J-S79026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOSHUA MANNERS

                            Appellant             No. 3590 EDA 2015


            Appeal from the Judgment of Sentence August 25, 2015
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0004304-2014


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                     FILED DECEMBER 16, 2016

       Joshua Manners appeals from the August 25, 2015 judgment of

sentence1 imposed by the Court of Common Pleas of Chester County

following Manners’ convictions for driving under the influence of alcohol

(“DUI”), unauthorized use of automobiles, and various summary offenses.2

We affirm.

____________________________________________


       1
       In his notice of appeal, Manners purports to appeal from the order
denying his post-sentence motions. However, an “order denying post-
sentence motions acts to finalize the judgment of sentence for purposes of
appeal. Thus, the appeal is taken from the judgment of sentence, not the
order denying post-sentence motions.” Commonwealth v. Chamberlain,
658 A.2d 395, 397 (Pa.Super. 1995).
       2
        Manners was convicted of one count each of DUI, 75 Pa.C.S.
§ 3802(a)(1), and unauthorized use of automobiles, 18 Pa.C.S. § 3928. He
was also convicted of the following summary offenses: driving on roadways
laned for traffic, 75 Pa.C.S. § 3309(1); following too closely, 75 Pa.C.S.
§ 3310(a); driving on divided highways, 75 Pa.C.S. § 3311(a); driving
(Footnote Continued Next Page)
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      On October 4, 2014, Manners and Eugene Goeser attended a mutual

friend’s wedding in Delaware.              After the wedding reception, Manners

obtained the keys to Goeser’s vehicle from the valet at the venue without

Goeser’s knowledge. While driving Goeser’s vehicle northbound on Route 1

in Pennsylvania, Manners lost control of the vehicle, which crossed the

median and struck a southbound-traveling vehicle operated by Susan

Cornett. When Pennsylvania state troopers arrived at the scene, the vehicle

operated by Manners was lying on its side on the right shoulder of the

southbound lane, and Cornett’s vehicle was resting against the guardrail.

Manners refused field sobriety tests and was arrested for DUI.             The trial

court further found:

          [Manners] admits he was driving Dr. Goeser’s vehicle [on]
          the night in question . . . [but] Dr. Goeser testified that
          [Manners] did not have permission to drive his car that
          night. . . .

          . . . Dr. Goeser testified that the plan was for Dr. Goeser to
          pick [Manners] and his date up from the hotel, drive to
          their friend’s wedding, leave the car there, take a taxi cab
          home, and then pick up his car the next morning. They
          made these plans because all parties were planning on
          drinking that night.

Opinion Pursuant to Pa.R.A.P. 1925, 4/29/16, at 4 (“1925(a) Op.”).3


                       _______________________
(Footnote Continued)

vehicle at safe speed, 75 Pa.C.S. § 3361; and careless driving, 75 Pa.C.S.
§ 3714(a).
      3
        The trial court misidentified the applicable rule as “Pa.R.C.P. 1925”
rather than Pennsylvania Rule of Appellate Procedure 1925.


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     Following a two-day bench trial, the trial court convicted Manners of

DUI, unauthorized use of automobiles, and related offenses. On August 25,

2015, the trial court sentenced Manners to 1 to 6 months’ incarceration

followed by 2 years’ probation and made him work-release eligible after

serving 14 days of his prison sentence. The trial court also ordered Manners

to pay restitution as follows: $300.42 to Cornett; $5,000 to Blue Cross Blue

Shield; $9,627 to State Farm Insurance Company; and $4,300 to Goeser.

     On September 3, 2015, Manners timely filed post-sentence motions,

challenging the sufficiency of the evidence to support his convictions and

requesting a modification of his sentence. After an evidentiary hearing, the

trial court denied the post-sentence motions on November 2, 2015.

Manners timely appealed to this Court.

     On appeal, Manners raises the following issues:

        A. Whether the Commonwealth failed to present evidence
           sufficient to establish beyond a reasonable doubt that
           [Manners] did not reasonably believe that the owner of
           the vehicle in question would have consented to the
           operation of the vehicle had he known of it pursuant to
           18 Pa.C.S. §3928(b).

        B. When [Manners] made application for appeal bail at
           sentencing, was it vindictive and/or based on
           impermissible sentencing factors to increase the
           amount of jail time [Manners] would have to serve from
           three days to fourteen days to become work release
           eligible?

        C. Did the trial court rely on impermissible sentencing
           factors or considerations

           i)    when it informed [Manners] it was bad timing [for
                 him] because of an unrelated homicide;


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               ii)      when the court commented how its college
                        students were embarrassed of [Manners] and
                        thought he testified poorly.

          D. Whether the trial court’s restitution order was illegal in
             that it was:

               i)       speculative and unsupported by the record as to
                        the $4300 ordered to Eugene Goeser; and

               ii)      unsupported by the record and violated
                        [Manners’] due process rights as to the $4500 to
                        Blue Cross/Blue Shield.

Manners’ Br. at 3-4.

       Manner first argues that the evidence was insufficient to support his

conviction for unauthorized use of automobiles because the evidence

established that Manners reasonably believed that Goeser would have

consented to Manners’ use of his vehicle had he known about it.              When

reviewing a sufficiency of the evidence claim, we must determine whether,

viewing the evidence in the light most favorable to the Commonwealth as

the verdict winner, there was “sufficient evidence to enable the fact-finder to

find   every         element   of   the   crime   beyond   a   reasonable   doubt.”

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001)

(quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.Super.

2000)).   In applying this standard, “we may not weigh the evidence and

substitute our judgment for [that of] the fact-finder.” Id.

       The trial court addressed Manners’ sufficiency claim in its opinion and

properly concluded that the evidence was sufficient to support Manners’

conviction for unauthorized use of automobiles. In particular, in light of the

testimony of the vehicle’s owner and surrounding circumstances, the trial

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court found the evidence sufficient to prove that Manners did not reasonably

believe the owner would have consented to Manners’ operation of the vehicle

had the owner known about it.           We agree with and adopt the trial court’s

reasoning. See 1925(a) Op. at 3-5.

       Next, Manners argues that the trial court’s decision to increase

Manners’ prison sentence from 3 days to 14 days before he could become

work-release eligible was vindictive and that the trial court relied on

impermissible factors in imposing the sentence.4        We review a trial court’s

sentencing determination for an abuse of discretion.          Allen, 24 A.3d at

1064. We will not find an abuse of discretion “unless the record discloses

that the judgment exercised was manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will” or demonstrates “such lack of support

. . . as to be clearly erroneous.” Id. (quoting Commonwealth v. Walls,

926 A.2d 957, 961 (Pa. 2007)).

       The trial court thoroughly addressed Manners’ discretionary aspects of

sentencing claims in its opinion. We agree with and adopt the reasoning of

____________________________________________


       4
        Manners’ claims challenge the discretionary aspects of sentencing.
We will review these claims because Manners: (1) filed a timely notice of
appeal; (2) raised the sentencing claims in his post-sentence motions; (3)
included a Pennsylvania Rule of Appellate Procedure 2119(f) statement in his
brief; and (4) raised a substantial question that his sentence is inappropriate
under the Sentencing Code. See Commonwealth v. Batts, 125 A.3d 33,
43 (Pa.Super. 2015), app. granted in part, 135 A.3d 176 (Pa. 2016); see
also Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa.Super. 2011)
(recognizing that appellant’s claim that sentence is excessive because trial
court relied on impermissible factors raises substantial question).


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the trial court, which properly concluded that it did not rely on impermissible

factors or otherwise abuse its discretion in imposing sentence. See 1925(a)

Op. at 8-16.

      Finally, Manners argues that the trial court’s restitution order is illegal

because the record does not support the restitution granted either to Goeser

or to Blue Cross Blue Shield. A claim that a restitution order is unsupported

by the record challenges the legality, rather than the discretionary aspects,

of sentencing. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa.Super.

2004). “[T]he determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Hughes, 986 A.2d 159,

160 (Pa.Super. 2009).

      After our review of this issue, we conclude that the restitution order is

supported by the record for the reasons stated in the trial court’s opinion.

We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 16-

20.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016


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