J-S24017-18

                                   2018 PA Super 188


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN NEYSMITH,                            :
                                               :
                       Appellant               :   No. 1584 MDA 2017


          Appeal from the Judgment of Sentence, September 7, 2017,
               in the Court of Common Pleas of Franklin County,
             Criminal Division at No(s): CP-28-CR-0000813-2016.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY KUNSELMAN, J.:                                 FILED JUNE 28, 2018

        Kevin Neysmith appeals from the judgment of sentence, after a jury

convicted him of driving under the influence (DUI) of alcohol.1 We affirm.

        Late one night, Neysmith drove upon a highway of the Commonwealth

with a blood alcohol content (BAC) of 0.126. Erratic driving ensued. The state

police, following close behind Neysmith, recorded events on their cruiser’s

dashboard camera. See Commonwealth’s Suppression Exhibit 1. Neysmith

had difficulty staying in his lane, so the troopers pulled him over.

        At first, things proceeded routinely. The police smelled alcohol; heard

slurred speech; observed bloodshot and glassy eyes; and administered two

field sobriety tests and four breathalyzers. Neysmith failed both sobriety tests

and did not breathe hard enough to produce readings on the breathalyzer. As

____________________________________________


1   See 75 Pa.C.S.A. § 3802.
J-S24017-18



the troopers arrested him, Neysmith, drawing on his knowledge from several

prior DUI arrests, asked, “Can I get a needle test, please, with all due

respect?”      Commonwealth’s Suppression Exhibit 1; see also N.T. of

Suppression Hearing, 12/19/16, at 14.

       The state police had not requested a blood sample, so the trooper asked,

“For blood?” Commonwealth’s Suppression Exhibit 1.

       Neysmith answered, “Yeah, for blood.” Id.

       The trooper quickly accepted, saying, “That’s what we’re gonna do, sir.

We’re gonna take you to the hospital.” Id.

       Neysmith was so sure that a BAC test would prove his innocence that,

as the police patted him down, he again asked, “Do I get to take a blood test,

though?” Id.

       “Yes, we’re gonna do that,” the trooper reassured him. Id.

       Later, when they were at the hospital, the police presented Neysmith

with a DL-26 Form that Birchfield v. North Dakota, 579 U.S. ___, 136 S.Ct.

2160 (2016), would later render unconstitutional.2     Because Neysmith had

personally requested the blood draw before receiving the unconstitutional DL-




____________________________________________


2 The DL-26 Form was not Birchfield-compliant, because Neysmith’s arrest
occurred on March 14, 2016, three months prior to the decision in Birchfield
v. North Dakota, 579 U.S. ___, 136 S.Ct. 2160 (2016). Hence, when the
events of this case transpired, the former DL-26 Form was still widely viewed
as constitutional.



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26 Form, the judge distinguished these events from those in Birchfield and

permitted the jury to consider Neysmith’s blood-draw results.

      The jury convicted him of DUI.

      Next, the trial judge scheduled Neysmith’s sentencing for June 14, 2017

but, after several false starts, postponed that hearing until September 7,

2017. Neysmith caused these delays by contesting the Commonwealth’s claim

that he had two prior DUI convictions.         He challenged the prosecutors’

submission of a 2014 DUI conviction in Franklin County, Pennsylvania and a

similar 2013 conviction from Washington County, Maryland. Neysmith used

the alias of “Prince Fevoir St. Hilaire,” in both of those prior cases. He provided

that same alias to police during his arrest in this case.

      In the Maryland case, an intoxicated “St. Hilaire” drove a car registered

to Michelle McKeller, Neysmith’s “girlfriend of seven years.”          Trial Court

Opinion at 10.     Also, the Maryland defendant’s “name” and “birth date”

matched the “name” and “birth date” that Neysmith used in his past DUI

conviction in Pennsylvania. Thus, the trial court found that this case marked

Neysmith’s third DUI conviction in the past ten years. It therefore imposed a

sentence of 18 to 60 months of incarceration in the state penitentiary.

      This appeal followed.

      Neysmith raises three claims of error. First, he challenges the admission

of his blood draw into evidence, because, he claims, his consent to the draw

was involuntary. Neysmith’s Brief at 11. Second, Neysmith asserts that the

Commonwealth’s evidence was insufficient to support the trial court’s finding

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that he has a prior DUI conviction from Maryland. Id. Third, he argues that

the trial court violated his due process and speedy-trial rights by sentencing

him more than 90 days after his conviction. Id. We will address each issue

in turn.

       1. The evidence of record supports the suppression court’s finding that
          the DL-26 Form did not coerce Neysmith into requesting the blood
          draw.

       In appealing the common pleas court’s admission of his BAC from the

blood-draw test into evidence, Neysmith claims his consent to the test was

involuntary. Specifically, he argues that “the Commonwealth presented no

evidence that [his] decision to sign the O’Connell warnings3 and allow his

blood to be drawn was not due to fear of enhanced criminal penalties for

refusing the blood test.” Neysmith’s Brief at 21-22. The suppression judge

disagreed with this interpretation of the facts and found that Neysmith wanted

a blood draw, because he “believed that that blood test result was going to

vindicate him, demonstrate that he was not, in fact, under the influence of

alcohol.” N.T. of Suppression Hearing, 12/19/16, at 31-32.

       Neysmith correctly states that our “standard of review is limited” when

examining a suppression judge’s factual findings. Neysmith Brief at 9. We

review those findings “only for clear error and [are] to give due weight to
____________________________________________


3 “O'Connell warnings” refer to the obligation of a police officer to inform
motorists, of whom the officer requests chemical testing, that the Miranda
rights are inapplicable to such tests under the Pennsylvania Implied Consent
Law. See Commonwealth, Department of Transportation v. O'Connell,
555 A.2d 873 (Pa. 1989). The officer must also inform motorists of the legal
consequences they will face if they refuse consent to the blood-draw.

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inferences drawn from those facts by resident judges and local law

enforcement officers.”    Ornelas v. United States, 517 U.S. 690 (1996).

When applying a “clearly erroneous” standard, the suppression court's

findings of fact are binding upon the appellate court, unless definitely and

firmly convinced that the lower court made a mistake. In other words, we

shall only reverse a finding of fact if it is implausible in light of the reviewable

evidence.

      Our scope of review in these matters is limited to certain suppression-

hearing evidence. See In re L.J., 79 A.3d 1073 (Pa. 2013). Because the

Commonwealth prevailed on this issue in the suppression court, we consider

“only the evidence of the prosecution and so much of the evidence for the

defense as remains uncontradicted when read in the context of the record as

a whole. When the record supports the findings of the suppression court, we

are bound by those facts and may reverse only if the legal conclusions drawn

therefrom are in error.” Commonwealth v. Johnson, 33 A.3d 122, 124 (Pa.

Super. 2011).

      In this case, the crux of the issue is whether Neysmith’s consent to the

blood draw was knowing and voluntary.             See Neysmith’s Brief at 18;

Commonwealth’s Brief at 2. Valid consent is “the product of an essentially

free and unconstrained choice—not the result of duress or coercion, express

or implied, or a will overborne—under the totality of the circumstances.”

Commonwealth v. Caban, 60 A.3d 120, 130 (Pa. Super. 2012), overruled




                                       -5-
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on other grounds as recognized in Commonwealth v. Coleman, 130

A.3d 38, 42 n.1 (Pa. Super. 2015).

       Neysmith contends that the Commonwealth coerced him into requesting

the blood draw, because he knew, based on a DUI arrest in Luzerne County

in 2003, that refusing an officer’s blood-draw request would result in enhanced

criminal penalties.     Neysmith’s Brief at 21.   He also claims that the pre-

Birchfield DL-26 Form, which the troopers presented to him at the hospital,

confirmed his understanding that enhanced penalties would apply to a refused

blood draw.4

       Nowhere in his brief does he say how or why the judge’s findings of fact

were clearly erroneous, implausible in light of all the evidence, or

unsupportable given the facts of record. Instead, Neysmith is asking us to

revisit the suppression judge’s view of the facts.

       This we may not do, given our narrow scope of review and deferential

standard of review applicable to suppression judges’ findings of fact. Here,

the suppression judge watched the Commonwealth’s video of Neysmith

repeatedly requesting a blood draw. She found that, after he failed two field

sobriety tests and four breathalyzer attempts, Neysmith was worried about
____________________________________________


4 By contrast, in Commonwealth v. Robertson, ___ A.3d ___, 2018 WL
2057000 (Pa. Super. 2018), the Pennsylvania Department of Transportation
had revised the DL-26 Form in light of Birchfield. The Roberston Court held
that a defendant’s prior knowledge of enhanced criminal penalties from the
pre-Birchfield form is irrelevant to determining consent, because we presume
that everyone knows current case law. Of course, Roberston is inapplicable
to the case at bar, because Neysmith received the pre-Birchfield DL-26 Form.
Nonetheless, his consent was voluntary, as explained herein.

                                           -6-
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one thing and one thing only – going to jail for yet another DUI. So, she

concluded that Neysmith begged the state police to let him take a blood-draw

test as a final hope of proving his innocence. Indeed, he never expressed any

concerns over enhanced penalties for refusing a blood draw – a blood draw

that was his own idea. Because the police never requested permission to take

the blood test, they could not have overborne Neysmith’s will to say “no.”

Neysmith said “yes” to this search without the troopers ever asking him for

his consent.

      Moreover, nothing of record indicates that Neysmith requested a blood

draw, because he feared enhanced penalties for refusing the test. Thus, the

suppression judge’s finding of fact – namely, that the DL-26 Form played no

part in Neysmith’s consent – was anything but “implausible.” It was a rational

conclusion to draw and, therefore, not clearly erroneous. As such, that factual

finding is binding upon this appellate court. See Ornelas, supra; Johnson,

supra.

      In a footnote, Neysmith attempts to draw a nonexistent distinction

between his case and Commonwealth v. Haines, 168 A.3d 231 (Pa. Super.

2017), because the trial judge relied upon Haines in her 1925(a) opinion.

Neysmith claims that Haines “is not dispositive because the Superior Court

there merely remanded the case to the suppression court for that court to

consider the issue of timing of the consent for a blood draw.” Neysmith’s Brief

at 21 n. 3. This argument fails, because it substitutes Haines’ procedural




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result with its precedential holding. That does not distinguish Haines from

the case at bar.

      The Haines record did not clearly indicate when the defendant had

consented to the blood draw:       before or after receiving the Birchfield-

offending DL-26 Form.      Thus, the panel remanded for the trial court to

ascertain the precise moment of consent. The question on remand was which

came first: constitutional consent or unconstitutional coercion. To guide the

suppression court, we articulated the following bright-line, conditional rules:

         if [a DUI suspect] validly consented before being informed
         that he faced enhanced criminal penalties for failure to do
         so, then his consent would not be tainted by the warning
         and the blood test results would be admissible. See
         Birchfield, 136 S.Ct. at 2185–86. If, however, he did not
         consent until after [police] informed him that he would face
         enhanced criminal penalties if he refused to consent, then
         the trial court did not necessarily err in granting his motion
         to suppress the test results. Id.

Haines 168 A.2d at 236 (emphasis in original).

      Here, the suppression court has determined when the consent occurred

– Neysmith “consented before being informed that he faced enhanced

criminal penalties for failure to do so.” Id. Thus, “his consent” is un-“tainted

by the warning and the blood test results would be admissible.”           Id.   We

therefore conclude that Haines controls the outcome of this case, and the

suppression judge properly applied it to the facts as she found them.

      The judge concluded – and we agree – that the constitutional infirmities

of the previous DL-26 Form played no part in Neysmith’s consent to (and



                                     -8-
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desire for) a blood draw. His desire and consent arose at the time of arrest,

well before he received and read the unconstitutional DL-26 Form.

      Thus, Neysmith’s first appellate issue is without merit.

      2. Sufficient evidence supports the trial court’s finding that Neysmith
         pleaded guilty to a DUI in the State of Maryland.

      In his second claim of error, Neysmith says that there was insufficient

proof – by a preponderance of the evidence – that, in 2013, he pleaded guilty

to a DUI-equivalent charge in Maryland.

      Our standard of review is de novo, and our scope of review is plenary,

because:

         a claim challenging the sufficiency of the evidence is a
         question 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).

      The Pennsylvania General Assembly has established the burden of proof

at evidentiary hearings regarding prior convictions.

         If the offender or the attorney for the Commonwealth
         contests the accuracy of the record, the court shall schedule
         a hearing and direct the offender and the attorney for the
         Commonwealth to submit evidence regarding the previous
         convictions of the offender. The court shall then determine,
         by a preponderance of the evidence, the previous
         convictions of the offender and, if this section is applicable,
         shall impose sentence in accordance with this section.

42 Pa.C.S.A. § 9714 (emphasis added).

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      Neysmith argues that the Commonwealth failed to prove “that there is

not another individual whose name is actually Prince St. Hilaire whose identity

[Neysmith] was using.” Neysmith’s Brief at 25. Neysmith believes that the

Commonwealth needed to produce “photographic, fingerprint, or other reliable

identifying evidence which could assure the Court that” he was the person

convicted in Maryland.    Id. at 24 (emphasis added).       By using the word

“assure,” Neysmith demonstrates a fundamental misunderstanding for the

burden of proof. His demand for evidentiary assurance calls for a degree of

certainty not required in proving a prior conviction. See United States v.

Davis, 710 U.S. 104, 107 (3d Cir. 1983) (joining five other circuits to hold

that a statutorily-required, preponderance-of-the-evidence burden of proof at

sentencing hearings comports with Due Process Clause).

      A “preponderance of the evidence” is only “the greater weight of the

evidence, i.e., to tip a scale slightly is the criteria or requirement for

preponderance of the evidence.”      Ferri v. Ferri, 854 A.2d 600, 603 (Pa.

Super. 2004) (citing Commonwealth v. Brown, 786 A.2d 961, 968 (Pa.

2001), cert. denied, 537 U.S. 1187 (2003)). In other words, when weighing

the evidence of record, the trial judge need only find that the fact in question

is more-likely-than-not true. Thus, at prior-conviction evidentiary hearings,

the Commonwealth need not “assure” the court of anything. It need only

show that prior convictions probably belong to the offender. To determine

whether the Commonwealth offered evidence sufficient to tip the evidentiary




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scale in its favor, we will review all of the evidence and testimony offered at

the sentencing hearing.

      On the side of the scales favoring the Commonwealth’s proposition that

Neysmith and “St. Hilaire” are the same individual, first and foremost is the

certified record from Washington County, Maryland. See St. Hilaire, supra.

“The proof of prior conviction is a simple historical fact which may be

ascertained through official documents.” Commonwealth v. Lark, 504 A.2d

1291, 1298 (Pa. Super. 1986). The Commonwealth provided these official

documents from Maryland and made them of record as its Sentencing Exhibit

1. Those documents identify Neysmith by his alias, “Prince Fevoir St. Hilaire,”

the same name he provided to the troopers upon his arrest in this case. He

likewise used that same alias in 2014, for another DUI arrest and conviction

in Franklin County, Pennsylvania, a conviction Neysmith’s counsel admitted

the Commonwealth “established.” N.T. of Sentencing Hearing, 9/7/17 at 23.

      The official documents from Maryland also show a birth date matching

the one Neysmith provided for his prior, Franklin County DUI case. Moreover,

Neysmith’s Pennsylvania record included photographs of him, with the words

“Name Used:     Prince Fevoir St. Hilaire” below his face.   Commonwealth’s

Sentencing Exhibit 3. The person in that picture matches the image of the

man arrested in the video from this case. See Commonwealth’s Suppression

Exhibit 1.

      Also supporting the conclusion that Neysmith was the Maryland offender

is the fact that the Commonwealth discovered that conviction by searching

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trustworthy databases – the Unified Judicial System’s website, the Justice

Network of the Pennsylvania State Police, and the Maryland Judiciary’s

website. The district attorney’s staff entered various data on Neysmith into

these systems, including his name, alias, and birth date(s). They matched.

Those online sources returned the case of State v. St. Hilaire from the

District Court of Washington County, Maryland,5 because the false data that

Neysmith provided here corresponded with the false data he provided there.

        Finally, we give great weight to the fact that the various vehicles that

Neysmith drove while intoxicated in 2013, 2014, and 2016 all belonged to his

girlfriend, Michelle McKeller. In fact, Neysmith used the exact same vehicle

to commit DUI in Maryland that he used in 2014 in Pennsylvania.

        On the other side of the scales, to counterbalance the Commonwealth’s

weighty evidence, there is . . . nothing.6

        Thus, we find, as a matter of law, all of the evidence of record supports

the Commonwealth’s proposition that Neysmith, under his alias Prince Fevoir

____________________________________________


5   Maryland District Court’s docket No. 00YC0B3J.

6 This Court draws no inference from Neysmith not presenting any evidence
at sentencing. Remaining silent was his right under the Fifth Amendment to
the Constitution of the United States. See Mitchell v. United States, 526
U.S. 314, 317 (1999) (holding that the right to remain silent applies during
sentencing and a “court may not draw an adverse inference from the
defendant’s silence”). Nevertheless, Neysmith’s humbuggery is not proof, and
nihilism does not preclude a court from weighing hard evidence against the
nothingness proffered to rebut it. Thus, the right to remain silent is rather
less effective at sentencing than at trial, because the Commonwealth’s burden
of proof is far easier to carry at this point in the proceedings. One credible
utterance outweighs silence.

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St. Hilaire, pleaded guilty to DUI in Maryland in 2013. As such, the evidentiary

scales can only tip in the Commonwealth’s favor. We conclude, de novo, that

the Commonwealth offered sufficient evidence proving Neysmith’s conviction

in Maryland by a preponderance of the evidence. Therefore, we concur with

the trial court on Neysmith’s second appellate issue.

      3. The trial judge did not abuse her discretion by sentencing Neysmith
         108 days after his conviction.

      Lastly, Neysmith argues that the trial court violated his rights to due

process and a speedy trial, because it sentenced him 18 days after the 90-

day time period that Pennsylvania Rule of Criminal Procedure 704 indicates.

“[S]entence in a court case shall ordinarily be imposed within 90 days of

conviction . . . .”   Pa.R.Crim.P. 704.       The parties agree that sentencing

occurred outside the ordinary time frame of 90 days, but they disagree as to

whether Neysmith is entitled to relief (i.e., discharge of his sentence) due to

an 18-day delay.

      Before addressing Neysmith’s claim, we must determine our scope and

standard of review to a challenge under Pa.R.Crim.P. 704. Our precedents

have omitted this step from their Rule 704 analyses, when sentencings have

occurred outside the Rule’s 90-day window. See, e.g., Commonwealth v.

Null, ___ A.3d ___ (Pa. Super. 2018) (failing to discussion scope and standard

of review); Commonwealth v. Diaz, 51 A.3d 884, 891 (Pa. Super. 2012)

(accord, but weaving in an abuse-of-discretion standard of review as to the

fashioning of the defendant’s sentence); Commonwealth v. Dozier, 99 A.3d


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106 (Pa. Super. 2014) (accord); Commonwealth v. Fox, 953 A.2d 808 (Pa.

Super. 2008) (accord);       Commonwealth v. McLean, 869 A.2d 537 (Pa.

Super. 2005) (accord); and Commonwealth v. Still, 783 A.2d 829 (Pa.

Super. 2001) (accord, reviewing a trial court’s application of former

Pennsylvania Rule of Criminal Procedure 1405(A), the immediate predecessor

of Pa.R.Crim.P. 704, without articulating this Court’s scope or standard of

review).

      To articulate an appropriate scope and standard of review, we must first

look to the substantive test we are reviewing to ascertain our proper appellate

role in applying it. In Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999),

the Supreme Court of Pennsylvania mandated that “the trial court should

consider” four factors to determine whether a delay outside the ordinary 90

days established in the Rules of Criminal Procedure warrants discharge of the

case. Id. at 173 (emphasis added). Those factors are:

           (1) the length of the delay falling outside of Rule 1405(A)'s
           60-day-and-good-cause provisions, (2) the reason for the
           improper delay, (3) the defendant's timely or untimely
           assertion of his rights, and (4) any resulting prejudice to the
           interests protected by his speedy trial and due process
           rights. [Citing Glover, supra]. Prejudice should not be
           presumed by the mere fact of an untimely sentence. “Our
           approach has always been to determine whether there has
           in fact been prejudice, rather than to presume that prejudice
           exists.” [Quoting Glass, 526 Pa. at 337, 586 A.2d at 372-
           73].     The court should examine the totality of the
           circumstances, as no one factor is necessary, dispositive, or




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          of sufficient importance to prove a violation. [Citing Greer,
          382 Pa.Super. at 138 n. 4, 554 A.2d at 985 n. 4].”7

Id. (brackets in original).

       Had the Justices intended the Superior Court to apply the factors as a

matter of law, they would have remanded Anders here. Instead, the Justices

remanded to the trial court “for an evidentiary hearing and argument

concerning [Anders]’ right to relief for untimely sentencing.” Id. at 173–74.

Because evidentiary hearings are necessary under Pa.R.Crim.P. 704, it follows

that whether to discharge a defendant under the Anders factors cannot be a

pure question law for de novo review by this Court. Otherwise, the evidentiary

hearing ordered in Anders would have been pointless. Hence, we conclude

that whether discharge is required when sentencing occurs after the 90 days

under Rule 704 presents a mixed question of fact and law.

       “Mixed questions of fact and law raise a unique issue as to the

appropriate standard of review,” because, as Chief Justice Saylor has noted,

we have no “‘universal’ standard of review that would be applicable to these

types of determinations.”         Bauman, “Standards of Review and Scopes of

Review in Pennsylvania-Primer and Proposal,” 39 Duq. L. Rev. 513, 546-547

(2001) (citing Warehime v. Warehime, 761 A.2d 1138 (Pa. 2000) (Saylor,

J. concurring)). As the Chief Justice said:

____________________________________________


7 This block quote in Commonwealth v. Anders, 725 A.2d 170, (Pa. 1999),
refers to Pennsylvania Rule of Criminal Procedure 1405, now Pennsylvania
Rule of Criminal Procedure 704. Pa.R.Crim.P. 1405 had a 60-day window for
sentencing, which Rule 704 now extends to 90 days.

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         This, perhaps, results from the fact that mixed questions
         differ in terms of the degree to which the legal versus the
         factual     aspects   predominate.       See     generally
         Commonwealth v. Santiago, 439 Pa. Super. 447, 466,
         654 A.2d 1062, 1072 (1994) (describing federal courts’
         approach to review of mixed questions, which varies
         according to the predominance of legal over factual
         aspects).

Warehime at 1146 n. 4. (Saylor, J. concurring). He suggests that we employ

a deferential standard of review when the questions under review “are mixed

ones of law and fact, with the factual aspects predominating.” Id. at 1147.

      A Pa.R.Crim.P. 704 motion seeks to redress individualized harm arising

from untimely proceedings. Rather than mechanically applying a fixed, 90-

day period for sentencings, Anders instructs common pleas courts to evaluate

amorphous concepts such as “length of delay,” “good cause,” and “prejudice.”

These inquiries are case-specific and fact-intensive. Thus, we conclude that

factual aspects predominate this mixed question of law and fact, and the trial

judges sit in the best position to determine the causes and impacts of delays

in their own courtrooms. Accordingly, we adopt the Chief Justice’s reasoning

in Warehime, and we will review the trial court’s application of the Anders

factors deferentially.

      Hence, we defer to the trial court’s judgment on this issue of alleged

undue delay and shall reverse only for an abuse of discretion. We have long

held that mere errors in judgment do not amount to abuse of discretion;

instead, we look for “manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.” Grady v.


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Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003) (citing Paden v. Baker

Concrete Constr., Inc., 658 A.2d 341, 343 (Pa. 1995)). In addition, a trial

court abuses its discretion if “the law is overridden or misapplied.” Paden

(quoting Mielcuszny et ux. v. Rosol, 176 A. 236, 237 (Pa. 1934).

         Lastly, given the importance that the Anders Court placed upon having

an evidentiary hearing and the trial court applying the four factors to the facts

it finds, we hold that our scope of review is limited to the evidence on the

record of the Rule 704 evidentiary hearing and the factual findings of the trial

court.     Also, we must view the facts found in the light most favorable to the

prevailing party.

         Having ascertained our standard and scope of review, we now turn to

Neysmith’s argument on this issue.       In his brief, Neysmith focuses almost

entirely upon the fourth factor in Anders, claiming that the 18-day delay

prejudiced him, because, “due to his transportation between the Franklin

County Jail and State Correctional Institutions,” he “was unable to complete

the programming necessary for him to be paroled in a separate criminal case

. . . .” Neysmith’s Brief at 30. He adds that “there was no good cause shown

as to why [Neysmith’s] sentencing was continued past 90 days.”               Id.

Neysmith does not expound further upon his second contention.

         The trial judge disagreed with both claims. She found as a fact that

Neysmith “was not prejudiced in the delay in sentencing.” Trial Court Opinion

at 11. Indeed, Neysmith placed no evidence into the record to demonstrate




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his alleged prejudice. His unsubstantiated assertions of harm cannot undercut

the trial judge’s findings.

      Moreover, the trial court observed that Neysmith caused the delay by

requiring the Commonwealth to prove his prior DUI convictions, as described

above. In overruling Neysmith’s Pa.R.Crim.P. 704 objection, the trial judge

explained from the bench, “Mr. Neysmith has, in the Court’s mind, been the

cause of this issue. This is Mr. Neysmith’s failure to accept responsibility.”

N.T. of Sentencing Hearing, 9/7/17, at 26.

      In essence, by making the Commonwealth procure the official records

from the District Court of Washington County, Maryland, the trial court found

that Neysmith – instead of making a bona fide defense – was just obstructing

the process. Hence, the trial court concluded that any “prejudice” that may

have befallen Neysmith was of his own making. Had he not demanded that

the Commonwealth jump through post-trial hoops to prove a conviction that

Neysmith did not testify against or call one witness to rebut, he would have

been in the penitentiary to complete his programming and potentially been

paroled.     Of course, in light of his subsequent conviction in this matter,

Neysmith’s could only hope for parole in lieu of incarceration. Thus, his claim

of prejudicial harm was, at best, speculative.

      In the trial court’s judgment, Neysmith’s delayed sentencing was self-

inflicted.   Such judgment does not “manifest unreasonableness.”         Grady,

supra. Also, Neysmith’s brief does not allege bias, partiality, prejudice, or ill




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will anywhere. And, he does not claim that the trial court misapprehended

the Anders factors or improperly weighed them.

      Instead, Neysmith simply reargues his case to us. But, as the Supreme

Court of Pennsylvania demonstrated in remanding Anders to the trial court,

this Court is not primarily responsible for applying the four factors. And our

review of their application is not de novo. Our appellate sphere is restrained.

We may not simply displace the trial court’s judgment with our own on such

a fact-sensitive, situationally driven matter.

      On this record, the most we can say of the trial judge’s judgment is that

reasonable people might fairly disagree with it. But, reaching a disputable

conclusion does not make for an abuse of discretion.

      Thus, Neysmith’s final assignment of error is meritless, as well.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




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