the vehicle, Trooper Cummings observed that Appellant could

barely open his eyes, was covered in sweat with what appeared to be blonde hair stuck



                                       Page 6 of 12
to his face and arms, and spoke very slowly. (N.T. Bench Trial at 12; N.T. Suppression

at 26).    Further, he testified that Appellant seemed very· lethargic, had dilated pupils,

and that he could smell the odor of alcohol on Appellant's breath. (N.T. Bench Trial at
··-

 13). When questioned, Appellant admitted that he had one (1) alcoholic beverage at

some point prior to driving. (N.T. Bench Trial at 13-14).

          At that point, Trooper Cummings believed Appellant was under the influence of

alcohol or a controlled substance or a combination of both, and asked Appellant to step

out of the vehicle and submit to field sobriety tests. (N.T Bench Trial at 13-14). He also

asked Appellant if there was anything in the vehicle that he needed to be concerned

with, and Appellant replied no and consented to a search of the vehicle. (N.T. Bench

Trial at 14). Trooper Cummings administered the horizontal gaze nystagmus ("HGN"),

walk and turn, and one-leg stand tests. (N.T. Suppression at 29). Appellant did poorly

on the HGN and walk and turn tests, but did pass the one-leg test. (N.T. Suppression at

29-3.1). In the walk and tum test, Appellant missed heel to toe, stepped off the line, and

 raised his arms forbalance, (N.T. Suppression at 31).

          Following the field sobriety test, Trooper Cumrninqs administered a preliminary

 breath test ("PBT") which showed a .073 percent result. (N.T. Suppression at 32).

Appellant admitted he had one alcoholic beverage, but did not state how long prior to

driving. (N.T. Suppression at 32; N.T. Benchn Trial at 13-14). Appellant denied using

any controlled substance. iliL.)        After conducting the field sobriety tests and

administering the PST, Trooper Cummings placed Appellant under arrest for DUI. (N.T.

Suppression at 33). A search incident to arrest of Appellant's person revealed a small

metal pipe with steel wool in the end of it, which is known to Trooper Cummings to be



                                        Page 7 of 12
drug paraphernalia through his experience and training.     (N.T. Suppression at 35-37;

N.T. Bench Trial at 19). · A subsequent lab test of the metal pipe indicated that it

contained cocaine residue. (N.T. Bench Trial at 22).     A search of Appellant's vehicle
..    .

revealed a metal tin with a green leafy substance that was later identified by the lab as

marijuana. (N.T. Suppression at 35; N.T. Bench Trial at 20, 22). He also found a bottle

that smelled like it contained alcohol. (N.T. Bench Trial at 26). Trooper Cummings

dumped the liquid on the side of the road and put the empty bottle back in Appellant's

vehicle. (N.T. Bench Trial at 27).

          Thereafter, Appellant was transported to the Pennsylvania State Police ("PSP")

barracks in Newport where Trooper Cummings asked Appellant to do a blood draw and

administered the O'Connell warning. (N.T. Suppression at 33; N.T. Bench Trial at 23).

Trooper Cummings informed Appellant that if he refused to sign the DL-26 form or

refuse the blood test, his license would be automatically suspended for up to a year by

PennDOT. (N.T. Suppression at '33).        Appellant responded that he did not believe

Trooper Cummings had enough evidence to arrest him. (N.T. Suppression at 33-34).

Trooper Cummings reiterated to Appellant that no matter what, he will lose his license if

he refuses to submit to a blood test. (N.T. Suppression at 33; N .T. Bench Trial at 25).

Appellant ultimately refused the blood test and signed the appropriate area on the DL-

26 form. (N.T. Suppression at 35; N.T. Bench Trial at 23-24).

          Upon release from custody, Appellant was transported to _his friend's house and

informed that he was free to leave and would receive paperwork in the mail. (N.T.

Bench Trial at 25). Trooper Cummings testified to the following interaction between him

and Appellant upon his release:



                                        Page 8 of 12
                     And he asked, Well, why was I arrested?
                     And I said, You were arrested for DUI.
                     And he said, but I wasn't drunk. I didn't drink that
                     much.
                     I said, Well I don't believe it was just alcohol.
                     believe that you had some sort of cirwg or narcotic in
                     your system too.
                     And he said, I just smoked a little bit of cocaine.
(N.T. Bench Trial at 25-26).                         ·         ·


DISCUSSION

A. THE GUil TY VERDICTS WERE· NOT CONTRARY TO THE WEIGHT OF THE
   EVIDENCE.

      On· appeal, Appellant alleges that this Court erred in denying his Amended Post-

Sentence Motion because the verdict was against the weight of the evidence.

Specifically, he argues that the Commonwealth failed to prove that Appellant was under

the influence of a drug, alcohol, or combination of both when he operated his vehicle,

and failed to prove he was unable to drive safely.

       It is well established that:

    A true weight of the evidence challenge 'concedes that sufficient evidence
    exists to sustain the verdict' but questions which evidence is to be
    believed. An appellate court may review the trial court's decision to
    determine whether there was an abuse of discretion, but it may not
    substitute its judgment for that of the lower court. Indeed, an appellate
    court should not entertain challenges to the weight of the evidence since
    [the appellate court's] examination is confined to the "cold record" [and]
    may not reverse a verdict unless it is so contrary to the evidence as to
    shock one's sense of justice.
Commonwealth v. Galindes, 786 A.2d 1004, 101.1 (Pa. 2001) (internal citations

omitted). In reviewing the trial court's denial of a motion for a new trial based upon a

challenge to the weight of the evidence, the appellate court will give "the gravest

consideration to the findings and reasons advanced by the trial judge."15


15
     Commonwealth v: Widmer, 744 A.2d 745, 753 {Pa. 2000) {internal citations omitted).

                                              Page 9 of 12
                                                                                               ;'·


                                                                                              .;I·~
                                                                                                · -.

       In the instant case, the evidence supports the guilty verdicts of DUI. As cited at

length above, the evidence shows that Trooper Cummings first noticed a vehicle driving        !.
with a non-functioning driver's side headlight.     Prior to conducting the traffic stop,

Appellant intentionally slowed the speed of his vehicle in an attempt to avoid Trooper

Cummings from following his vehicle. While following Appellant's vehicle, Trooper

Cummings observed Appellant make an abrupt swerve, but admitted Appellant's vehicle

did not leave the lane of travel in doing so. Upon initiating the traffic stop, Trooper

Cummings observed Appellant's eyes to be barely open, he had slurred speech, he was

lethargic, he had dilated pupils, his breath smelled of alcohol, and he was very sweaty.

Appellant also had difficulty providing his driver's license and registration. It was later

learned that Appellant's driver's license and registration were expired.       In addition,

Appellant did poorly on two (2) of the three (3) field sobriety tests. Based upon the

totality of the circumstances, Trooper Cummings had probable cause to believe that

Appellant was driving under the influence of alcohol, a controlled substance, or a

combination of both.

       Prior to the field sobriety tests, Appellant gave Trooper Cummings consent to

search his vehicle. However, it was not until after Appellant was arrested that his

vehicle and person were search. A search incident to arrest revealed a metal pipe with

steel wool at the end, which Trooper Cummings testified that based upon his

experience and training, is known to be drug paraphernalia. A subsequent lab tested

indicated the pipe had cocaine residue on it. In the vehicle-Trooper Cummings found a

bottle of what he believes contained an alcoholic beverage and a tin that contained a




                                      Page 10 of 12
                                                                                                    r.




leafy substance later confirmed to be marijuana.            Further, upon being released from

custody, Appellant admitted to Trooper Cummings that he smoked some cocaine.

       Accordingly,   this Court did not err in denying Appellant's             Amended    Post-

Sentence    Motion as the evidence supported the verdict, and the verdict was not

contrary to the weight of the evidence so as to shock the conscience of the Court.


B. THE SENTENCE IS REASONABLE AND DOES NOT CONSTITUTE TOO SEVERE
   A PUNISHMENT.

   Appellant also contends that this Court abused its discretion in sentencing Appellant

to seventy-two    (72) hours to six (6) months in Dauphin County Prison because the

sentence    is excessive    and unreasonable          constituting   too severe a punishment.

Appellant   was   sentenced     on   Count Three        (3) - DUI:     Controlled   Substance   -

Combination Drugs/Alcohol - 1st Offense pursuant to 75 Pa.C.S.A. § 3802(d)(3).              The

statutory section regarding penalties for DUI reads:

              (c) Incapacity; highest blood alcohol; controlled substance -
              An individual who violates section 3802(a)(1) and refused
              testing of blood or breath or an individual who violates
              section 3802(c) or (d) shall be sentenced as follows:

                      ( 1) For a first offense, to:

                              (i) undergo imprisonment of not less than 72
                              consecutive hours.

                                              ***

             (g) Sentencing guidelines - The sentencing guidelines
             promulgated   by the      Pennsylvania Commission     on
             Sentencing shall not supersede the mandatory penalties of
             this section.
75 Pa.C.S.A. § 3804.

       This Court sentenced Appellant to the· mandatory minimum of not less than

seventy-two (72) hours of imprisonment and Dauphin County Prison. Under the statute,

                                         Page 11 of 12
this Court did not have the discretion to sentence Appellant to anything below that.

Appellant was also given time_ credit for three (3) days that he spent in York County

Prison.     As a result, Appellant did not serve any period of imprisonment         in Dauphin

County Prison on this sentence, and was immediately paroled.

          Based upon the history of the case, Appe!lant's failure to appear on more than

one occasion, the lack of a credible reason for Appellant's        absence, the evidence

presented at the bench trial, and Appellant's overall criminal history, this Court was

more than fair in sentencing Appellant.

          Accordingly, we ask the Superior Court of Pennsylvania to affirm the Order of

April 11, 2016 denying Appellant's Amended Post-Sentence Motions, and dismiss the

appeal in this matter.




                                                 Respectfullysubmitted:




                                                  William T. Tullyf J.




                                                                                            ·~-
                                                                                             --
                                                                                   - -···
                                                                              'L    ,.-,•


                                                                                                      .. :   ··;
                                                                                                                   -·(···.-·
                                                                                                       ____ e- ., ..•
                                                                                                      ·~' ·--··'
                                                                                                      ~-- ·- -·         ·-·.
DISTRIBUTION:                                                                               (.:,,_)

Abby N. Trovinger, Esquire - District Attorney's Office
Ashley D. Martin, Esquire - Public Defender's Office -1',,l;;
Clerk of Courts                            .           _,,,.
Court Administration
FILE



                                      Page12of12
