J-S05005-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
JOHN HULL,                                 :
                                           :
                   Appellant               : No. 1629 WDA 2013

           Appeal from the Judgment of Sentence August 23, 2013,
                 Court of Common Pleas, Allegheny County,
                Criminal Division at No(s): CC 2012 – 11026
                        and CP-02-CR-0011026-2012

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED FEBRUARY 4, 2015

       John Hull (“Hull”) appeals from the judgment of sentence entered on

August 23, 2013, by the Court of Common Pleas of Allegheny County,

Criminal Division, following his convictions of driving under the influence of

alcohol and a controlled substance (“DUI”)1 and failing to drive within a

single lane.2 For the reasons that follow, we affirm.

       The trial court summarized the facts of this case as follows:

             [O]n May 5, 2012[,] at about 2:27 a.m., Officer
             Potts of the Jefferson Hills Borough Police
             Department observed a vehicle traveling in the
             opposite direction at a high rate of speed. This
             vehicle, a Buick, went through the curve with the
             right tires over the fog line approximately three feet,
             then veering back onto the road. As Officer Potts


1
    75 Pa.C.S.A. § 3802(a)(1), (b), (d)(1)-(3).
2
    75 Pa.C.S.A. § 3309(1).
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          was preparing to turn around so as to follow the
          Buick, a second vehicle approached at an even
          higher rate of speed than the Buick. This vehicle
          also veered off of the road at the curve with the right
          tires being almost in the grass and the left tires at
          the fog line. The second vehicle was identified as an
          older Chevrolet Beretta [(“the Beretta”)].        After
          Officer Potts turned his vehicle around, he was able
          to see the tail lights of the Beretta pull off onto the
          left side of the road. Upon arriving at the location of
          the Beretta, Officer Potts noticed that the Buick he
          had first encountered was parked next to the
          Beretta.

          Upon approaching the vehicles, the driver of the
          Beretta was still in the car, and another male was
          standing outside of the Beretta’s driver’s door
          speaking to its driver. This male, later identified as
          [Hull], stated to Officer Potts that he and the driver
          of the Beretta were going to see a woman who lived
          nearby and “laughed and indicated that they both
          hoped to have sex with her.” He further indicated
          that he was showing his friend where she lived. He
          admitted that the Buick was his car. Officer Potts
          confirmed that the vehicle is registered to [Hull].
          During his conversation with Officer Potts, [Hull] was
          swaying and appeared unsteady on his feet. He had
          to lean upon the Beretta for support and admitted to
          drinking.    The keys to the Buick were found in
          [Hull]’s pocket. Further, Officer Potts recovered an
          open bottle of rum from the front floor of the Buick.
          [Hull] indicated that he did not want to take field
          sobriety tests due to his current injuries, and
          requested a blood, breath, or urine test.

          When [Hull] was returned to the police station after
          refusing to take a blood test upon request, Officer
          Potts went to read him the implied consent warnings
          from the DL-26 form. During that time, [Hull] stated
          that he had been stopped for five (5) minutes before
          Officer Potts appeared. Ultimately, [Hull] submitted
          to a blood test. [Hull] was found to have a blood
          alcohol [level] of 0.138%. He was also found to



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             have 39 ng/mL of cocaine and 1085 ng/mL of
             Benzoylecgonine in his blood.

Trial Court Opinion, 5/13/14, at 2-3 (record citations omitted).

       On May 9, 2012, Hull was charged with reckless driving,3 failing to

drive within a single lane, and five counts of DUI.      On August 23, 2013,

Hull’s case proceeded to a non-jury trial after which the trial court found Hull

guilty on all counts except reckless driving. Hull waived his right to a pre-

sentence report and his case proceeded directly to sentencing.         The trial

court sentenced Hull to serve four days at the DUI Alternative to Jail

Program and six months of probation, in addition to paying all mandatory

fines and costs.

       On September 23, 2013, Hull filed a timely notice of appeal.          On

October 23, 2013, the trial court ordered Hull to file a concise statement of

the errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure.       On November 19, 2013 and

again on January 8, 2014, the trial court granted Hull forty-five day

extensions to file his Rule 1925(b) statement. On March 4, 2014, Hull filed

his Rule 1925(b) statement.

       The Commonwealth argues that Hull did not timely file his Rule

1925(b) statement and has therefore waived the issue that he raises on

appeal. See Commonwealth’s Brief at 10 n.3. We agree that Hull’s 1925(b)



3
    75 Pa.C.S.A. § 3736.


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statement is untimely.   On January 8, 2014, following his second request,

the trial court granted Hull a forty-five day extension to file his Rule 1925(b)

statement, making it due by February 24, 2014. See id. Hull did not file his

Rule 1925(b) statement until March 4, 2014. Nevertheless, our Court has

held that under these circumstances, the untimely filing of a Rule 1925(b)

statement “is per se ineffectiveness because it is without reasonable basis

designed to effectuate the client’s interest and waives all issues on appeal.”

Commonwealth v. Burton, 973 A.2d 428, 432-33 (Pa. Super. 2009) (en

banc).   Furthermore, “if there has been an untimely filing, this Court may

decide the appeal on the merits if the trial court had adequate opportunity to

prepare an opinion addressing the issues being raised on appeal.”        Id. at

433. Here, Hull’s counsel filed a Rule 1925(b) statement setting forth the

issue Hull seeks to raise on appeal, and the trial court filed an opinion

addressing that issue. Accordingly, we will consider the merits of the issue

presented on appeal. See id.

      On appeal, Hull raises the following issue for our review and

determination: “Did the [t]rial [c]ourt err as a matter of law in determining

that there was sufficient evidence to convict [Hull] of the DUI[-]related

offenses?” Hull’s Brief at 1. In reviewing a challenge to the sufficiency of

the evidence, our standard of review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record in the light most favorable to the verdict



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             winner giving the prosecution the benefit of all
             reasonable inferences to be drawn from the
             evidence.   Evidence will be deemed sufficient to
             support the verdict when it establishes each material
             element of the crime charged and the commission
             thereof by the accused, beyond a reasonable doubt.
             Nevertheless, the Commonwealth need not establish
             guilt to a mathematical certainty. Any doubt about
             the defendant’s guilt is to be resolved by the fact
             finder unless the evidence is so weak and
             inconclusive that, as a matter of law, no probability
             of fact can be drawn from the combined
             circumstances.

             The Commonwealth may sustain its burden by
             means     of     wholly    circumstantial    evidence.
             Accordingly, [t]he fact that the evidence establishing
             a    defendant’s   participation   in   a   crime    is
             circumstantial does not preclude a conviction where
             the evidence coupled with the reasonable inferences
             drawn therefrom overcomes the presumption of
             innocence. Significantly, we may not substitute our
             judgment for that of the fact finder; thus, so long as
             the evidence adduced, accepted in the light most
             favorable to the Commonwealth, demonstrates the
             respective elements of a defendant’s crimes beyond
             a reasonable doubt, the appellant’s convictions will
             be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).

       Hull only challenges the trial court’s finding that he drove, operated or

was in actual physical control of the Buick on the night in question.4 Id. at




4
    The DUI statute, in pertinent part, provides as follows:

             (a) General impairment.--



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                (1) An 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.

                              *     *     *

          (b) High rate of alcohol.--An 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   alcohol
          concentration in the individual's blood or breath is at
          least 0.10% but less than 0.16% within two hours
          after the individual has driven, operated or been in
          actual physical control of the movement of the
          vehicle.

                              *     *     *

          (d) Controlled substances.--An individual may not
          drive, operate or be in actual physical control of the
          movement of a vehicle under any of the following
          circumstances:

                (1) There is in the individual’s blood any
                amount of a:

                      (i) Schedule I controlled     substance, as
                      defined in the act of April   14, 1972 (P.L.
                      233, No. 64),1 known as       The Controlled
                      Substance, Drug, Device        and Cosmetic
                      Act;

                      (ii) Schedule II or Schedule III controlled
                      substance, as defined in The Controlled
                      Substance, Drug, Device and Cosmetic
                      Act, which has not been medically
                      prescribed for the individual; or



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5. Hull contends that Officer Potts did not see him driving the Buick and that

a period of time elapsed from when Officer Potts first saw the Buick to when

he came upon it stopped along the side of the road. Id. at 6. Thus, Hull

avers that Officer Potts lost sight of the Buick long enough for another

potential driver to leave the scene.     Id.   Hull does not dispute that he

consumed a sufficient amount of alcohol and drugs such that the he was

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

the movement of the vehicle. See id. at 5-6.

      We conclude, after evaluating the evidence in the light most favorable

to the Commonwealth as the verdict winner, that the Commonwealth proved

beyond a reasonable doubt that Hull was operating the Buick. The certified

record on appeal reveals the following. Officer Potts observed two cars, the



                        (iii) metabolite of a substance under
                        subparagraph (i) or (ii).

                  (2) The individual is under the influence of a
                  drug or combination of drugs to a degree
                  which impairs the individual's ability to safely
                  drive, operate or be in actual physical control
                  of the movement of the vehicle.

                  (3) The individual is under the combined
                  influence of alcohol and a drug or combination
                  of drugs to a degree which impairs the
                  individual's ability to safely drive, operate or be
                  in actual physical control of the movement of
                  the vehicle.

75 Pa.C.S.A. § 3802(a)(1), (b), (d)(1)-(3).



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Buick and the Beretta, driving on North Lewis Run Road at a high rate of

speed, well above the speed limit, when they both veered slightly off the

road on a curve near the Annhurst Apartments. Affidavit of Probable Cause,

5/7/12, at 2.   Officer Potts pursued and caught up with the two vehicles,

which had on their own already pulled off the road. Id. While Officer Potts

was questioning Hull, he learned that Hull was the owner of the Buick. After

placing Hull under arrest, Officer Potts recovered the keys to the Buick from

Hull’s pocket. Id. Importantly, after Officer Potts placed Hull under arrest,

Hull admitted to operating the Buick.      See id. at 3.   While Hull berated

Officer Potts for making what Hull described as an illegal arrest, Hull told

Officer Potts that the officer was out his jurisdiction when Hull had already

stopped and got out of his car. Id. at 3. Hull stipulated to these facts as

presented in the police report and the affidavit of probable cause.       N.T.,

10/23/13, at 5-7. Hull did not present any evidence that any other person

operated the Buick at the time in question.     Therefore, the evidence was

more than sufficient to conclude that Hull had operated the Buick.

Accordingly, because Hull only challenged the finding that he operated the

Buick on the night in question, there was sufficient evidence to sustain Hull’s

convictions for DUI.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/2015




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