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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                            :
ERIC B. HITCHCOCK, JR.,                     :         No. 1329 MDA 2019
                                            :
                          Appellant         :


         Appeal from the Judgment of Sentence Entered July 24, 2019,
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No. CP-22-CR-0006445-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 6, 2020

        Eric B. Hitchcock, Jr., appeals from the judgment of sentence entered

on July 24, 2019, in the Court of Common Pleas of Dauphin County. Following

a bench trial on June 27, 2019, appellant was found guilty of driving under

the influence – general impairment, second offense.1           On July 24, 2019,

appellant was sentenced to six months’ intermediate punishment and fined

$300. We affirm.

        The trial court set forth the following:

              [O]n October 20, 2018, around 3:00 a.m.,
              Officer Rebecca Holstine observed [a]ppellant’s
              vehicle swerving in the lane of traffic. Officer Holstine
              observed the vehicle travel onto the fog line, travel
              back across the lane of travel, cross the double yellow
              line, and continue on the double yellow line for a
              couple of blocks. [] Appellant’s vehicle almost struck

1   75 Pa.C.S.A. § 3802(a)(1).
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            another vehicle while he was driving and he had to
            swerve at the last second.              At this point,
            Officer Holstine ran the vehicle’s tag and conducted a
            traffic stop.     As she approached the vehicle,
            [a]ppellant had a cell phone in his lap. Officer Holstine
            noticed a strong odor of an alcoholic beverage coming
            from the interior of the vehicle and [appellant] offered
            up that it was his boy that had been drinking.
            Officer Holstine testified that [appellant] kept on
            repeating himself, offered to call his friend (who had
            been drinking), and touched his license without
            handing it over. Once [a]ppellant was asked to exit
            his vehicle, he put chewing tobacco in his mouth and
            Officer Holstine could smell a faint odor of alcohol
            coming from [a]ppellant’s breath.

            After exiting the vehicle, Office[r] Holstine conducted
            two field sobriety tests. The first test conducted was
            the HGN (horizontal gaze nystagmus). During the
            walk-and-turn test, [a]ppellant could not maintain his
            balance and kept on talking over the officer. Appellant
            was stopped and made to start again but could not
            maintain his balance. Officer Holstine then stopped
            the testing. At this point [a]ppellant was patted down
            and a handgun was found in his pocket.
            Officer Holstine testified that [a]ppellant did not even
            know the handgun was there.              Appellant was
            transported to the booking center and was read the
            DL-26 form. At first, [appellant] said he would take
            the test[,] but when he entered the room with the
            phlebotomist, [a]ppellant started “freaking out” and
            did not want to give blood.              At this point,
            Officer Holstine considered it as a refusal. Finally,
            Officer Holstine identified the individual that she
            pulled over as [a]ppellant.

Trial court opinion, 10/1/19 at 2-3 (footnote and citations to record omitted).

      On July 16, 2019, appellant filed a “motion to treat [the] instant

conviction as [a] first offense for sentencing purposes.” The trial court denied

the motion. (Sentencing transcript, 7/24/19 at 6.) Following the imposition



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of sentence, no post-sentence motions were filed. Appellant filed a timely

appeal. Appellant was ordered to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The

trial court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            1.     Was the evidence presented at trial legally
                   insufficient to support the guilty verdict with
                   respect to the charge under 75 Pa.C.S.[A.]
                   § 3802(a)(1) as the Commonwealth’s evidence
                   failed to establish beyond a reasonable doubt
                   that [appellant] had imbibed a sufficient amount
                   of alcohol to render him incapable of safely
                   operating the movement of his vehicle?

            2.     Did the sentencing court err in denying
                   [appellant’s] motion to treat his DUI offense as
                   a first offense for sentencing purposes as
                   75 Pa.C.S.[A.] § 3806 is unconstitutional
                   pursuant to Apprendi v. New Jersey, 530 U.S.
                   466 (2000), and Alleyne v. United States,
                   133 S.Ct. 2151 (2013), and is not severable
                   from 75 Pa.C.S.[A.] § 3804 and 75 Pa.C.S.[A.]
                   § 3803?

Appellant’s brief at 4.

      Appellant first complains the Commonwealth failed to produce sufficient

evidence to support his conviction because it failed to establish, beyond a

reasonable doubt, that appellant had imbibed a sufficient amount of alcohol

to render him incapable of safely operating a motor vehicle.

            Our standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to the
            verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.


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            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      Appellant was found guilty of DUI under Section 3802(a) of the Motor

Vehicle Code, general impairment, which provides:

            (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.A. § 3802(a)(1).

      Subsection 3802(a)(1) requires the Commonwealth to prove the

following elements: “the accused was driving, operating, or in actual physical

control of the movement of a vehicle during the time when he or she was

rendered incapable of safely doing so due to the consumption of alcohol.”

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa.Super. 2013), appeal

denied, 79 A.3d 1098 (Pa. 2013).

      Here, Officer Holstine observed appellant’s vehicle swerving into the

oncoming lane of traffic, traveling onto the fog line, and crossing and riding

the double yellow line. (Notes of testimony, 6/27/19 at 6.) Appellant’s vehicle



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narrowly missed striking another vehicle.      (Id. at 7, 8.)   Officer Holstine

noticed the strong odor of an alcoholic beverage emanating from the vehicle.

(Id. at 9.)   When Officer Holstine asked appellant to produce his license,

registration, and proof of insurance, appellant shuffled through stacks of

papers and cards to find them. (Id. at 9, 10.) Upon appellant’s stepping out

of the vehicle, Officer Holstine detected the odor of alcohol on his breath,

despite appellant’s having put a wad of chewing tobacco into his mouth. (Id.

at 10.)   Although provided with two opportunities, appellant failed the

walk-and-turn field sobriety test. (Id. at 14, 15, 33, 34.)

      This court will not substitute our judgment for that of the trial court, as

fact-finder. Alford, supra. Viewing the evidence in the light most favorable

to the Commonwealth, as verdict winner, the evidence was clearly sufficient

to support the finding that appellant was under the influence of alcohol to a

degree rendering him incapable of safe driving under Section § 3802(a)(1).

Therefore, appellant’s sufficiency challenge fails.

      Appellant’s second contention is that his sentence is illegal, under

Alleyne v. United States, 570 U.S. 99 (2013), and its progeny, because it

was imposed pursuant to 75 Pa.C.S.A. § 3806.          (Appellant’s brief at 19.)

Alleyne held that because a mandatory minimum sentence increases the

penalty for a crime, any fact that increases the mandatory minimum is an

element that must be submitted to the jury. Alleyne, 570 U.S. at 103; see

also Commonwealth v. Barnes, 151 A.3d 121, 123 (Pa. 2016).



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        Appellant maintains that Section 3806 is unconstitutional because it

requires “the sentencing court to find facts which Alleyne and Apprendi

demand be submitted [to] and found by the jury beyond a reasonable doubt”2

and increases the mandatory minimum sentence for the charge of DUI based

upon the sentencing court’s calculation of the timeframe of his prior DUI

offenses. (Appellant’s brief at 7, 13, 14, 16, 18-20, 22, 23.)

        Here, appellant was sentenced to county intermediate punishment

(“CIP”) under 42 Pa.C.S.A. § 9721(a)(6).3       This court held that where a

defendant receives a CIP sentence pursuant to the Sentencing Code for a

second DUI, as opposed to a sentence under Chapter 38 of the Vehicle Code,

neither the minimum nor maximum provisions of the DUI statute apply and

the sentence is not illegal.    Commonwealth v. Popielarcheck, 151 A.3d

1088, 1093 (Pa.Super. 2016), affirmed, 190 A.3d 1137, 1138 (Pa. 2018).

               DUI offenders subject to a mandatory minimum
               sentence of imprisonment under Section 3804 of the
               Vehicle Code, which is referenced in Section 9763 of
               the Sentencing Code and the County Intermediate
               Punishment Act, are therefore eligible for CIP
               sentences, and the sentencing provisions of that
               section of the Vehicle Code do not apply when the
               sentencing court chooses to impose a CIP sentence.




2   Appellant’s brief at 9.

3We note Section 9721(a) was amended and Subsection (6), relating to CIP,
was deleted effective December 18, 2019. Appellant, however, was sentenced
prior to the effective date of the amendment.


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Commonwealth v. Kenney, 210 A.3d 1077, 1081 (Pa.Super. 2019), appeal

denied, 220 A.2d 1063 (Pa. 2019).

     Here, appellant was not sentenced under Section 3806 of the Vehicle

Code.4     Rather,   appellant   was    sentenced   to   CIP   pursuant    to

Section 9721(a)(6) of the Sentencing Code.     Thus, appellant’s sentence is

legal. See Popielarcheck, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/06/2020




4Even if appellant had been sentenced under Chapter 38 of the Motor Vehicle
Code, a panel of this court recently rejected a claim that Apprendi and
Alleyne mandate that where a defendant has a prior DUI conviction, which
has the effect of increasing the penalty for the instant offense, the prior
conviction must be submitted to a jury for determination before imposition of
sentence. “This claim ignores the essence of Apprendi that “[o]ther than
the fact of a prior conviction, any fact that increases the penalty for crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 49 (emphasis
added).” Commonwealth v. Bell, 2020 WL 119661 at *11 (Pa.Super. filed
March 10, 2020).


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