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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                   v.                      :
                                           :
JASON SALTSMAN                             :
          Appellant                        :
                                           :   No. 1719 WDA 2015

            Appeal from the Judgment of Sentence October 12, 2015
               In the Court of Common Pleas of McKean County
               Criminal Division No(s): CP-42-CR-0000143-2015


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                             FILED JULY 22, 2016

        Appellant, Jason Saltsman, appeals from the October 12, 2015

Judgment of Sentence of six (6) months’ probation plus payment of

restitution entered in the Court of Common Pleas of McKean County

following his conviction after a bench trial of driving under the influence –

general impairment (“DUI”).1 After careful review, we conclude that (i) the

Commonwealth presented sufficient evidence to support the trial court’s

conviction; and (ii) the trial court erred as a matter of law in ordering

restitution.   As such, we affirm in part and reverse in part Appellant’s

Judgment of Sentence.




1
    75 Pa.C.S. § 3802 (a)(1) – General Impairment.


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      We summarize the factual and procedural history of this case as

follows.     On December 18, 2014, Port Allegany Police Officer Adam

Dickerson responded to a report of an altercation at the Sheetz convenience

store in Port Allegany, Pennsylvania. (N.T., 09/14/15, at 8). Upon arrival,

Officer Dickerson saw Appellant standing outside the store with two other

males. The two others walked away, and Officer Dickerson, who recognized

Appellant, began speaking with him. Id.

      While speaking with Appellant, Officer Dickerson smelled an odor of

alcohol emanating from Appellant’s person.      Id.   Officer Dickerson noticed

that Appellant’s eyes were bloodshot and glassy, his speech was slower than

“normal,” and as Appellant spoke, his body swayed back and forth. Id. at

10. Appellant told the officer that he and his friends had recently returned

from the Roadside Saloon, where he had consumed “somewhere between

eight and ten beers over a three-hour time span.”        Id.   He further stated

that he drove himself to the Sheetz convenience store for food, and later

acknowledged that “he probably shouldn’t have been driving that evening.”

Id. at 11.

      Officer Dickerson administered field sobriety tests to Appellant. During

the walk and turn test, Appellant raised his arms and failed to keep his feet

heel to toe, two indicia that a subject is over the legal limit for blood alcohol

content. Id. at 24. During the one-legged stand test, Appellant could not

hold his right foot in the air for more than two or three seconds. Id. at 15.



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Instead, he almost immediately put his foot back on the ground and lifted

his arms in an attempt to balance himself. Id. Based on his training as well

as his extensive experience with persons under the influence, Officer

Dickerson concluded that Appellant was too intoxicated to drive. Id. at 16.

      Officer Dickerson placed Appellant under arrest and drove him to

Charles Cole Hospital for a blood test. Id. Appellant was charged with one

count each of DUI – General Impairment, and DUI – High Rate of Alcohol.

In a pre-trial motion, the Commonwealth withdrew Count 2, DUI – High Rate

of Alcohol. Id. at 4.

      The trial court convicted the Appellant of DUI – General Impairment

and then sentenced Appellant to a term of six (6) months’ probation, plus

restitution in the amount of $101.00 for the blood testing fee. Appellant did

not file any post-sentence motions. He timely filed the instant appeal.

      Appellant raises the following issues for review:

      1. Was there sufficient evidence to convict Appellant for violating 75
         Pa.C.S. § 3802(a)(1)?

      2. Did the Trial Court make an error of law when it ordered that
         Appellant pay for restitution to the PAPD in the amount of $101.00
         for the blood testing fee, even though Count 2, 75 Pa.C.S. §
         3802(b) was dismissed prior to trial?

Appellant’s Brief at 2.

      In his first issue, Appellant avers that the Commonwealth failed to

prove beyond a reasonable doubt that he operated a vehicle while under the

influence. Specifically, Appellant emphasizes that the officer did not see him



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in the vehicle at any point, and did not find car keys anywhere on his

person. Id. at 3.

      In reviewing the sufficiency of the evidence, the applicable standard of

review is as follows:

      The standard of review for a challenge to the sufficiency of the
      evidence is to determine whether, when viewed in a light most
      favorable to the verdict winner, the evidence at trial and all
      reasonable inferences therefrom is sufficient for the trier of fact
      to find that each element of the crimes charged is established
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden of proving every element beyond a reasonable doubt by
      means of wholly circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubt
      raised as to the accused’s guilt is to be resolved by the fact-
      finder. As an appellate court, we do not assess credibility nor do
      we assign weight to any of the testimony of record. Therefore,
      we will not disturb the verdict 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.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotations omitted).

      Our Vehicle Code provides that “[a]n individual may not drive,

operate, or be in actual physical control of the movement of a vehicle after

imbibing a sufficient amount of alcohol such that the individual is rendered

incapable of safely driving, operating, or being in actual physical control of

the movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1); Commonwealth

v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011). The Commonwealth may

establish by the “totality of the circumstances” that a defendant drove,



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operated, or was in actual physical control of a motor vehicle.            See

Commonwealth v. Johnson 833 A.2d 260, 266 (Pa. Super. 2003)

(concluding that there existed sufficient evidence to prove beyond a

reasonable doubt that the Defendant drove, operated, or was in actual

physical control of a vehicle, even though he was standing outside the

vehicle when the police arrived and the police never actually witnessed him

driving).

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

applicable law, and the opinion of the trial court, we conclude that there is

no merit to Appellant’s challenge to the sufficiency of the evidence.        As

noted above, by his own admission, Appellant drove his vehicle while

impaired. He told Officer Dickerson that he had been drinking at a bar with

friends, had consumed between eight to ten beers over a three-hour time

span, and then drove his friends back to Port Allegany before he drove to

the Sheetz store.     Appellant also admitted to Officer Dickerson that he

“probably shouldn’t have been driving that evening.”       (N.T., 09/14/15, at

10).

       This admission, when combined with Officer Dickerson’s observation of

Appellant’s impaired state, as well as Appellant’s inability to pass the field

sobriety tests, was sufficient to support Appellant’s DUI conviction.      See

Johnson, 833 A.2d at 260.




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      We next address Appellant’s assertion that the trial court erred when it

ordered that he pay restitution to the Port Allegany Police Department in the

amount of $101.00 for the blood testing fee.       He avers that because the

District Attorney withdrew Count 2 prior to trial,2 the trial court lacked the

authority to order him to pay for the blood test. Appellant’s Brief at 7.

      Before turning to the merits of this claim, we address the trial court’s

assertion that Appellant waived this claim.     The trial court’s authority to

impose restitution goes to the legality of a sentence and therefore, cannot

be waived by Appellant’s failure to file a post-sentence motion.        In the

Interest of M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that when a

court’s authority to impose restitution is challenged, it pertains to the

legality of a sentence and as such cannot be waived). Moreover, this Court

has long held that “[a]n illegal sentence can never be waived and may be

reviewed sua sponte by this Court.” Commonwealth v. Jacobs, 900 A.2d

368, 374 (Pa. Super. 2006) (en banc).

      Resolution of this claim requires that we interpret 18 Pa.C.S. § 1106,

which governs restitution in criminal sentencing. Statutory interpretation is

a question of law, therefore, our standard of review is de novo, and our

scope of review is plenary. Brown v. Levy, 73 A.3d 514, 517 (Pa. 2013).




2
 Appellant was charged with Count 2 under 75 Pa.C.S § 3802(b) – High
Rate of Alcohol.



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When ascertaining the meaning of a statute, if the language is clear, we give

the words their plain and ordinary meaning. See Id.

       Restitution is controlled by Section 1106, which states:

       Upon conviction for any crime wherein property has been stolen,
       converted, or otherwise unlawfully obtained, or its value
       substantially decreased as a direct result of the crime, or
       wherein the victim suffered personal injury directly resulting
       from the crime, the offender shall be sentenced to make
       restitution in addition to the punishment prescribed therefor.

18 Pa.C.S. § 1106.

       As applied here, Appellant did not steal, convert, or otherwise

unlawfully obtain any property and did not cause any personal injuries.

Accordingly, Section 1106 cannot apply, the trial court erred as a matter of

law in ordering restitution, and we reverse that part of the sentence.3

       We, however, do not remand for resentencing because the restitution

portion of the sentence is not integral to the entire sentence as a whole: “[a]

remand is not necessarily appropriate when a portion of a sentence is

vacated on appeal, if the vacated portion of the sentence was not integral to

the penalty.”   Commonwealth v. Thur 906 A.2d 552 (Pa. Super. 2002);

C.f.   Commonwealth v. Deshong, 850 A.2d 712, 716-717. (Pa. Super.

2004) (remanding for resentencing where the trial court specifically




3
 Because the trial court had no authority to impose restitution, we do not
need to address Appellant’s argument that, because the District Attorney
withdrew Count 2, the trial court erred in imposing restitution.



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indicated that it factored restitution into its decision to sentence Defendant

to a term of imprisonment below the sentencing guidelines).

      In the instant case, the trial court sentenced Appellant to the

recommended sentence of probation without mentioning restitution as a

consideration in its choice of probation. (N.T. Sentencing, 10/12/15, at 5).

The imposition of restitution was thus not integral to the sentence imposed,

and our reversal of the restitution order does not upset the sentencing

scheme.

      In consideration of the foregoing, we affirm the conviction and

sentence of probation, and reverse the restitution portion of the Judgment of

Sentence.

      Conviction affirmed. Judgment of Sentence affirmed in part and

reversed in part.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




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