J-S68026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHELLE LIZETTE MIRANDA                   :
                                               :   No. 683 MDA 2017
                       Appellant

             Appeal from the Judgment of Sentence March 22, 2017
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0001175-2016


BEFORE:      LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.:                             FILED DECEMBER 11, 2017

        Appellant, Michelle Lizette Miranda, appeals from the Judgment of

Sentence entered in the Berks County Court of Common Pleas following a

bench trial. Appellant challenges the weight and sufficiency of the evidence

to support her conviction for Driving Under the Influence,1 certain evidentiary

rulings, and the discretionary aspect of her sentence. After careful review, we

affirm.

        The facts, as gleaned from the certified record, are as follows. On

December 19, 2015, Appellant’s daughter, Damiana Villa, called the police

because her mother and father had been fighting, and told the dispatcher that

Appellant had been drinking that night “because [Villa] didn’t want her to


____________________________________________


1   75 Pa.C.S. § 3802(a)(1).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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leave[.]” N.T. Trial, 2/8/17, at 27. Villa told the dispatcher that Appellant

had driven away from the house in a red Chevy Blazer. Id. at 65-66.

     Corporal Thomas Moran and Trooper Benjamin Scott of the Pennsylvania

State Police responded to the dispatch, which they received as an active

domestic dispute at Appellant’s home. Id. at 64. When they arrived, Corporal

Moran determined everyone in the house was okay, and as he returned to his

patrol vehicle to get written statement forms, he observed Appellant drive a

red Chevy Blazer into the development. Id. at 67. He approached the vehicle

and “immediately smelled the odor of what appeared to be an alcoholic

beverage.” Id. at 67-68. He stated that Appellant’s eyes were bloodshot and

glassy. Id. at 68.

     Corporal Moran conducted standard field sobriety tests on Appellant,

which she failed.    Her performance on the breathalyzer test indicated the

presence of alcohol in her system. Id. at 77-78. Corporal Moran arrested

Appellant for suspicion of DUI. Id. at 79-80.

     While Corporal Moran was conducting the field sobriety testing, Trooper

Scott took statements from Villa, Appellant’s son, and her ex-husband, who

also lived at the house. Id. at 91-94. He told them to write what happened

that evening and to read the bottom statement on the form. Id. at 95. The

statement indicates that if a person lies on the document, the person can be

charged.   Id.   He testified that he did not instruct them to indicate that

Appellant had been drinking.    Id. at 94.      In her written statement, Villa




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averred that Appellant “had been drinking a lot causing her to be aggressive

through the evening.” Id. at 133.

       Appellant proceeded to a bench trial on February 8, 2017, at which Villa

and the police officers testified.       The officers each testified regarding their

actions on the night of the incident. In addition, Corporal Moran testified in

detail regarding the field sobriety tests he had conducted and Appellant’s poor

performance on each. See id. at 69-81.

       Villa testified that she did not see Appellant drink anything the night of

the incident. Id. at 43. Villa further testified that Appellant was not drunk

that night but that the police officer “told us to write about her drinking that

night, even though she didn’t drink that night[,] . . . because that’s what I

called for. I called saying that my mom had been drinking, even though she

wasn’t.” Id. at 30-32. The Commonwealth showed Ms. Villa a copy of her

statement and she agreed that it was inconsistent with her trial testimony.

Id. at 36.

       On February 8, 2017, the trial court found Appellant guilty of DUI. The

court did not order a presentence investigation report.2 On March 22, 2017,

the court sentenced her to sixty days’ to six months’ incarceration.

       After the denial of Post-Sentence Motions, Appellant timely appealed.

She filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained

of on appeal, and the trial court filed a responsive opinion.
____________________________________________


2Appellant’s counsel informed the court that Appellant had “waived a PSI.”
N.T. Sentencing Hr’g, 3/22/17, at 4.

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       Appellant raises the following five issues for our review:

          A. Whether the evidence presented at trial was insufficient
          to prove beyond a reasonable doubt that Appellant imbibed
          a sufficient amount of alcohol to render her incapable of
          safely driving, operating or being in actual control of the
          movement.

          B. Whether the verdict of guilty to Count 1 Driving Under
          the Influence is contrary to the weight of the evidence
          presented at trial where the Commonwealth failed to
          establish that Appellant had imbibed a sufficient amount of
          alcohol to render her incapable of safely driving, operating
          or being in actual physical control of the movement of a
          vehicle.

          C. Whether the trial court erred in admitting written
          statements as evidence and over objection by the Defense
          where the unfair prejudice substantially outweighed the
          probative value.

          D. Whether the trial court erred and abused its discretion by
          permitting the testimony of Appellant’s daughter and ex-
          husband insofar as their testimony was unrelated to the DUI
          charge and included hearsay and speculation.

          E. Whether the sentencing court abused its discretion by
          sentencing Appellant to 60 days (two months) to six months
          of incarceration, in the aggravated range, where the
          sentence was excessive, unreasonable and beyond the
          statutory requirements without sufficient reasons included
          on the record.

Appellant’s Brief at 5-6.3




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3 Appellant does not address the issues in the argument section of the brief in
the order in which they are presented.


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     Sufficiency of the Evidence

      Appellant contends the evidence was insufficient to sustain her

conviction for DUI. She avers that the facts “suggest” that she “did not imbibe

a sufficient amount of alcohol such that she was rendered incapable of safely

driving . . . .” Appellant’s Brief at 39.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

         The critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict.

                                    ***
         When reviewing the sufficiency of the evidence, an appellate
         court must determine whether the evidence, and all
         reasonable inferences deducible from that, viewed in the
         light most favorable to the Commonwealth as verdict
         winner, are sufficient to establish all of the elements of the
         offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007) (citations

and quotation marks omitted) (emphasis in original).

      Under Section 3802(a)(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.

75 Pa.C.S. § 3802(a)(1).



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       Appellant argues that because the results of the breathalyzer and blood

tests were not admitted into evidence at trial, the court impermissibly relied

solely on testimony offered at the time of trial to determine whether she was

rendered incapable of safe driving.4           Appellant’s Brief at 39. Appellant avers

that although she did admit to having some alcohol on the night in question,

it was imbibed several hours before the incident.              Id. at 40.    She “also

admitted to struggling with the field sobriety tests administered by Corp.

Moran . . . .” Id. She testified that “[r]ed, bleary eyes from crying could be

mistaken for glassy eyes . . . .” Id. at 41. Appellant claims that based upon

the evidence presented by her and her family, it was “equally reasonable” for

the court to believe that she was not driving under the influence of alcohol.

Id.

       Although Appellant purports to raise a sufficiency challenge, her

argument actually only impugns the manner in which the court weighed the

evidence to arrive at its verdict. As noted in Commonwealth v. DeJesus,

860 A.2d 102 (Pa. 2004):

          The weight of the evidence is exclusively for the finder of
          fact, which is free to believe all, part, or none of the
          evidence, and to assess the credibility of the witnesses.
          Questions concerning inconsistent testimony . . . go to the
          credibility of the witnesses. This Court cannot substitute its
          judgment for that of the [fact finder] on issues of credibility.

____________________________________________


4 We note that “the focus of subsection 3802(a)(1) remains on the inability of
the individual to drive safely due to consumption of alcohol─not on a particular
blood alcohol level.” Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.
2009).

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Id. at 107 (citations omitted).

       Appellant’s claim that it was equally reasonable for the fact finder to

believe she was not driving under the influence of alcohol challenges the

weight of the evidence. See id. As we cannot substitute our judgment for

that of the fact finder, this claim fails. See id.

       Weight of the Evidence

       Next, Appellant contends her conviction for DUI was against the weight

of the evidence. In her Post-Sentence Motion, Appellant “aver[ed] that the

verdicts are contrary to the weight of the evidence presented at trial.”

Post─Sentence Motions at 1. We conclude Appellant has waived this claim on

appeal.

       In Commonwealth v. Holmes, 461 A.2d 1268 (Pa. Super. 1983) (en

banc), this Court opined: “[A] post-verdict motion . . . that ‘the verdict was

against the weight of the evidence,’ will preserve no issue for appellate review

unless the motion goes on to specify . . . why the verdict was against the

weight of the evidence.” Id. at 1270 (emphasis in original).

       Appellant did not explain why the verdict was against the weight of the

evidence in her Post-Sentence Motion.            Therefore, we find the issue

challenging the weight of the evidence waived.5 See id.

____________________________________________


5 The fact that Appellant raised the issue in her Rule 1925(b) statement and
the trial court addressed it in the Rule 1925(a) opinion, “does not render the
claim reviewable.” Commonwealth v. Causay, 833 A.2d 165, 173 (Pa.
Super. 2003).


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       Admission of Evidence

       Appellant addresses contemporaneously her third and fourth issues in

which she claims that the trial court erred in admitting certain written

statements and permitting her daughter and ex-husband to testify regarding

matters that were unrelated to the DUI charge.6 Appellant claims the court

erred in overruling her objection and allowing her daughter to testify at trial

and permitting Villa’s inconsistent written statement to police to be admitted

into evidence because it was based on hearsay. Appellant’s Brief at 46.

       Our review is governed by the following principles:

          The “[a]dmission of evidence is within the sound discretion
          of the trial court and will be reversed only upon a showing
          that the trial court clearly abused its discretion.”
          Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.
          2015) (citation and quotation omitted). “[A]n abuse of
          discretion is not merely an error of judgment, but is rather
          the overriding or misapplication of the law, or the exercise
          of judgment that is manifestly unreasonable, or the result
          of bias, prejudice, ill-will[,] or partiality, as shown by the
          evidence or the record.” Commonwealth v. Cameron,
          780 A.2d 688, 692 (Pa. Super. 2001) (citation and quotation
          omitted).

Commonwealth v. Bullock, 170 A.3d A.3d 1109, 1117 (Pa. Super. 2017).



____________________________________________


6  Our rules provide that issues raised separately must be addressed
separately. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as
many parts as there are questions to be argued; and shall have at the head
of each part─in distinctive type or in type distinctively displayed─the particular
point treated therein, followed by such discussion and citation of authorities
as are deemed pertinent.”).



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      “It is long settled that a prior inconsistent statement may be used to

impeach a witness. Further, a prior inconsistent statement may be offered

not only to impeach a witness, but also as substantive evidence if it meets

additional requirements of reliability.” Commonwealth v. Watley, 153 A.3d

1034, 1040 (Pa. Super. 2016), appeal denied, 169 A.3d 574 (Pa. 2017)

(citations omitted).

      Pennsylvania Rule of Evidence 803.1 provides exceptions to the rule

against hearsay.

           The following statements are not excluded by the rule
           against hearsay if the declarant testifies and is subject to
           cross-examination about the prior statement:

           (1) A prior statement by a declarant-witness that is
           inconsistent with the declarant-witness's testimony and:

           (A) was given under oath subject to the penalty of perjury
           at a trial, hearing, or other proceeding, or in a deposition;

           (B) is a writing signed and adopted by the declarant; or

           (C) is a verbatim contemporaneous electronic recording of
           an oral statement.

Pa.R.Evid. 803.1. See also Daniel J. Anders, Ohlbaum on the Pennsylvania

Rules of Evidence §§ 803.1.01-803.1.09 (2017 ed. LexisNexis Matthew

Bender).

      Instantly, the trial court opined:

              When the court was notified that Ms. Villa may testify in
           a way that was inconsistent with her prior statement, it
           appointed Daniel Nevins, Esquire, to represent Ms. Villa and
           determine whether there was a potential Fifth Amendment
           issue. After consulting with Ms. Villa, Mr. Nevins informed

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         the court that despite the fact that Ms. Villa had a valid Fifth
         Amendment right to assert, she nevertheless wished to
         testify in order to recant her prior statement. Accordingly,
         her prior inconsistent statement to the police was admissible
         for impeachment purposes and also as substantive
         evidence.

Trial Ct. Op., 6/12/17, at 7 (citation omitted).

      In her written statement, Villa averred that Appellant “had been drinking

a lot causing her to be aggressive through the evening.” N.T. at 133. At trial,

she recanted the written statement she had given to the police on the night

of the incident. She testified that she had not seen Appellant drink anything

the night of the incident giving rise to the DUI. Id. at 43. Therefore, the

statement was admissible not only to impeach her, but also as substantive

evidence. See Watley, 153 A.3d at 1040.            We, thus, discern no abuse of

discretion in the trial court’s admission of the statement. See Bullock, ___

A.3d at ___, 2017 PA Super 284, at *3.

      Discretionary Aspect of Sentence

      Lastly, Appellant contends the sentencing court abused its discretion in

sentencing her to     a “manifestly excessive and clearly unreasonable

aggravated range sentence contrary to the fundamental norms underlying the

sentencing guidelines.”    Appellant’s Brief at 30.    Appellant claims that by

imposing a term of 2 to 6 months’ incarceration for this DUI conviction, her

second, the court “elected to impose an extreme sentence as punishment for

the bad, even illegal, acts of Appellant’s child and significant other [ex-

husband].” Id. at 32. She avers the court “elected to punish Appellant for

what the court viewed as a string of lies.” Id. at 34. Appellant argues the

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court failed to consider the factors set forth at 42 Pa.C.S. § 9721(b). Id. at

36.

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Phillips,

946 A.2d 103, 112 (Pa. Super. 2008). Prior to reviewing such a claim on its

merits:
            We conduct a four part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal; (2)
            whether the issue was properly preserved at sentencing
            or in a motion to reconsider and modify sentence; (3)
            whether appellant's brief has a fatal defect; and (4)
            whether there is a substantial question that the sentence
            appealed from is not appropriate under the Sentencing
            Code.

            When appealing the discretionary aspects of a sentence,
            an appellant must invoke the appellate court's
            jurisdiction by including in his brief a separate concise
            statement demonstrating that there is a substantial
            question as to the appropriateness of the sentence under
            the Sentencing Code . . . .

Id. (citations and quotation marks omitted).     See also Pa.R.A.P. 2119(f).

      Instantly, Appellant timely filed her appeal, preserved the issue of an

excessive sentence in her Post-Sentence Motion, and included a statement in

her Brief which conforms with Pa.R.A.P. 2119(f). See Appellant’s Brief at 24.

Accordingly, we ascertain whether Appellant has raised a substantial question.

See Phillips, 946 A.2d at 112.

      “A defendant presents a substantial question when he [or she] sets forth

a plausible argument that the sentence violates a provision of the sentencing



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code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citation

and quotation marks omitted.) “[A]rguments that the sentencing court failed

to consider the factors proffered in 42 Pa.C.S. § 9721 [do] present a

substantial question. . . .” Id. at 1272 n.8.

      Appellant sufficiently alleges that her sentence was excessive and the

court failed to give due consideration to the statutory factors in Section 9721.

Appellant’s Brief at 36-38.   We therefore find that Appellant has raised a

substantial question. See Dodge, 77 A.3d at 1272 n.8.

      Our review of the discretionary aspect of Appellant’s sentence is

governed by the following principles:

         Sentencing is a matter vested in the sound discretion of the
         sentencing judge, and a sentence will not be disturbed on
         appeal absent a manifest abuse of discretion. An abuse of
         discretion is more than just an error in judgment and, on
         appeal, the trial court will not be found to have abused its
         discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias, or ill-will.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation

omitted).

      “In every case in which the court imposes a sentence for a felony or

misdemeanor . . . the court shall make as a part of the record, and disclose in

open court at the time of sentencing, a statement of the reason or reasons for

the sentence imposed.” 42 Pa.C.S. § 9721(b).




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      At the time of sentencing, the Commonwealth informed the court that

this conviction was Appellant’s second conviction for DUI. N.T. Sentencing,

3/22/17, at 2. The conviction for DUI carried a minimum sentence of five

days and a maximum sentence of six months’ incarceration.          Id.   The

Commonwealth recommended a sentence in the aggravated range of two to

six months’ incarceration. Id. at 3. The Commonwealth argued that Appellant

had neither taken responsibility for her actions nor availed herself of

treatment. Id. at 4.

      Appellant’s counsel stated that Appellant was the caretaker of her two

children, ages fifteen and eighteen. Id. at 5. Her ex-husband, with whom

she lives, works long hours. Id. Appellant was a nurse for ten years and her

license was suspended because of her conviction. Id. Appellant is working

on her master’s degree in public administration. Id. Appellant has serious

medical conditions which were enumerated for the court’s consideration. Id.

The Commonwealth stated for the record that it would not object to a request

for delayed reporting for her sentence. Id. at 13-14.

      The trial court stated its reasons on the record for the sentence it

imposed. The court found that the only credible witnesses were the police

officers. Id. at 14. The court admonished Appellant for allowing her daughter

to take the stand with the knowledge that she would not testify one hundred

percent truthfully.    Id.   The court found that Appellant did not accept

responsibility for her actions or demonstrate any remorse.       Id. at 15.

Appellant did not seek treatment. Id. The court took into consideration “the

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prior record score, the offense gravity score, the sentencing guidelines,” and

the testimony of all the witnesses and comments of counsel in imposing its

sentence. Id.

      Appellant’s claim that the court failed to offer specific reasons for the

sentence pursuant to the Section 9721 factors is without merit.           After

examining the record as a whole, we find that the trial court’s sentence was

not manifestly excessive. We discern no abuse of discretion. See Bricker,

41 A.3d at 875. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2017




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