J-S71028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHEN HUNT WILLEMAIN

                            Appellant                  No. 845 MDA 2014


             Appeal from the Judgment of Sentence April 17, 2014
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0001018-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                         FILED FEBRUARY 17, 2015

        Appellant, Stephen Hunt Willemain, appeals from the judgment of

sentence entered on April 17, 2014, by the Honorable Thomas R. Campbell,

Court of Common Pleas of Adams County. After careful review, we affirm.

        The trial court convicted Willemain for driving under the influence of

alcohol, general impairment (“DUI”), driving on roadways laned for traffic,

and careless driving, following a non-jury trial that occurred on February 27,

2014.     The trial court subsequently sentenced Willemain to an aggregate

term of imprisonment of 72 hours to six months.                This timely appeal

followed.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Testimony at trial established that two officers from the Pentagon

Force Protection Agency1 (“PFPA”) observed a vehicle, driven by Willemain,

driving in an erratic fashion at approximately 2 a.m. The officers followed

Willemain as he continued to drive erratically, and ultimately pulled in

behind Willemain’s vehicle after he had stopped with the rear of his vehicle

still in the lane of travel.         At some point, the officers contacted the

Pennsylvania State Police, and Trooper Michael Myers was dispatched to the

scene.

       When Trooper Myers arrived, he observed Willemain leaning on his

vehicle.   Trooper Myers noticed an odor of alcoholic beverages, and that

Willemain had glassy, bloodshot eyes. Upon questioning Willemain, Trooper

Myers observed that Willemain’s speech was slurred and that he was

disoriented and confused.         Based upon these observations, Trooper Myers

formed the opinion that Willemain was under the influence of alcohol to the

extent that he was incapable of safe operation of a motor vehicle.

       Willemain refused to perform a field sobriety test for Trooper Myers,

and Trooper Myers took Willemain into custody. Trooper Myers transported

Willemain to a local hospital to have a blood sample taken. Trooper Myers

read the DL 26 form to Willemain, who remained silent when asked to
____________________________________________


1
  “PFPA is a civilian Defense Agency within the Department of Defense charged with
protecting and safeguarding the occupants, visitors, and infrastructure of the Pentagon,
Mark Center, Defense Health Headquarters and other delegated Pentagon facilities.”
http://www.pfpa.mil/ (visited January 14, 2015).



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consent to the blood test. After asking for affirmative consent several more

times to no avail, Trooper Myers transported Willemain to the state police

barracks for processing.

      Willemain waived his preliminary hearing, and was formally arraigned

on November 14, 2013. On January 2, 2014, Willemain’s counsel requested

leave to withdraw his appearance.     Willemain indicated that he was not

opposed, and the trial court granted counsel’s request to withdraw.

      On the date of trial, Willemain appeared pro se and indicated that he

was not ready to proceed to trial. The trial court refused his request for a

continuance.

      On appeal, Willemain raises two issues for our review:

      1.    Whether appellant was denied due process of law,
      specifically the right to counsel afforded him by the Sixth
      Amendment of the United States Constitution and Article 1,
      Section 9 of the Pennsylvania Constitution, when his request for
      a continuance in order to secure the services of an attorney was
      denied?

      …

      2.   Whether the Commonwealth proved the necessary
      elements of driving under the influence beyond a reasonable
      doubt at trial?

Appellant’s Brief, at 7.

      In his first issue on appeal, Willemain contends that the trial court

denied him his right to counsel by refusing to continue the trial on February

27, 2014.    The trial court found that Willemain had forfeited his right to

counsel by acquiescing to his initial counsel’s withdrawal and his failure to

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procure representation during the period from January 2, 2014 to February

27, 2014.

      An indigent defendant may forfeit his right to appointed counsel

through dilatory or improper behavior. See Commonwealth v. Lucarelli,

971 A.2d 1173, 1179 (Pa. 2009). After a defendant has been found to have

forfeited his right to appointed counsel, the decision to appoint new counsel

is reserved to the discretion of the trial court.        See Commonwealth v.

Kelly, 5 A.3d 370, 382 n. 10 (Pa.Super. 2010). “If the defendant does not

agree with his counsel, he has a right to present his own contentions; but

the sovereign has no duty to search for counsel until it finds one who will

agree with him.”    Id., at 381 (citation omitted).       “[W]here a defendant's

course   of   conduct   demonstrates    his   or   her   intention   not   to   seek

representation by private counsel, despite having the opportunity and

financial wherewithal to do so, a determination that the defendant be

required to proceed pro se is mandated because that defendant has forfeited

the right to counsel.” Lucarelli, 971 A.2d at 1179.

      In the instant case, the trial court found that Willemain consented to

the withdrawal of his attorney on January 2, 2014. Willemain asserted that

due to weather and court administration, he didn’t know of the trial date

until several days before it was scheduled. See N.T., Trial, 2/27/14, at 4.

Furthermore, Willemain stated that he had asked an attorney to represent

him, but that the attorney was not available on the date of trial. See id.


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        We agree with the trial court that the excuses proffered by Willemain

were insufficient to demonstrate that Willemain had made a good faith effort

to retain private counsel in the nearly two months between the withdrawal of

prior counsel and the date of trial. The fact that the trial date was not set

until   February    10      does   not    excuse   Willemain’s   failure   to   pursue

representation during the intervening weeks. Furthermore, if Willemain had

retained private counsel, and such counsel was unavailable on the date of

trial, it was incumbent upon counsel to enter his appearance and file for a

continuance. Under these circumstances, we cannot conclude that the trial

court’s failure to grant a continuance constituted an error of law or an abuse

of discretion.

        In   his   second    issue   on    appeal,   Willemain    argues    that   the

Commonwealth failed to present evidence sufficient to sustain his conviction

for DUI. We review a challenge to the sufficiency of the evidence as follows.

        The standard we apply when reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there is sufficient
        evidence to enable the fact-finder to find every element of the
        crime beyond a reasonable doubt. In applying the above test, we
        may not weigh the evidence and substitute our judgment for the
        fact-finder. In addition, we note that the facts and circumstances
        established by the Commonwealth need not preclude every
        possibility of innocence. Any doubts regarding a defendant’s guilt
        may be resolved by the fact-finder 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. The
        Commonwealth may sustain its burden of proving every element
        of the crime beyond a reasonable doubt by means of wholly
        circumstantial evidence. Moreover, in applying the above test,
        the entire record must be evaluated and all evidence actually

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      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced is free to believe all, part or none of the
      evidence. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Willemain argues that even if the PFPA officers’ testimony is believed,

his “driving was not sufficiently erratic as to demonstrate that he was

incapable of driving safely.” Appellant’s Brief, at 25. He asserts that if his

driving was that erratic, the officers would have pulled him over themselves,

and not waited for the Pennsylvania State Police to arrive. See id.

      Sergeant Gerald Haskell of the PFPA testified that Willemain’s vehicle

crossed the center line of the roadway at least six times.    See N.T., Trial,

2/27/14, at 9-11.     At one point, Willemain almost struck a vehicle in the

oncoming lane of traffic. See id., at 9-10.

      Trooper Michael Myers testified that he observed that Willemain had

bloodshot, glassy eyes and was leaning on his vehicle to support himself.

See id., at 87-88.    Trooper Myers detected a strong odor of alcohol from

Willemain. See id., at 88. Willemain’s speech was slurred, and he seemed

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confused and disoriented. See id. While escorting Willemain to his patrol

vehicle, Trooper Myers had to support Willemain to keep him from falling.

See id., at 89.   Based upon his experience and training, Trooper Myers

opined that Willemain was under the influence of alcohol to a degree that he

was not capable of operating a vehicle safely.     See id., at 90.   Finally,

Trooper Myers testified that Willemain refused to consent to having a blood

sample taken. See id., at 91-94.

     Taking all inferences and credibility determinations in favor of the

Commonwealth, as our standard of review requires, we conclude that this

evidence was more than sufficient to sustain the conviction for DUI.

Willemain’s argument that his driving was not so erratic as to constitute DUI

is beside the point.    Trooper Myers’s observations and expert opinion

provided sufficient evidence for the conviction. Furthermore, the failure of

the PFPA officers to effectuate a traffic stop does not provide any relief to

Willemain, as there is no evidence that they were empowered to effectuate

such a traffic stop. Even in the face of such evidence, Willemain’s argument

would go the credibility of their testimony, and therefore is not cognizable

under a challenge to the sufficiency of the evidence. Thus, we conclude that

neither of Willemain’s arguments on appeal merit relief.




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     Judgment of sentence affirmed. Jurisdiction relinquished.

     President Judge Emeritus Ford-Elliott joins in the memorandum.

     Justice Fitzgerald notes his dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




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