J-A17023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

GARY MICHAEL KAUFFMANN

                          Appellant                    No. 2839 EDA 2013


            Appeal from the Judgment of Sentence April 18, 2013
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001635-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                         FILED DECEMBER 22, 2014

      Appellant, Gary Michael Kauffmann, appeals from judgment of

sentence entered on April 18, 2013, by the Court of Common Pleas of

Monroe County. We reverse the conviction for violating 75 Pa.C.S.A. §

3111(a), affirm the other convictions, but vacate the judgment of sentence

and remand for re-sentencing as we have upset the sentencing scheme.

      For purposes of this appeal, the factual basis of Kauffmann’s judgment

of sentence is largely uncontested. On June 12, 2012, Officer Christopher

Gupko pulled over a vehicle operated by Kauffmann pursuant to his belief

that Kauffmann was speeding.          After Kauffmann pulled over, Officer Earl

Ackerman pulled in front of the vehicle to facilitate the traffic stop.

      Officer Ackerman testified that he observed that Kauffmann had glassy

eyes, a strong odor of alcohol, slurred speech, and was verbally combative.
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Officer Gupko subsequently placed Kauffmann under arrest for driving while

under the influence of alcohol (DUI) and took Kauffmann to the hospital for a

blood test. Even though Kauffmann agreed to have his blood taken, he

remained combative, and refused to sit for the test.

          Officer Gupko then transported Kauffmann back to the police station.

The police station did not have holding cells.                Thus, Kauffmann was

handcuffed to a chain, which was attached to an eyehook in the wall. While

chained to the wall in the police station, Kauffmann became violent and

began spitting. While Kauffmann was being placed in the back seat of the

patrol vehicle for transport to the local jail, he spat on Officers Ackerman

and Gupko.

          A jury subsequently found Kauffmann guilty of two counts of

Aggravated       Harassment       by   a   Prisoner,1   one   count   of   DUI-General

Impairment,2 one count of Obedience to Traffic Control Signals,3 and one

count of criminal mischief.4 The trial court sentenced Kauffmann to an

aggregate term of incarceration of twelve to twenty-four months. Kauffmann

subsequently filed post-sentence motions, which the trial court denied. This

timely appeal followed.


____________________________________________


1
    18   Pa.C.S.A.   §   2703.1
2
    75   Pa.C.S.A.   §   3802(a)(1)
3
    75   Pa.C.S.A.   §   3111(a)
4
    18   Pa.C.S.A.   §   3304(a)(4)



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       In his first issue, Kauffmann argues that he is entitled to a new trial

pursuant to the Commonwealth’s failure to disclose the dash-cam video

during pre-trial discovery. However, we are unable to reach the merits of

Kauffmann’s Brady5 claim as he has failed to include the dash-cam video

evidence    in the     certified record. “Our    law   is unequivocal   that   the

responsibility rests upon the appellant to ensure that the record certified on

appeal is complete in the sense that it contains all of the material necessary

for the reviewing court to perform its duty.” Commonwealth v. Preston,

904 A.2d 1, 7 (Pa. Super. 2006) (citing Commonwealth v. Kleinicke, 895

A.2d 562, 575 (Pa. Super. 2006) (en banc)). Furthermore, the law of

Pennsylvania is well settled that issues not found within the certified record

cannot be considered on appeal. See Commonwealth v. Bracalielly, 658

A.2d 755, 763 (Pa. 1995).

       Kauffmann has failed to provide a copy of the dash-video in the

certified record. We are thus unable to review the merits of his Brady claim

as it requires us to determine if the trial court was correct in determining

that the video was not exculpatory. Therefore, we find that Kauffmann has

waived the issue for his failure to complete the certified record with all of the

required materials for our review.



____________________________________________


5
    Brady v. Maryland, 373 U.S. 83 (1963)



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      Next, Kauffmann argues that the evidence supporting his conviction

for failure to obey a traffic control device was legally insufficient. We review

challenges to the sufficiency of the evidence pursuant to the following

standards. A claim challenging the sufficiency is a question of law. See

Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004). The

evidence adduced at trial must be viewed in the light most favorable to the

verdict winner to determine whether there is sufficient evidence to enable

the fact-finder to find every element of the crime beyond a reasonable

doubt. See Commonwealth v. Walker, 874 A.2d 667, 677 (Pa. Super.

2005). Any doubts regarding a defendant’s guilt may be resolved by the

fact-finder unless the evidence is so weak and inconclusive that as a matter

of   law   no   probability   of   fact   may   be   drawn   from   the   combined

circumstances. See id. The Commonwealth is entitled to all reasonable

inferences arising from the evidence and all facts which the Commonwealth’s

evidence tends to prove are treated as admitted. See Commonwealth v.

Hunter, 768 a.2d 1136, 1142 (Pa. Super. 2001).

      Only where the evidence offered to support the verdict is in

contradiction to the physical facts, in contravention to human experience,

and in contravention to the laws of nature, is the evidence deemed

insufficient as a matter of law. See id. We must determine whether,

“accepting as true all the evidence and all reasonable inferences therefrom,

upon which, if believed, the jury could properly have based its verdict, it is


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sufficient in law to prove beyond a reasonable doubt that the defendant is

guilty    of   the   crime   or   crimes   of    which   he   has   been   convicted.”

Commonwealth v. Williams, 316 A.2d 888, 892 (Pa. 1974).

         Here, Kauffmann was found guilty of violating 75 Pa.C.S.A. § 3111(a)

because he had allegedly exceeded the speed limit. 75 Pa.C.S.A. § 3111(a)

states, in relevant part:

         Unless otherwise directed by a uniformed police officer or any
         appropriately attired person authorized to direct, control or
         regulate traffic, the driver of any vehicle shall obey the
         instruction of any applicable official traffic-control device placed
         or held in accordance with the provisions of this title.

Official traffic-control devices are defined as signs, signals, markings and

devices placed under the appropriate authority of a jurisdiction, for the

purpose of regulating, warning or guiding traffic. See 75 Pa.C.S.A. § 102.

         This Court has previously stated that if the Commonwealth wishes to

prove that a defendant violated § 3111(a) by exceeding the maximum speed

limit, then it must present evidence calculated by one of the prescribed ways

listed in 75 Pa.C.S.A. § 3368. See Commonwealth v. Masters, 737 A.2d

1229, 1232 (Pa. Super. 1999); Commonwealth v. Martorano, 563 A.2d

1229, 1233 (Pa. Super. 1989) (en banc). A panel of this Court in Masters

stated:

         To the extent that a defendant can be prosecuted for exceeding
         a maximum speed limit under section 3111 of the Motor Vehicle
         Code, that section and section 3362 relate to the same subject
         matter. To establish a violation of section 3362, evidence of the
         use of a speed timing device as specified in section 3368 must
         be presented. Therefore, to construe sections 3362 and 3111

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       consistently, we must find evidence of the use of a speed timing
       device should also be required to established a violation of
       section 3111.

737 A.2d at 1232 (citations omitted).6

       Instantly, when reviewing the record in a light most favorable to the

Commonwealth as the verdict winner, we find that there is insufficient

evidence to establish that Kauffmann violated Section 3111(a). The only

evidence presented to establish Kauffmann’s violation of Section 3111(a) is

the estimated speed based upon the visual calculations of Officer Gupko.

See N.T., Trial, 1/4/13 at 85. Officer Gupko testified that he estimated

Kauffmann was traveling 65 m.p.h. in a 45 m.p.h. zone. See id. The record

is devoid of any evidence calculated with the prescribed means listed within

75 Pa.C.S.A. § 3368. As such, we find that there is insufficient evidence to

uphold Kauffmann’s conviction under Section 3111(a). Accordingly, the

judgment of sentence on this conviction is reversed.

       In his third issue on appeal, Kauffmann challenges the sufficiency of

the evidence supporting his conviction for aggravated harassment by a

prisoner. Specifically, Kauffmann asserts that the evidence was insufficient

to establish that he was in a “local detention facility” when the alleged

assault occurred. Reviewing the record in a light most favorable to the

Commonwealth as the verdict winner we find that there is sufficient evidence
____________________________________________


6
 The Commonwealth’s brief does not address Kauffmann’s reliance on
Masters or Martorano or the applicability of section 3368.



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to uphold Kuaffmann’s conviction under Section 2703.1. In relevant part,

aggravated harassment by a prisoner is defined as follows:

      A person who is confined in or committed to any local or county
      detention facility, jail or prison or any State penal or correctional
      institution or other State penal or correctional facility located in
      this Commonwealth commits a felony of the third degree if he,
      while so confined or committed to or while undergoing
      transportation to or from such an institution or facility in or to
      which he was confined or committed, intentionally or knowingly
      causes or attempts to cause another to come into contact with
      blood, seminal fluid, saliva, urine or feces, by throwing, tossing,
      spitting or expelling such fluid or material.

18 Pa.C.S.A. § 2703.1.

      There are two scenarios under which a person can be found to have

violated Section 2703.1.    First, a person who has first been committed or

confined to an appropriate institution or facility may intentionally expose

another to bodily fluids while in the process of transport to or from that

location.   See Commonwealth v. Leonburger, 932 A.2d 218, 222 (Pa.

Super. 2007). Under this scenario, a person does not violate Section 2703.1

if he exposes another to bodily fluids while being transported to a designated

facility for the first time. See id. In the alternative, a person may violate

this section if he exposes another to bodily fluids while he is committed or

confined to an appropriate institution or facility. See id.

      In the present matter, the Commonwealth’s case was premised upon

Kauffmann spitting on the officers as he was being transported to the county

correctional facility. Therefore, Kauffman’s conviction for aggravated assault




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by a prisoner can only stand if the police station qualifies as a local detention

facility.

       In Commonwealth v. Clark, 761 A.2d 190 (Pa. Super. 2000), a

panel of this Court held that a holding cell at a police station qualifies as a

local detention facility.   See id., 761 A.2d at 192.       Specifically, the panel

stated “[w]e now hold that the Carlise Police Station is a local or county

detention facility.” Id. It is clear from the holding of both Clark and

Leonburger that it is not the manner in which an individual is confined that

establishes what is a local detention facility, but rather, it is the nature and

character of the facility itself. See id.; see also Leonburger, 932 A.2d at

223.

       Therefore, a police station that has any means for restricting the

freedom of movement of arrestees qualifies as a local detention facility. The

record indicates that Kauffmann was confined to the bolt in the wall like all

other arrestees who are confined in the police station. See N.T. 1/4/13 at

43. Unlike other police stations, this one does not have holding cells and this

constituted the normal procedure and location for confining criminals. See

id., at 41. Just as the police station lock-up in Clark was a local detention

facility, here, the police station’s lock-up is also a local detention facility.

       As such, the statute applies to the instant circumstances and there

was sufficient evidence to uphold Kauffmann’s conviction. Kauffmann was

first confined to a local detention facility. While preparing to be transported


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to the county detention facility from the local detention facility from which

he was confined he then spat on the officers. Therefore, we find that there

was sufficient evidence to uphold his conviction of aggravated assault by a

prisoner.

      Kauffmann next argues that the trial court usurped the fact-finding

authority of the jury. Specifically, Kauffmann contends that the trial court

committed an error of law by failing to instruct the jury to deliberate on the

issue of whether the police station constituted a local detention facility. The

United   States   Supreme   Court   has   consistently   held   that   the   Sixth

Amendment requires “a jury determination that the defendant is guilty of

every element of the crime with which he is charged, beyond a reasonable

doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995). In reviewing a

trial court’s jury charge, we will determine if it adequately and accurately

reflected the law and was sufficient to guide the jury in its deliberation. See

Commonwealth v. Early, 546 A.2d 1236, 1240 (Pa. Super. 1985).

Specifically, we look to see if the trial court abused its discretion in

committing an error of law or clearly erroneous fact. See Commonwealth

v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006).

      Here, the trial court instructed the jury that they needed to find that

three elements existed in order to convict Kauffmann of the crime of

aggravated harassment by a prisoner. See N.T., Trial, 1/4/13, at 223. First,

that Kauffmann was a prisoner at the time of the alleged exposure to bodily


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fluids. See id. Second, that Kauffmann caused Officers Ackerman and Gupko

to have contact with bodily fluids. See id. Third, that Kauffmann knowingly

or intentionally caused his bodily fluids to come into contact with the

officers. See id.

       Instantly, we find that the trial court did not abuse its discretion while

charging the jury. First, as noted above, we conclude that as a matter of

law, the police station constituted a local detention facility under the statute.

Furthermore, the jury charge indicated that the jury had to find that

Kauffman was a prisoner in order to find him guilty. As such, we find that

the trial court did not err in instructing the jury. Accordingly, we conclude

that Kauffman’s fourth issue on appeal merits no relief.

       In his fifth issue on appeal, Kauffman contends that the trial court

imposed an illegal sentence. In particular, Kauffmann argues that pursuant

to this Court’s decision in Commonwealth v. Musau, 69 A.3d 754 (Pa.

Super. 2013),7 a defendant convicted of a second DUI based upon a refusal

of a chemical blood alcohol content test could not be sentenced to a term of

____________________________________________


7
  On October 29, 2014, the Governor signed Act 189 of 2014 into law (S.B.
1239, Session of 2014, Printer’s No. 2396). This is an Act amending various
provisions of the Motor Vehicle Code, 75 Pa.C.S.A., and in particular Section
3803(a), the section at issue in Musau. Act 189 amends Section 3803(a)
by changing “Notwithstanding the provisions of” to “Except as provided in.”
Section 4(1)(ii) of Act 189, states that the amendment to § 3803(a) shall
take effect immediately, meaning on October 29, 2014. Since Kauffman’s
sentence was entered prior to October 29, 2014, we apply the prior version
of the statute.



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imprisonment of greater than six months.          The Commonwealth does not

address this issue in its brief. The trial court has not addressed this issue,

as Kauffmann is raising it for the first time on appeal.

      In Musau, the defendant was convicted of DUI. As he had a prior

conviction for DUI conviction and because he refused chemical testing, the

trial court in Musau graded his offense as a first-degree misdemeanor

pursuant to 75 Pa.C.S.A. § 3803(b)(4). As a result, the defendant was

sentenced     according   to   the   sentencing   guidelines   for   a   first-degree

misdemeanor to a period of 90 days to five years’ incarceration. See id., at

756. This Court found that such a sentence was illegal because it exceeded

the statutory maximum of six months incarceration. See id.

      Like in Musau, the trial court sentenced Kauffmann pursuant to the

guidelines for first-degree misdemeanors and imposed a sentence of 12 to

24 months’ incarceration. As such, the sentence imposed by the trial court is

illegal as it exceeds the six-month statutory maximum. Therefore, we must

vacate the judgment of sentence and remand to the trial court for re-

sentencing.

      In his sixth and final issue on appeal, Kauffman asserts that his DUI

conviction was against the weight of the evidence presented at trial.             In

addressing Kauffmann’s weight of evidence challenge, we first begin by

noting our standard of review.

      The finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of

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      the evidence presented and determines the credibility of the
      witnesses.

      As an appellate court we cannot substitute our judgment for that
      of the finder of fact. Therefore, we will reverse a jury’s verdict
      and grant a new trial only where the verdict is so contrary to the
      evidence as to shock one’s sense of justice. A verdict is said to
      be contrary to the evidence such that it shocks one’s sense of
      justice when “the figure of Justice totters on her pedestal,” or
      when “the jury’s verdict, at the time of its rendition, causes the
      trial judge to lose his breach, temporarily and causes him to
      almost fall from the bench, then it is truly shocking to the
      judicial conscience.”

      Furthermore, 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.

2007)) (citations omitted). It is up to the jury to weigh the evidence,

determine its credibility, and believe all, part, or none of it. See

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003).

      Instantly we find that the trial court did not abuse its discretion, as the

weight of the evidence did not shock the trial judge’s conscience. In addition

to the fact that Kauffmann did not specifically consent to the blood test,

there is other evidence to support the trial court’s finding that the verdict

was not against the weight of the evidence. Appellant contends that the only

evidence to suggest that he refused the blood test was that he continued to

request to read the DL-26 form. See Appellant’s Brief, at 57. However, the


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evidence presented by the Commonwealth revealed that Kauffmann made

such requests in the room where the forms are no longer read or given to

defendants. See N.T., Trial, 1/4/13 at 185-86. Furthermore, when Kauffman

was asked to sit in order to give blood, Kauffmann continued to stand and

refused to cooperate. See id., at 105. The officers present explained to

Kauffmann that he either sit down and give blood or refuse the test by

continuing to stand. See id., at 110.

      Additionally, the jury heard evidence that the DL-26 form was read

verbatim to Kauffmann. See id., at 105. There was no evidence presented

that Kauffmann did not understand the form that was read to him. In light of

the fact that Kauffmann continuously refused to sit for the test and insist to

read the form at a time when it was not appropriate to read the form, we

find that the jury’s verdict is not against the weight of the evidence.

Accordingly, the trial court did not abuse its discretion and Kauffmann’s final

issue on appeal merits no relief.

      As our resolution of Kauffman’s appeal has upset the trial court’s

sentencing scheme, we vacate the judgment of sentence in its entirety and

remand for re-sentencing in accordance with this memorandum.              See

Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. Super. 2008) (“Where

we determine that a sentence must be corrected, this Court has the option

of amending the sentence directly or remanding it to the trial court for re-




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sentencing. If a correction by this Court may upset the sentencing scheme

envisioned by the trial court, the better practice is to remand.”).

      Conviction for violating 75 Pa.C.S.A. § 3111(a) reversed; all other

convictions affirmed. Judgment of sentence vacated and case remanded for

re-sentencing. Jurisdiction relinquished.

      Judge Stabile joins in the memorandum.

      President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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