J-S67042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JOSE GARCIA                                :
                                               :
                      Appellant                :       No. 3449 EDA 2016

            Appeal from the Judgment of Sentence October 10, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000696-2016


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED NOVEMBER 13, 2017

        Appellant, Jose Garcia, appeals from the judgment of sentence entered

in the Lehigh County Court of Common Pleas, following his bench trial

convictions for two counts of driving under the influence of alcohol or

controlled substance (“DUI”), and one count each of careless driving,

immediate notice of accident to police department, and driving while

operating privilege is suspended or revoked.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. We clarify that Appellant was charged and convicted of two

counts of DUI under Section 3802(a)(1).
____________________________________________


1   75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), 3746(a)(2), 1543(a), respectively.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67042-17


          Appellant raises three issues for our review:

             WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
             IN DENYING [APPELLANT’S] REQUEST FOR A JURY TRIAL?

             WHETHER THE COMMONWEALTH PRESENTED SUFFICIENT
             EVIDENCE THAT [APPELLANT] DROVE, OPERATED, OR
             WAS IN ACTUAL PHYSICAL CONTROL OF THE VEHICLE AT
             TRIAL TO SUSTAIN THE DRIVING UNDER THE INFLUENCE
             CHARGES?

             WHETHER THE VERDICT OF GUILTY WAS AGAINST THE
             WEIGHT OF THE EVIDENCE AS NO DIRECT EVIDENCE WAS
             PRESENTED AT TRIAL THAT [APPELLANT] DROVE,
             OPERATED, OR WAS IN ACTUAL PHYSICAL CONTROL OF
             THE VEHICLE, AND [APPELLANT’S] WITNESS TESTIFIED
             THAT SHE WAS THE DRIVER OF THE VEHICLE?

(Appellant’s Brief at 5).2

          After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Maria L.

Dantos, we conclude Appellant’s first and second issues on appeal merit no

relief.     The trial court opinion comprehensively discusses and properly

disposes of those questions. (See Trial Court Opinion, filed November 29,

2016,      at   11-12;   2-6)   (finding:      (1)   first   DUI   offense   is   ungraded

misdemeanor punishable by up to six months’ imprisonment; when first

offender refuses chemical testing, violation remains ungraded misdemeanor

____________________________________________


2 The summary of the argument section in Appellant’s brief does not pertain
to any of the issues Appellant raises on appeal. Rather, this section
inexplicably states the trial court erred by failing to grant Appellant’s motion
to suppress evidence. The record suggests this misstatement was merely an
inadvertent error by counsel.



                                            -2-
J-S67042-17


punishable by up to six months’ imprisonment;3 right to jury trial exists only

when defendant faces charge which, alone, could lead to imprisonment

greater than six months; thus, Appellant’s argument is legally flawed; (2)

Commonwealth         presented     evidence      that   on   August   22,   2015,   at

approximately 4:30 a.m., police received dispatch to accident in McDonald’s

parking lot; Officer Beiner observed male, later identified as Appellant,

standing outside of driver’s side door of pick-up truck which had damage to

front and side fenders; Officer Beiner noticed another vehicle approximately

20 feet away had damage to it as well as nearby telephone pole; Appellant’s

vehicle had yellow paint on it which appeared to be from utility pole;

Appellant denied knowledge of accident; Appellant said his wife had been
____________________________________________


3 Appellant was charged with, inter alia, two counts of first-offense DUI
under Section 3802(a)(1): count 1−DUI (general impairment) and count
2−DUI (general impairment with refusal). Appellant was not facing any
charges subject to more than six months’ imprisonment.           The court’s
statement, therefore, is limited to the context of Appellant’s demand for a
jury trial.   We acknowledge the recent cases of Birchfield v. North
Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) and
Commonwealth v. Giron, 155 A.3d 635 (Pa.Super. 2017) (holding that,
pursuant to Birchfield, defendant who refuses to submit to warrantless
blood draw cannot be subject to enhanced penalties under 75 Pa.C.S.A.
§§ 3803-3804; affirming appellant’s DUI conviction but vacating and
remanding for resentencing). Significantly, the record in the present case
makes clear the court imposed no penalty at all on Appellant’s conviction for
count 2−DUI (general impairment with refusal). In fact, the court sentenced
Appellant on only count 1−DUI (general impairment), plus fines/costs for the
summary offenses. Therefore, this case did not involve an illegal sentence
under Birchfield or Giron. Further, Appellant did not raise any Birchfield
challenge to the validity of his conviction for count 2−DUI (general
impairment with refusal). So, absent an illegal sentence on that conviction,
Appellant is not entitled to relief on the grounds asserted.



                                           -3-
J-S67042-17


driving and was in McDonald’s using restroom; Officer Beiner went inside but

no patrons were there as restaurant was closed except for employees;

Officer Beiner noticed strong odor of alcohol on Appellant’s breath, and that

Appellant had glassy and bloodshot eyes and was swaying; Appellant also

kept repeating himself; Appellant refused to perform sobriety tests or

consent to blood draw; court found completely incredible Appellant’s wife’s

testimony that she was driver of vehicle, struck utility pole, went to use

McDonald’s restroom but because restaurant was closed she walked to

Walgreen’s to use restroom there, and it took her one hour to find bathroom

and return to accident scene; Appellant’s license was under suspension on

date in question; evidence was sufficient to sustain Appellant’s convictions).

Therefore, with respect to Appellant’s first and second issues on appeal, we

affirm on the basis of the trial court’s opinion.

      Regarding Appellant’s third issue, preliminarily, a challenge to the

weight of the evidence must be preserved by a motion for a new trial.

Pa.R.Crim.P. 607. The Rule provides:

         Rule 607. Challenges to the Weight of the Evidence

         (A)   A claim that the verdict was against the weight of
         the evidence shall be raised with the trial judge in a
         motion for a new trial:

            (1) orally,     on   the   record,   at   any   time   before
            sentencing;

            (2)    by written motion at any time before sentencing;
            or


                                       -4-
J-S67042-17


                (3)   in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).         “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004). An appellant’s failure to avail

himself of any of the prescribed methods for presenting a weight of the

evidence issue to the trial court constitutes waiver of that claim, even if the

trial   court    responds     to   the    claim   in   its   Rule   1925(a)   opinion.

Commonwealth v. Burkett, 830 A.2d 1034 (Pa.Super. 2003). See also

Pa.R.Crim.P. 720(A)(1) (explaining written post-sentence motion shall be

filed no later than 10 days after imposition of sentence).

        Instantly, the court sentenced Appellant on October 10, 2016.

Appellant did not raise a challenge to the weight of the evidence prior to

sentencing or file a post-sentence motion within ten days of the imposition

of his sentence. The trial court’s discussion of Appellant’s weight claim in its

Rule 1925(a) opinion does not cure this defect. 4              See Burkett, supra.

Thus, Appellant’s weight claim is waived.              See Pa.R.Crim.P. 607; 720;

Gillard, supra; Burkett, supra. Moreover, even if Appellant had preserved

____________________________________________


4The full citation for Commonwealth v. Lyons (see Trial Court Opinion at
7), is 833 A.2d 245 (Pa.Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d
782 (2005).



                                           -5-
J-S67042-17


his weight claim, we would affirm for the reasons stated in the trial court’s

opinion. (See Trial Court Opinion at 2-7.) Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




                                    -6-
                                                                                        Circulated 10/24/2017 10:08 AM




     IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

                                      CRIMINAL DMSION




COMMONWEALTH OF PENNSYLVANIA

       vs.                                                             Case No. 0696/2016

JOSE GARCIA,
     Defendant




APPEARAN CP~S:

                       ADRA RENEE SMITH, ESQUIRE,
                       SENIOR DEPUTY DISTRICT ATTORNEY,
                            On behalf of the Commonwealth

                       KATHRYN SMITH J ESQUIRE )
                            On behalf of the Defendant

                                          ·k   * * * ~- ·}: ·):   •k




                                     MEMORANDUM OPINION


MARIA L. DANTOS, J.

                A non-jury trial was conducted in the within matter on August 15, 2016.

At the conclusion of the trial, this Court found the Defendant, Jose Garcia, guilty of

Driving Under the Influence of Alcohol (general impairment, first offense, highest tier),               1



Careless     Driving.s Immediate Notice of Accident to Police Department,"                  and Driving



       75 Pa. C.S.A. § 3802(a)(l).
).
       75 Pa. C.S.A. § 3714(a).
3      75 Pa. C.S.A. § 3746(a)(2).
   While Operating Privilege is Suspended."              Thereafter;   on October   10, 2016,   the

   Defendant was sentenced to a term of imprisonment of not less than one (1) month nor

   more than six (6) months in Lehigh County Jail, as well as costs and fines, to be run

   consecutively to the sentence imposed in Case No. 215/2016.            The within timely appeal

   followed on November 3, 2016.       Thereafter, this Court instructed the Defendant to file

   of record and serve upon this Court a concise statement             of errors complained of on

   appeal no later than November 28, 2016, in accordance               with Pennsylvania Rule of

   Appellate Procedure     1925(b).   The Defendant timely complied with said Order. In his

   concise statement     of matters complained of on appeal, the Defendant          challenges the

   weight of the evidence and the sufficiency of the evidence.         The Defendant also argues

   that this Court erred in not granting the Defendant a jury trial, as well as requests

   this Court to reconsider its sentence.



A. Challe1.1gi11:g the Sufficiency of the Evidence

                   The Defendant alleges that the evidence presented by the Commonwealth

   at trial was insufficient to sustain finding the Defendant          guilty of Driving Under the

   Influence of Alcohol (general impairment, first offense, highest tier), Careless Driving,

   Immediate Notice of Accident to Police Department, and Driving Under Suspension.              It

   is well-settled law in Pennsylvania that when reviewing the sufficiency of the evidence

   claim, the appellate court must review all of the evidence and all reasonable inferences

   drawn therefrom in a light most favorable to the Commonwealth as the verdict winner.

   Commonwealth v. TayJ.or, 831 A.2cl 66 i, 663 (Pa. Super. 2003), quoting ~ommonwealth

   v. DiStefano,   782 A.2d 574, 582 (Pa. Super. 200l)(stating that the standard applied in


           75 Pa. C.S.A. § 1543(a}.


                                                     2
reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at

trial in the light most favorable to the verdict winner, there is sufficient evidence to

enable the fact-finder     to find every element of the crime beyond a reasonable doubt);

Commonwealth v. Klein, 795 A.2d 424, 426 (Pa. Super. 2002); Commonwealth v. Hall,

549 Pa. 269, 280, 701 A.2d 190,           195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct.

1534, 140 L.Ed.2d 684 (1998).         Moreover, the facts and circumstances established by

the Commonwealth need not preclude every possibility of innocence.           Commonwealth v.

Hunzer, 868 A.2d 4-98, 505 (Pa. Super. 2005). With that standard in mind, we must

determine whether the evidence was sufficient to prove all of the elements of the crimes,

which the Defendant         challenges,   beyond   a reasonable    doubt.   Commonwealth     v.

McCalman, 795 A.2cl 412, 415 (Pa. Super. 2002) (citing Commonwealth v. Passarelli,

789 A.2d 708, 716 (Pa. Super. 2001) (citations and quotations omitted)). Furthermore,

a mere conflict in the testimony does not render the evidence insufficient, because it is

within the province of the fact finder to determine           the weight to be given to the

testimony and to believe all, part or none of the evidence.       Commonwealth v. Moore, 436

Pa. Super. 495, 501, 648 A.2d 331,         333 (1993).   If the finder of fact reasonably could

have determined from the evidence adduced that all of the necessary elements were

established, then the evidence will be deemed sufficient to support the verdict.       Hunzer,

868 A.2cl at 505.

               Initially   this Court notes that in order to establish a prima [acie case for

Driving Under the Influence, the Commonwealth             must have demonstrated      that the

individual was driving, operating, or in actual physical control of the movement of the

vehicle while under the influence of alcohol to a degree which rendered him incapable

of safe driving.   See 75 Pa. C.S.A. § 3802(a)(l).
               Also, "any person who drives a vehicle in careless disregard for the safety

of persons or property is guilty" of Careless Driving. See 75 Pa. C.S.A. § 3714(a).                In

addition, "[tjhe driver of a vehicle involved in an accident shall immediately by the

quickest: means        of communication      give notice     to the       nearest office of a duly

authorized police department         if the accident involves damage to any vehicle involved

to the extent that it cannot be driven under its own power in its customary manner

without   further      damage   or hazard to the vehicle,         other traffic elements,     or the

roadway, and therefore requires towing." See 75 Pa. C.S.A. § 3746(a)(2} (Immediate

Notice of Accident to Police Department).            Finally, "any person who drives a motor

vehicle on any highway or traffic way of this Commonwealth after the commencement

of a suspension, revocation or cancellation of the operating privilege and before the

operating privilege has been restored" is guilty of Driving Under Suspension.                 See 7 5

Pa. C.S.A. § 154-3(a).

               After a review of the record, this Court finds that the evidence presented at

the non-jury trial was sufficient to support the finder of fact's verdict with regard to all

of the    aforementioned        charges.    Viewed     in   the   light    most   favorable   to the

Commonwealth,       as verdict winner, a summary of the specific evidence established at

trial is as follows:

               In the instant case, the evidence presented                at trial revealed that on

August 22, 2015, at approximately 4:30 A.M., Officer Joseph Beiner of the Allentown

Police Department was patrolling in full uniform and in a marked patrol unit when he

received a dispatch to respond to the scene of an accident at the McDonald's parking

lot located at 1414 Tilghman Street, Allentown, Lehigh County, Pennsylvania.                   Upon

his arrival, he observed         a male,   later identified as the Defendant,         .Jose Garcia,



                                                 4
standing outside of the driver's side door of a black Ford Fl 50 pick-up truck.             Officer

Seiner observed that the Ford Fl 50 pick-up truck had sustained                damage to the front

fender and to the driver side fender.           In addition, Officer Seiner noticed that another

vehicle located in the McDonald's parking lot, which was approximately twenty (20')

feet from the Ford Fl 50 pick-up truck, had damage to the rear of the car.                      This

damage was new, as there was glass underneath the back encl of the vehicle.                Also, a

telephone pole at the southeast end of the McDonald's             parking lot was also damaged.

In particular,    Officer Beiner viewed "scuff marks" on the telephone pole.                Officer

Beiner observed that the Ford F 150 pick-up truck had yellow transfer paint from the

utility pole on the side, which was consistent with hitting the telephone pole.

                 Officer   Seiner     approached     the Defendant      and inquired    about    the

accident. The Defendant          denied having any knowledge of a vehicular accident.            He

indicated that his wife had been driving the Ford F'lSO              pick-up truck, and that she

was in the McDonald's          restaurant using the restroom facilities.       Officer Seiner went

into the McDonald's to locate the Defendant's wife.             However, no patrons were inside

the McDonald's,      as the restaurant was closed and only had employees inaide.>

                 When      Officer   Beirier   initially had   spoken   with   the Defendant,     he

immediately noted a strong odor of alcohol emanating from bis person and his breath.


5        The Defendant's wife, Tamisha Taylor, testified at the time of trial. Her testimony was
completely incredible and unbelievable. Ms. Taylor indicated that at approximately 4:00 A.M.,
she and her husband decided to leave their seven (7) children, whose ages range from one year
old to seventeen (17) years old, home alone to go get something to eat at McDonald's. She
indicated that she was the driver of the Ford F'l50 pick-truck and that she had struck the pole
in the McDonald's parking lot. Ms. Taylor then explained that she became so upset that she
had to use the restroom. As the McDonald's was closed, she walked to Walgreens located at
 1 71h and Tilghman Streets to use their bathroom facilities. Ms. Taylor stated that it took her
about one ( 1) hour to find a bathroom and return to the scene of the accident. Ms. Taylor's
testimony was completely incredible and this Court disregarded         it: in its entirety as one
complete lie.
       The Defendant had glassy and bloodshot               eyes, and was swaying.                                     In addition, the

      Defendant      kept repeating himself to the Officer.                         Officer Beiner inquired if the

      Defendant would consent to performing field sobriety tests.                                       At first the Defendant

      agreed.     However, the Defendant      changed his mind and refused to allow the tests to

      be administered.      Consequently,    believing that the Defendant was under the influence

      of alcohol and incapable of safe driving, Officer Beiner                                   placed the Defendant in

      custody, and transported the Defendant            to the DUI Central Booking Center for a

      blood draw, where he refused            to submit to chemical testing.                                         Furthermore,     the

      certified   Pennsylvania     Department     of Transportation                         Bureau of Driver Licensing

      records indicates that the Defendant's driver's license was suspended                                                on August 22,

      2015. (C. Ex. 1).
·--------------------------···-····-···-                         ....   ·-··········-······--·   ----------------

                      In light of this abundant evidence enumerated above, the Defendant's

      challenge to the sufficiency of the evidence must fail.



          B. Challenging the Weight of the Evidence


                      The Def end ant alleges that the verdict was against the weight of the

      evidence.    This Court notes that a motion for a new trial on grounds that the verdict is

      contrary to the weight of the evidence concedes                   that there is sufficient evidence to

      sustain     the verdict,   but contends     that it is against the weight of the evidence.

      Commonwealth         v.    Widmer,    560   Pa.   308,    319,                744          A.2d               745,    751   (2000);

      Commonwealth        v. Bennett, 827 A.2d 469, 481          (Pa. Super. 2003).                                    Furthermore,     a

      challenge that the verdict is against the weight of the evidence requires this Court to

      conclude in its discretion that "the verdict is so contrary to the evidence as to shock




                                                        6
one's sense of justice.''       Lyons, 833 A.2d at 258.          Indeed, for a new trial to lie on a

challenge that the verdict is against the weight of the evidence, the evidence must be

so tenuous, vague and uncertain that the verdict shocks the conscience of the court."

Commonwealth           v.   Shaffer,   722   A.2cl   195,     200     (Pa.   Super.   1998).   See   also

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

                   From the evidence recounted           above, it is reasonable to have concluded

that   the Defendant        was driving,     operating,     or in actual physical       control of the

movement of his Ford F150 pick-up truck while under the influence of alcohol to a

degree which rendered him incapable of safe driving. Also, the evidence showed that

the Defendant drove his Ford F150 pick-up truck in careless disregard for the safety

of persons or property when he struck the utility pole and the other vehicle parked in

the McDonald's parking lot.            In addition, the Defendant failed to give notice to the

nearest    office of a duly authorized        police department         after he was involved in the

accident    that    involved damage       to another       vehicle.     Finally,   the record evidence

established   that the Defendant drove the Ford F150 pick-up truck at a time when his

license was suspended,           in violation of the Motor Vehicle Code.               In light of this

abundant evidence enumerated above, the Defendant's challenge to the weight of the

evidence must fail.



C. Motion to Modify and Reduce Sentence

                   Finally, the Defendant asserts that this Court erred in sentencing the

Defendant     to a manifestly excessive and unduly harsh sentence.                    The Defendant is

challenging the discretionary          aspects of sentencing.         Commonwealth      v. Bishop, 831

A.2d 656, 660 (Pa. Super. 2003). Initially this Court notes that:



                                                     7
                Sentencing is within the sound discretion of the sentencing
               judge, and that decision will not be disturbed absent an
                abuse of discretion.     Commonwealth v. Jones, 418 Pa.
                Super. 93, 613 A.2cl 587, 591 (1992)(en. bane).           "To
               constitute an abuse of discretion, the sentence imposed
               must either exoeecl the stat·utory limits or be m.anifostly
               excessive." Commonwealth v. Gaddis, 432 Pa. Super. 523,
               639 A.2d 462, 469 (1994).          Nevertheless,  sentencing
               guidelines are merely advisory, and the court may, in its
               discretion, sentence outside the guidelines. When a trial
               court deviates from the guidelines, it must state its reasons
               for deviation on the record at the time of sentencing or in a
               contemporaneous written statement.        Commonwealth v.
               Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994).
               The court must also consider the guidelines as a starting
               point and deviate so as to impose a sentence consistent
               with both the public's safety needs and the defendant's
               rehabilitative needs. Id.

Commonwealth           v. Shaffer, 722   A.2d 195, 198-199       (Pa. Super.   1998).   If "the

sentencing    court proffers reasons      indicating that its d~ision to depart from the

guidelines    is not unreasonable,"       its responsibilities   have been fulfilled and the

appellate courts will not disturb the sentence.          Commonwealth v. Gibson, 716 A.2cl

1275, 1277 (Pa. Super. 1998).

                In the instant case, the Defendant's minimum sentence          was within the

standard range of the guidelines and maximum sentence was set at the statutory

maximums.        Unquestionably,     the sentence    imposed did not exceed the statutory

limits.   Therefore,    the Defendant's sentence must be evaluated to determine if it was

"manifestly excessive." To do so, the following considerations must be examined:

                In determining whether a sentence is manifestly excessive,
                the appellate court must give great weight to the
                sentencing court's discretion, as he or she is in the best
                position to measure factors such as the nature of the
                crime, the defendant's character, and the defendant's
                display    of   remorse,     defiance,   or   indifference.
                Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super.
                J 997). Where an excessiveness claim is based on a court's



                                                 8
               sentencing outside the guideline ranges, we look, at a
               minimum, for an indication on the record that the
               sentencing court understood the suggested sentencing
               range.    42 Pa. C.S.A. § 972l(b).       When the court so
               indicates, it may deviate from the guidelines, if necessary,
               to fashion a sentence which takes iota acccunt the
               protection of the public, the rehabilitative needs of the
               defendant, the gravity of the particular offenses as it relates
               to the impact on the life of the victim and the community,
               so long as the court also states of record the factual basis
               and specific reasons which compelled him to deviate from
               the guideline range.

Commonwealth       v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (citations omitted).

                  Moreover, "[i]t is well-settled that appeals of discretionary   aspects of a

sentence are not reviewable as a matter of right."          Commonwealth v. Ladamus, 896

A.2d 592, 595 (Pa. Super. 2006); see also Commonwealth v. Shugars, 895 A.2d 1270,

1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super.

2003).      The   defendant    must   demonstrate    that    a substantial    question   exists

concerning    the sentence.      Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super.

2005).     Furthermore,     a substantial question     requires   something    more than an

allegation that the sentences     imposed are excessive or harsh.     Laclamus, 896 A.2d at

595.     Consequently, Defendant's assertion that this Court abused its discretion by

imposing an excessive and harsh sentence fails to present a substantial            question to

justify a review of his claim.

               Additionally, even if the merit of the Defendant's sentencing claim were

addressed, Defendant's      argument must fail. The Defendant's sentence must initially

be evaluated to determine        if there was an abuse of discretion.        Commonwealth    v.

Walls, 926 A.2cl 957 (Pa. 2007).       The standard of review has been explained in the

following manner:




                                               9
                Sentencing is a matter vested in the sound discretion of the
                sentencing judge, mid a sentence will not be disturbed on
                appeal absent a manifest abuse of discretion.              In this
                context, an abuse of discretion is not shown merely by an
                error in judgment. Rather, the appellant must establish, by
                reforence to tfo: record, that tbe sentencing c~rnrt ignored or
                misapplied the law, exercised its judgment for reasons of
                partiality, prejudice, bias or ill will, or arrived at a manifestly
                unreasonable decision.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006),                     citing Commonwealth

v. Rodela, 723 A.2cl 212,       214 (Pa. Super. 1999)(en bane).

                In imposing        the Defendant's      sentence,     this Court      considered     the

"protection of the public, the gravity of the offense as it relates to the impact on the

victim and the community, the defendant's rehabilitative needs, an.cl the sentencing

guidelines."     42 Pa. C.S.A. § 9721(b);       Commonwealth         v. Feucht, 955 A.2d 377, 383

(Pa. Super. 2008).

                Prior to sentencing,       this Court     carefully reviewed the Pre-Sentence

Investigation Report prepared on September             14, 2016. The Court was aware of all of

the information contained therein.         Also, this Court did not fail to consider mitigating

factors.   Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (holding that

where a pre-sentence       report exists, there is a presumption that the sentencing judge

was aware of and adequately considered                 information    relevant    to the defendant's

character, as well as any mitigating factors).

                Additionally, it is axiomatic that the imposition            of consecutive      rather

than concurrent sentences lies within the sound discretion of the sentencing court.

Commonwealth         v. Booze, 953 A.2d 1263,          1279 (Pa. Super. 2008).         Long-standing

precedent recognizes that 42 Pa. C.S.A. § 9721 affords the sentencing court discretion

to impose      its   sentence    concurrently    or consecutively       to other     sentences     being



                                                  10
imposed at the same time or to sentences already imposed. 42 Pa. C.S.A. § 9721.                       See

also   Commonwealth          v.     Johnson,      961       A.2d    877,    880   (Pa.    Super.   2008);

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005}. "A challenge to the

imposition    of consecutive            rather than concurrent        sentences   does not present          a

substantial     question          regarding      the        discretionary    aspects      of   sentence."

Commonwealth      v. Lloyd, 878 A.2cl 867, 873 (Pa. Super. 2005).                 Indeed, the Superior

Court of Pennsylvania has stated:               "We see no reason why [a defendant] should be

afforded a 'volume discount' for his crimes by having all sentences run concurrently."

Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214 (1995).

               With all of this information              in mind, using its discretion         this Court

imposed a sentence          that was appropriate and within the law.                     Accordingly, the

Defendant's argument        is baseless and the Defendant's request to modify and reduce

sentence is denied.



D. Entitled to Jury Trial

               The Defendant argues that he was entitled to a trial by jury in the within

matter. However, this argument is baseless.                  This Court notes that the "right to a jury

trial exists when a defendant faces a charge which, alone, could lead to imprisonment

beyond six months."          Commonwealth v. Harriott,               919 A.2d 234, 237 (Pa. Super.

2007}, citing Commonwealth v. Kerry, 906 A.2cl 1237, 1239, 1240 (Pa. Super. 2006).

"By contrast, there is no jury trial right if an offense bears a maximum incarceration

of six months or less."           Id.     Pennsylvania      deems a first offense Driving Under the

Influence charge an ungraded misdemeanor, punishable by up to aix (6) months of

imprisonment.     See 75 Pa. C.S.A § 3803(a)(l).              Where a first offender refuses chemical



                                                       11
testing, the violation remains graded as an ungraded misdemeanor punishable by up

to 6 months' imprisonment.    75 Pa. C.S.A. § 3803(b)(2). Consequently, the Defendant's

argument is legally flawed.

             The Defendant's appeal is without merit and should be dismissed.




DATED:




                                           12
