J-A19003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

KISHAN PATEL,

                          Appellant                    No. 2625 EDA 2016


       Appeal from the Judgment of Sentence Entered July 20, 2016
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-23-CR-0006450-2015


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED SEPTEMBER 25, 2017

      Appellant, Kishan Patel, appeals from the judgment of sentence of 5

years’ probation following his conviction for fleeing or attempting to elude a

police officer (hereinafter “Flight”), driving under the influence of alcohol or a

controlled substance (hereinafter “DUI”), and related Motor Vehicle Code

offenses. Appellant challenges the sufficiency of the evidence supporting his

DUI conviction, as well as the grading of his Flight offense.       After careful

review, we affirm.

      The trial court summarized the facts adduced at trial as follows:

      On August 12, 2015 at approximately 12:55 a.m. Marple
      Township, (Delaware County), uniformed police officers Nicholas
      Coffin and Sean Hannigan were on duty in an unmarked police
      car heading north on Springfield Road, and were stopped at a
      red light at the intersection of Springfield and Eagle Roads. After
      the red light turned green for the officers, a silver car coming off
      of Eagle Road turned left onto Springfield Road running a red
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      light and nearly striking the officers' car. The sliver car ran the
      red light at a high rate of speed, never slowing down.

            Officer Coffin immediately activated his lights and siren
      before making a U-turn and giving pursuit to the silver car. As
      he was giving chase Officer Coffin heard the silver car's engine
      rev up as it was pulling away from the police car. The police car
      was traveling between 90 and 100 miles per hour at this point in
      time, and the silver car was still pulling away from the police car.

            The pursuit continued until the silver car lost control trying
      to make a left hand turn on to the I-476 south bound on ramp,
      when it violently crashed into a guard rail twice, thereby
      disabling the car.

            The two police officers approached the crashed car on foot
      and identified [Appellant] as the driver, and the driver's sister as
      the front seat passenger.

            After Sergeant Brandon Graeff arrived at the crash scene
      in his marked patrol car Officer Coffin had a brief conversation
      with [Appellant]'s sister. He testified as follows:

         []I just asked her where they were coming from, why they
         didn't stop, and initially I had said why didn't you stop?
         And she - - and the female stated that he was just scared,
         directing that towards the driver. And I said, well, when
         you see the red and blue lights, like why didn't he think to
         pull over? And she said, well, he was just scared. And I
         said, didn't you realize that it was a police car behind you?
         And she said I did, but he was just scared[.]

             There were three police officers at the scene and all three
      testified that [Appellant] smelled of alcohol.        [Appellant]
      admitted to Officer Hannigan that he had some drinks earlier in
      the day. Thereafter, Sergeant Graeff administered field sobriety
      tests, which [Appellant] failed. All three officers also testified
      that [Appellant] was not able to safely operate a motor vehicle.
      After failing the field sobriety tests[,] [Appellant] was
      transported to Springfield Hospital, where he ultimately refused
      to have his blood tested.

Trial Court Opinion (TCO), 12/5/16, at 1-3 (citations omitted).




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      On November 25, 2015, the Commonwealth charged Appellant by

criminal   information   with   Flight,   75   Pa.C.S.   §   3733;   DUI-general

impairment, 75 Pa.C.S. § 3802(a)(1); driving while operating privilege is

suspended or revoked, 75 Pa.C.S. § 1543; failure to stop at a red signal, 75

Pa.C.S. § 3112(a)(3)(i); exceeding the maximum speed limit, 75 Pa.C.S. §

3362(a); and reckless driving, 75 Pa.C.S. § 3736. On April 20, 2016, one

week before trial, the criminal information was amended to reflect that the

Commonwealth was charging Appellant with the felony grading of the Flight

offense.

      A non-jury trial was held on April 27-29, 2016. The trial court found

Appellant guilty of all the charged offenses, including the felony grading of

the Flight offense. The court initially sentenced Appellant on July 18, 2016,

but amended the imposed sentence on July 20, 2016. Ultimately, Appellant

was sentenced to five years’ probation for Flight, and to no further penalty

for the remaining offenses.     Appellant was also directed to comply with

several specific terms of probation (community service, drug and alcohol

evaluation, etc.) which are not relevant to the instant appeal.

      Appellant filed a timely notice of appeal, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement.         Appellant now presents the following

questions for our review:

      [A.] Whether the evidence was insufficient to sustain the
      conviction for driving under the influence since the
      Commonwealth failed to prove, beyond a reasonable doubt, that
      (1) Appellant imbibed a sufficient amount of alcohol such that it


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      (2) rendered him incapable of safely driving, operating, or being
      in actual physical control of the movement of a vehicle?

      [B.] Whether the sentence for fleeing and attempting to elude
      graded as a felony is illegal since facts supporting the amended
      felony grading were not properly alleged in the information, nor
      proven beyond a reasonable doubt?

Appellant’s Brief at 6.

      Appellant’s first claim concerns the sufficiency of the evidence

supporting his conviction for DUI – general impairment, pursuant to 75

Pa.C.S. § 3802(a)(1). Our standard of review of sufficiency claims is well-

settled:
             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      “[S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense,
      requiring that the Commonwealth prove the following elements:
      the accused was driving, operating, or in actual physical control
      of the movement of a vehicle during the time when he or she
      was rendered incapable of safely doing so due to the
      consumption of alcohol.” Commonwealth v. Segida, [] 985
      A.2d 871, 879 (Pa. 2009). With respect to the type, quantum,
      and quality of evidence required to prove a general impairment
      violation under Section 3802(a)(1), the Pennsylvania Supreme
      Court in Segida continued:


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         Section 3802(a)(1), like its predecessor [statute], is a
         general provision and provides no specific restraint upon
         the Commonwealth in the manner in which it may prove
         that an accused operated a vehicle under the influence of
         alcohol to a degree which rendered him incapable of safe
         driving.... The types of evidence that the Commonwealth
         may proffer in a subsection 3802(a)(1) prosecution include
         but are not limited to, the following: the offender's actions
         and behavior, including manner of driving and ability to
         pass field sobriety tests; demeanor, including toward the
         investigating officer; physical appearance, particularly
         bloodshot eyes and other physical signs of intoxication;
         odor of alcohol, and slurred speech. Blood alcohol level
         may be added to this list, although it is not necessary and
         the two hour time limit for measuring blood alcohol level
         does not apply. Blood alcohol level is admissible in a
         subsection 3801(a)(1) case only insofar as it is relevant to
         and probative of the accused's ability to drive safely at the
         time he or she was driving. The weight to be assigned
         these various types of evidence presents a question for the
         fact-finder, who may rely on his or her experience,
         common sense, and/or expert testimony. Regardless of
         the type of evidence that the Commonwealth proffers to
         support its case, the focus of subsection 3802(a)(1)
         remains on the inability of the individual to drive safely
         due to consumption of alcohol-not on a particular blood
         alcohol level.

      [Segida,] 985 A.2d at 879.

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013).

      Instantly, Appellant contends that the Commonwealth failed to prove

by sufficient evidence that he was under the influence of alcohol to an extent

that it rendered him incapable of safely driving. Appellant’s Brief at 14. To

support this claim, Appellant first argues that “[t]here was no testimony of

swerving, weaving, or any kind of unsafe driving other than his alleged

speeding.” Id. This aspect of Appellant’s claim is belied by the record. Not

only was Appellant driving in excess of 90-100 m.p.h., itself an unsafe

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driving condition, Appellant subsequently crashed his vehicle while engaging

in flight from police. Appellant’s behavior in this regard created substantial

risks to himself, his passenger, other drivers on the road, and the pursuing

police officers. Moreover, according to the officers’ testimony, Appellant was

initially observed running a red light, and he nearly struck the officers’ car

when he did so.        Clearly, the Commonwealth’s evidence adequately

demonstrated that Appellant was not just incapable of safely driving, but

that he was, in fact, driving unsafely at the relevant time.

      The more pertinent question, given these facts, is whether Appellant’s

unsafe driving was due to his consumption of alcohol.          In this regard,

Appellant argues that “[t]he first officer to arrive stated, on camera and

while still at the accident scene, that [Appellant] was not drunk.” Appellant’s

Brief at 15 (citing N.T., 4/27/16, at 73).    Appellant also refers to certain

testimony by officers that his eyes were only slightly bloodshot, and that

they only detected a slight odor of alcohol. Id.

      Appellant’s version of events presents an incomplete and cherry-

picked view of the Commonwealth’s evidence. Officer Coffin testified that he

detected an odor of alcohol emanating from Appellant. N.T., 4/27/16, at 35.

He observed that Appellant’s eyes were both “glassy” and “a little

bloodshot.” Id. at 37. He ultimately testified that based on his education,

training, and experience, the smell of alcohol, the appearance of Appellant’s

eyes, and the results of the sobriety tests conducted by Officer Graeff, that

Appellant was “impaired and unable to safely operate a vehicle.” Id. at 39.

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       Officer Hannigan testified that he could smell alcohol coming from

Appellant a few minutes after the crash. Id. at 100. He observed the field

sobriety test conducted by Officer Graeff.    Officer Hannigan stated that,

during those tests, Appellant “fail[ed] to wait for Sergeant Graeff to …

finishing giving directions before he began and … I also noticed that he

appeared unsteady on his feet on the walk and turn test.” Id. at 102. He

also heard Appellant state that he had “one drink earlier in the day or had

some drinks earlier in the day….” Id. Based on these observations, Officer

Hannigan testified that, in his opinion, Appellant “was unsafe to operate a

motor vehicle.” Id. at 103.

       Sergeant Graeff arrived a few minutes after Officers Hannigan and

Coffin. When he initially approached Appellant, he detected “a slight odor of

alcoholic beverage on him….”    Id. at 123.   He then directed Appellant to

perform several sobriety tests. During the heel-to-toe test, Sergeant Graeff

observed that Appellant began to perform the test early (after being

instructed to wait until Sergeant Graeff was done giving his instructions),

rarely touch heel to toe, swayed “a little bit,” and failed to adhere to the

instruction to only take 9 paces before turning around. Id. at 125. During

the one-leg balancing test, Appellant performed well on the test itself, but

again began executing the test before he was instructed to begin.     Id. at

127.    Based on all his observations, Sergeant Graeff testified that he

believed that Appellant was “impaired to the point he couldn’t operate the

vehicle safely on the Commonwealth’s highways.”    Id. at 138-39.

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      In sum, Appellant engaged in unsafe driving when he ran a red light,

nearly collided with officers’ vehicle, engaged in high-speed flight from the

officers when they tried to pursue him, and, ultimately, crashed when trying

to exit the highway.       Evidence of his intoxication at this time was

demonstrated by his own admission of having consumed alcohol prior to

driving, the smell of alcohol emanating from his body, his glassy, bloodshot

eyes, and several indicators of intoxication observed during the administered

sobriety tests. Moreover, all three police officers testified that, due to their

education, training, and experience, they believed Appellant was intoxicated

to a degree that rendered him incapable of safe driving. That Appellant did

not fail every sobriety test in every respect was just one among many

factors the trial court had to consider in determining Appellant’s guilt.

Appellant’s exclusive focus on factors which tended to demonstrate his

sobriety goes to the weight, and not the sufficiency of the evidence. Under

the totality of the circumstances in this case, we conclude that these

collective facts were sufficient to convict Appellant of violating 75 Pa.C.S. §

3802(a)(1).

      Next Appellant claims his sentence for Flight is illegal because that

offense purportedly was improperly graded as a felony. He asserts that the

initial criminal information failed to charge Appellant with the felony grading

of Flight for which he was ultimately sentenced, and he alleges that his due

process rights were violated as a result. Although Appellant acknowledges

that the information was later amended before trial to reflect the felony

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grading, he claims that the amendment of the information was insufficient to

address his due process concerns because, in amending the information, the

Commonwealth did not allege facts sufficient “to give [Appellant] or the

court notice of how the Commonwealth intended to prove the higher

grading.” Appellant’s Brief at 23.

      The crime of Flight is defined, in pertinent part, as follows:

      (a) Offense defined.--Any driver of a motor vehicle who
      willfully fails or refuses to bring his vehicle to a stop, or who
      otherwise flees or attempts to elude a pursuing police officer,
      when given a visual and audible signal to bring the vehicle to a
      stop, commits an offense as graded in subsection (a.2).

                                       …

         (a.2) Grading.—

            (1) Except as provided in paragraph (2), an offense
            under subsection (a) constitutes a misdemeanor of
            the second degree. Any driver upon conviction shall
            pay an additional fine of $500. This fine shall be in
            addition to and not in lieu of all other fines, court
            expenses, jail sentences or penalties.

            (2) An offense under subsection (a) constitutes a
            felony of the third degree if the driver while fleeing
            or attempting to elude a police officer does any of
            the following:

              (i) commits a violation of section 3802 (relating
              to driving under influence of alcohol or
              controlled substance);

              (ii) crosses a State line; or

              (iii) endangers a law enforcement officer or
              member of the general public due to the driver
              engaging in a high-speed chase.

75 Pa.C.S. § 3733(a).

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       As Appellant correctly asserts, he was initially charged with the

default, second-degree misdemeanor grading of Flight.               Initial Criminal

Information, 11/25/15, at 1 (single page).              Later, however, the initial

criminal information was amended to reflect that the Commonwealth was

charging Appellant with the felony grading of Flight.            Amended Criminal

Information, 4/20/16, at 1 (single page).            Instead of submitting a wholly

new document, the Commonwealth appears to have merely resubmitted the

initial criminal information, crossed out the initial grading of “M2,” and

replaced it with a handwritten “F3.”           Id.   The description of the offense

provided was left unchanged, and stated as follows: “Being the driver of a

motor vehicle, willfully failed or refused to bring his or her vehicle to a stop,

or otherwise fled or attempted to elude a pursuing officer, when given a

visual and audible signal to bring the vehicle to a stop.”           Id.   Notably,

Appellant does not set forth a separate argument asserting that the evidence

was insufficient to support the felony grading of Flight.1 Rather, his illegal

sentencing claim is premised primarily on the notion that he was not

afforded notice of the factual basis for the felony grading of his Flight offense




____________________________________________


1
  Indeed, the facts adduced at trial demonstrate that such an argument
would lack merit. As discussed in the prior issue, we conclude that the
evidence was sufficient to support Appellant’s conviction for DUI – general
impairment, which would simultaneously satisfy, for sufficiency purposes, 75
Pa.C.S. § 3733(a)(a.2)(2)(i).



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in the amended criminal information.    Appellant relies on several cases to

support his argument, and we will address each in turn.

     First, in Commonwealth v. McNeill, 439 A.2d 131 (Pa. Super. 1981),

the appellant was convicted of escape, which was graded by the trial court

as a felony of the third degree. However, the criminal information filed by

the Commonwealth described, “almost verbatim[, a] recitation of the

[general] statutory definition of escape, [18 Pa.C.S. §] 5121(a), … but [wa]s

silent on the grade of the offense.” McNeill, 439 A.2d at 133.   The

McNeill Court held that the appellant’s sentence was illegal, reasoning:

            The statute defining escape, like that dealing with retail
     theft, incorporates the grading of the offense. We therefore hold
     that escape under [§] 5121(d)(1), [a] felony of the third degree,
     is “different in kind and character from” [§] 5121(d)(2), [a]
     misdemeanor of the second degree. Consequently, if an
     indictment or information fails to set forth the degree of the
     offense, a conviction for escape must be graded as a
     misdemeanor of the second degree. See Commonwealth v.
     Jones, 491 Pa.Super. 289, 420 A.2d 1046 (1980) (grading of
     defendant's escape conviction upheld because the information
     identified the charge as a felony).

            In the present case [the] appellant was convicted only on
     the first count of the indictment which makes no reference to the
     degree of the offense. Appellant, therefore, may be sentenced
     only to a maximum of two years imprisonment. 18 Pa.C.S.A. [§]
     5121(d)(2); 18 Pa.C.S.A. [§] 1104. The sentence imposed,
     imprisonment for one to five years, is beyond this statutory limit
     and therefore illegal.

McNeill, 439 A.2d at 133.

     Here, however, it is conceded that the Commonwealth amended the

criminal information to grade Appellant’s Flight offense as a felony of the



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third degree prior to trial. McNeill, therefore, does not entitle Appellant to

relief, as the grading of the offense at issue was clearly ‘referenced’ in the

charging document.

      Second, in Commonwealth v. Nixon, 476 A.2d 1313 (Pa. Super.

1984), the appellant pled guilty to burglary and escape. As was the case in

McNeill, Nixon argued that his sentence for escape was illegal because the

criminal information did not specify whether he was being charged with the

misdemeanor or felony grading of that offense.        Indeed, the facts were

similar to McNeill, in that “[t]here were no facts recited in the information

to suggest whether the offense committed by appellant was a felony or

misdemeanor.”    Nixon, 476 A.2d at 1314.       However, the Commonwealth

contended that “McNeill [wa]s not controlling [because] the plea colloquy

disclosed to [the] appellant that his offense was a felony for which a

maximum sentence of seven years could be imposed by the court.” Nixon,

476 A.2d at 1315. We rejected the Commonwealth’s argument, holding that

“[w]hen a defendant enters a plea of guilty to an information charging one

offense, he cannot be sentenced for another, more serious offense. This is

so even though the guilty plea colloquy suggests that he is to be sentenced

for the more serious offense.” Id.

      Clearly, this aspect of the Nixon decision is not relevant to the instant

matter. The purportedly defective criminal information here was amended

prior to trial to reflect the grading of the offense for which Appellant was

ultimately convicted. However, Nixon is informative with regard to its other

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holding. Defendant Nixon made the same notice argument with regard to a

separate escape charge, asserting that the grading of the offense was not

adequately specified in the criminal information. However, the Nixon Court

rejected that claim, because the information had “averred that [the]

appellant had acted ‘feloniously’ in making his escape.”               Id.    That was

enough for this Court to conclude that Nixon was not illegally sentenced for

the felony grading of escape.        Id.      Similarly, here, it is uncontested that

Appellant was notified, prior to trial, that he was being charged with the

felony grading of the Flight offense.

       Third, in Commonwealth v. Moses, 271 A.2d 339 (Pa. 1970), our

Supreme Court held that the appellant, who had been convicted of selling

liquor after the required closing hour, could not be sentenced under the

provision of that law providing for increased sentences for recidivist

offenders, because the “lower court lacked the power to impose this

enlarged sentence when the indictment did not contain averments of prior

convictions.”    Id. at 340.      We conclude that Moses also does not entitle

Appellant to relief. The decision provides virtually no analysis of the claim,

much    less    analysis   that   differs     substantially   from   what    this   Court

subsequently held in McNeill and Nixon.

       Nevertheless, Appellant asserts that, despite the fact that the criminal

information was amended to put him on notice that he was facing the felony

grading of the Flight offense, “no facts (relating the crossing of state lines,

speed that endangers others, or driving under the influence) supporting that

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increase were alleged.” Appellant’s Brief at 23. Appellant essentially asserts

that he was not made aware of which of the three possible provisions of 75

Pa.C.S. § 3733(a)(a.2)(2) applied to his prosecution.

      We disagree. As the trial court notes, Appellant was also charged with

a DUI offense, pursuant to 75 Pa.C.S. § 3802(a)(1), in the same criminal

information in which he was charged with Flight. TCO at 8. Flight may be

graded as felony “if the driver while fleeing or attempting to elude a police

officer does any of the following: (i) commits a violation of section 3802

(relating to driving under influence of alcohol or controlled substance)[.]” 75

Pa.C.S. § 3733(a)(a.2)(2)(i). The factual basis for the felony grading was,

therefore, set forth in the criminal information. Appellant cannot reasonably

claim that he was not put on notice of the felony grading of the Flight

offense when the predicate for the felony grading, a simultaneous DUI

offense, was charged as a separate offense in the same criminal information.

      Finally, Appellant claims his sentence for the felony grading of Flight

violates the principles of Alleyne v. United States, 133 S.Ct. 2151 (2013).

In Alleyne, “the United States Supreme Court held that, under the Sixth

Amendment to the United States Constitution, a jury must find beyond a

reasonable doubt any facts that increase a mandatory minimum sentence.”

Commonwealth v. Hopkins, 117 A.3d 247, 249 (Pa. 2015).             Appellant’s

Alleyne claim is meritless.     First, there were no mandatory minimum

sentences at issue in this case.        Second, Appellant’s Alleyne-based

argument completely disregards the fact that the predicate for the felony

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grading of his Flight offense, his simultaneous DUI offense, was both

charged in the criminal information and, as addressed in the first issue,

above, proven to the factfinder beyond a reasonable doubt at trial.

Accordingly, we conclude that the second question presented for our review

also lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




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