J-S37028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                   v.

RONALD VANDEMARK

                         Appellant                 No. 2030 MDA 2013


    Appeal from the Judgment of Sentence entered November 26, 2013
             In the Court of Common Pleas of Wyoming County
             Criminal Division at No: CP-66-CR-0000264-2012


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                   FILED SEPTEMBER 29, 2014



26, 2013 judgment of sentence imposing 15 months to 5 years of

incarceration for driving under the influence of alcohol, 75 Pa.C.S.A.

§ 3802(a)(1). We affirm.




truck driving erratically and crossing the double yellow line into the

oncoming traffic lane.    N.T. Trial, 8/19/13, at 32-

vehicle remained in the oncoming lane for approximately 100 feet.    Id. at

35-36. Sidorek activated his emergency lights and sirens, but Appellant did

not stop immediately. Id.

vehicle crossed into the oncoming lane twice and remained there for
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distances of 50 to 100 feet. Id.

                                            Id. at 38.

     Appellant eventually turned right onto Marcy Road and pulled over and

stopped in a field.   Id. at 39.   Appellant exited his vehicle immediately,

stumbled, and fell to the ground. Id. at 39-40. Sidorek ordered him back

into the vehicle. Id. at 40. When Sidorek asked Appe

license and vehicle registration, Appellant smelled of alcohol.        Id. at 42.

                                                         Id.

was slurred. Id. at 46. Two more patrolmen arrived on the scene, and one

of them asked Appellant to step out of his vehicle.       Id. at 43.    Appellant

exited his vehicle, stumbled, and fell to his knees. Id. The officers did not

perform a field sobriety test because Appellant was unable to walk. Id. at

                                                                              Id.

at 45. Sidorek arrested Appellant for DUI and drove him to a local hospital,

where Appellant refused consent to have blood drawn. Id. at 43, 45, 49.

     The matter proceeded to an August 19, 2013 jury trial, at which the

prosecution tried Appellant for DUI (75 Pa.C.S.A. § 3802(a)), fleeing and

eluding police (75 Pa.C.S.A. § 3733), driving on a license previously

suspended for a DUI offense (75 Pa.C.S.A. § 1543(b)(1)), and related

summary offenses.     The trial court imposed sentence for DUI as set forth

above, and imposed concurrent sentences, fines, or no further penalty on

the remaining charges. This timely appeal followed.


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      Appellant raises two assertions of error.       First, he asserts the trial

court erred in denying his motion to continue when his friend did not appear

to testify during the first day of trial. Second, he asserts the trial court erred

in admitting evidence of his prior DUI convicti

Upon review, we find no merit in either.



continue. We conduct our review as follows:

           A decision to grant or deny a continuance rests within the
      sound discretion of the trial court. We will not reverse a trial

      prejudice to the defendant. [A]n abuse of discretion is not
      merely an error of judgment. Rather, discretion is abused when
      the law is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will, as shown by the evidence or the record. In
      reviewing the denial of a continuance, we have regard for the
      orderly administration of justice as well as the right of a criminal
      defendant to have adequate time to prepare his defense.

Commonwealth v. Flor, 998 A.2d 606, 620 (Pa. 2010) (internal citations

and quotation marks omitted), cert. denied 131 S. Ct. 2102 (2011).



appellant of the opportunity to call a witness, we consider the following

factors:

            [T]he   necessity    of   the   witness   to
                                                       strengthen the
                                                                 o the
      defendant's defense; the diligence exercised to procure his or
      her presence at trial; the facts to which he or she could testify;
      and the likelihood that he or she could be produced at court if a
      continuance were granted.




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Commonwealth v. Small, 741 A.2d 666 (Pa. 1999), cert. denied, 531 U.S.

829 (2000).




                                       t that Politis could not attend because

of a death in his family. Id. Appellant did not subpoena Politis in advance.

Appellant believed a subpoena was unnecessary because Politis was his

friend.   Id.   Politis would have testified that he was with Appellant




                                                                         Id. at

17-18.

      The trial court declined to continue the case. The court considered the

motion untimely because it had already empaneled a jury.            Trial Court

Opinion, 3/6/14, at 2. Appellant argues a continuance was warranted under

Small                                                           e and because



his failure to issue a subpoena was not the result of a lack of diligence, as he

believed it unnecessary to subpoena a friend.

      We discern no abuse of discretion

to subpoena Politis, Appellant left himself at the mercy of unforeseen




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when the time arrived. Appellant failed to alert the court to Po

or potential absence, until after the court empaneled a jury. Thus, Appellant

has not demonstrated diligence, and we cannot conclude the trial court

abused its discretion in determining that a continuance would have

hampered the administration of justice.

        Further, we do not believe Politis was an essential defense witness, or




approximately 90




                                                         y observed Appellant

to be intoxicated at the time of the arrest and that Appellant refused a blood

test.   In addition, Appellant testified that another party, Gretchen Kurns,

was with Appellant and Politis. N.T. Trial, 8/19/13, at 125-27. Appellant did

not subpoena Kurns or call her as a witness, even though she presumably

could have testified to the same facts as Politis. Id. In any event, we have

already explained that those facts would not refute the testimony evincing

                               ime of the arrest, or his refusal to submit to a



        Next, Appellant argues the trial court erred in admitting evidence of a

prior DUI conviction. The evidence came in because Appellant was on trial


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for the summary offense of driving on a suspended license (prior DUI). 75

Pa.C.S.A. § 1543(b).1

                                                                       1543(b)

offense.    Appellant argues the trial for the § 1543(b) offense should have

been severed because the trial court serves as fact finder for summary

offenses.    Appellant also argues that the evidence of his prior DUI was

impermissible as other acts evidence, per Pa.R.E. 404(b)(1).          Appellant

finally argues the Commonwealth failed to give notice of its intent, per Rule

404(b)(3), to introduce prior acts evidence.

       Appellant objected to the admission of the DUI conviction at trial, N.T.,

8/19/13, at 51, but he did not move for severance of the summary charges.


____________________________________________


1
    Section 1543(b) provides as follows:

              (1) A person who drives a motor vehicle on a highway or
       trafficway of this Commonwealth
       operating privilege is suspended or revoked as a condition of
       acceptance of Accelerated Rehabilitative Disposition for a
       violation of section 3802 (relating to driving under influence of
       alcohol or controlled substance) or the former section 3731,
       because of a violation of section 1547(b)(1) (relating to
       suspension for refusal) or 3802 or former section 3731 or is

       Compact) for an offense substantially similar to a violation of
       section 3802 or former section 3731 shall, upon conviction, be
       guilty of a summary offense and shall be sentenced to pay a fine
       of $ 500 and to undergo imprisonment for a period of not less
       than 60 days nor more than 90 days.

75 Pa.C.S.A. § 1543(b).



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Since Appellant did not move to sever the summary offense, he cannot raise

that argument for the first time on appeal. Pa.R.A.P. 302(a).



improperly admitted other acts evidence.




                                                                 ather, the

prior DUI conviction was an element of a charged offense and therefore

admissible.   Since the Commonwealth offered the prior DUI as direct

evidence of the    charged offense, and not as other acts evidence pursuant

to Rule 404(b), the Commonwealth was not required to give notice. Notice

would have been redundant, as Appellant was on notice that he was charged

with a violation of §

of that offense.

      In summary, we have concluded that the trial court did not err in



DUI conviction. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2014




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