J-A01040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                 Appellee                  :
                                           :
                v.                         :
                                           :
ETHAN DANIEL MAIHLE,                       :
                                           :
                 Appellant                 :   No. 1040 WDA 2016

          Appeal from the Judgment of Sentence June 28, 2016
             in the Court of Common Pleas of Armstrong County
             Criminal Division at No(s): CP-03-CR-0000694-2015

BEFORE:     BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 19, 2017

      Ethan Daniel Maihle (Appellant) appeals from the judgment of

sentence imposed on June 28, 2016, following his convictions for driving

under the influence of alcohol or a controlled substance (DUI)—general

impairment, DUI—high rate of alcohol, and one violation of the motor vehicle

code governing general lighting requirements—headlamps, 75 Pa.C.S. §

4303 (section 4303). We affirm.

      The charges in this matter stem from an incident that occurred at

approximately 8:40 in the evening of May 14, 2015.         Chief Thomas S.

Schwab of the City of Parker Police Department observed a pickup truck,

later determined to be driven by Appellant, swerving within its lane before

pulling into a parking lot.   Chief Schwab further observed that the truck’s

headlights were not illuminated, although the fog lights and daytime running



*Retired Senior Judge assigned to the Superior Court.
J-A01040-17


lights were turned on. After he was pulled over, Appellant submitted to field

sobriety tests and, ultimately, was placed under arrest for DUI, and the

summary offenses of careless driving and violating section 4303.       A blood

test later showed that Appellant’s blood alcohol concentration (BAC) was

0.137%.

      On December 7, 2015, Appellant filed an omnibus pretrial motion to

suppress, raising a single suppression issue: the charges against him should

be dismissed because a constable involved in his arrest “did not have the

authority to enforce motor vehicle laws.” Appellant’s Omnibus Pretrial Motion

to Suppress, 12/7/2015, at 1 (unnumbered).        The motion also included a

petition for writ of habeas corpus. Appellant’s argument as to that portion of

the motion, in its entirety, is as follows. “It is believed and averred that the

testimony provided by [the arresting officers] did not meet the standard

required (prima facie case) at the Preliminary Hearing and cannot be

sufficient therefore.” Id. at 2 (unnumbered).

      A hearing was held and, by order dated February 19, 2016, the trial

court determined that the Commonwealth had not met its burden of proof

with respect to the summary offense of careless driving and dismissed that

charge. However, the court denied Appellant’s motion in all other respects.

In denying Appellant’s petition for writ of habeas corpus with respect to

section 4303, the trial court took judicial notice, sua sponte, of the time of

sunset on the night at issue. Trial Court Opinion, 2/19/2016, at 5 n.1.



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      On May 2, 2016, this matter proceeded to a non-jury trial as to the

remaining three charges. During trial, the Commonwealth presented in its

case-in-chief a document from the U.S. Naval Observatory’s Astronomical

Applications Department which stated that sunset in Parker on May 14,

2015, occurred at 8:29 p.m. N.T., 5/2/2016, at 12. The trial court admitted

this evidence over Appellant’s objection. Id.

      On May 3, 2016, the trial court found Appellant guilty of two counts of

DUI and one violation of section 4303.      On June 28, 2016, Appellant was

sentenced. The trial court determined that the two DUI convictions merged

and imposed a term of incarceration of not less than 45 days nor more than

6 months at the greater charge, DUI—high rate of alcohol.            The court

imposed a fine, costs and fees for the section 4303 violation. Appellant did

not file post-sentence motions, but timely filed a notice of appeal. Both

Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

      Appellant raises three issues for this Court’s review, which we have

reordered for ease of disposition.

      I. Whether the honorable trial court erred in failing to grant
      Appellant’s omnibus pretrial motion in the nature of a motion to
      dismiss or writ of habeas corpus?

      II. Whether the [trial] court erred in taking judicial notice of the
      time of sunset in Parker, Pennsylvania on the date of the alleged
      offense Thursday, May 14, 2015?

      III. Whether [section] 4303(a) is unconstitutionally vague?




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J-A01040-17


Appellant’s Brief at 4 (suggested answers and unnecessary capitalization

omitted).1

      Appellant first contends that the trial court erred in denying his pretrial

motion for writ of habeas corpus. It is well-established that an accused may

challenge the sufficiency of the Commonwealth’s evidence at the pretrial

stage through a petition for a writ of habeas corpus. Commonwealth v.

Hetherington, 331 A.2d 205 (Pa. 1975). However, the failure to establish a

prima facie case at a hearing on a petition for writ of habeas corpus is

immaterial when, at trial, the Commonwealth satisfies its burden by proving

the offense beyond a reasonable doubt. Commonwealth v. Ricker, 120

A.3d 349, 353 (Pa. Super. 2015) (citation omitted) (holding that “errors at a

preliminary hearing regarding the sufficiency of the evidence are considered

harmless     if   the   defendant   is   found   guilty   at   trial”);   see   also

Commonwealth v. Troop, 571 A.2d 1084 (Pa. Super. 1990) (noting that

once a defendant has been convicted at trial, any defect in the preliminary

hearing has been satisfied).

      Here, Appellant proceeded to trial where the Commonwealth presented

evidence and the trial court, sitting as factfinder, determined that the

evidence was sufficient to convict him of all charges. Accordingly, Appellant

is not, at this juncture, entitled to relief on his challenge to the


1
  The issues included in Appellant’s statement of questions involved are
identical to those raised in his Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.


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J-A01040-17


Commonwealth’s establishment of a prima facie case at the hearing on

Appellant’s petition for writ of habeas corpus. Thus, we find Appellant’s first

issue to be moot.

      In his second issue, Appellant argues that the trial court erred in

taking judicial notice of the time of sunset on the date of the alleged offense.

Appellant’s Brief at 22-27. Specifically, Appellant contends that, absent the

trial court’s decision to sua sponte take judicial notice of this fact, the

Commonwealth was unable to make a prima facie case that section 4303

had been violated, rendering illegal the vehicle stop and Appellant’s

subsequent arrest. Id.

      Based on our review of the record, the court took judicial notice only in

the opinion issued following the hearing on Appellant’s petition for writ of

habeas corpus.      Trial Court Opinion, 2/19/2016, at 5 n.1.      At trial, the

Commonwealth submitted, and the trial court accepted as evidence,

information regarding the time of sunset.     Although Appellant objected to

the admission of this evidence, he does not challenge on appeal any errors

that occurred at trial, focusing instead on the court’s earlier decision to take

judicial notice sua sponte. As previously explained, any defect that occurred

at the time of the omnibus pretrial hearing on Appellant’s motion for a writ

of habeas corpus was cured at trial. Accordingly, Appellant is not entitled to

relief on this issue.




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        The final issue listed in Appellant’s statement of questions involved is

whether section 43032 is unconstitutionally vague. Appellant’s Brief at 4.

However, in Appellant’s lengthy argument on this point, he actually assails

the constitutionality of the language of 75 Pa.C.S. § 4302(a)(1) (section

4302), which governs periods for requiring lighted lamps on motor vehicles.3

Id. at 7-21. In so doing, Appellant contends that he was charged under the

wrong statute and asks this Court to vacate his judgment of sentence on this

basis. Id. at 19-20. Because Appellant makes no discernible argument as

to the constitutionality of section 4303, we find this claim waived as

underdeveloped. Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super.

2
    The relevant portion of section 4303 states

        (a) Head lamps.--Every vehicle, except trailers, operated on a
        highway shall be equipped with a head lamp system in
        conformance with regulations of the department. The regulations
        shall not prohibit a bus from being equipped with devices used to
        carry pedalcycles on the front of the bus.

75 Pa.C.S. § 4303(a).

3
    The relevant portion of section 4302 states

        (a) General rule.--The operator of a vehicle upon a highway
        shall display the lighted head lamps and other lamps and
        illuminating devices required under this chapter for different
        classes of vehicles, subject to exceptions with respect to parked
        vehicles, at the following times:

              (1) Between sunset and sunrise.

75 Pa.C.S. § 4302(a).




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J-A01040-17


2009) (“It is Appellant’s obligation to sufficiently develop arguments in his

brief by applying the relevant law to the facts of the case, persuade this

Court that there were errors below, and convince us relief is due because of

those errors. If an appellant does not do so, we may find the argument

waived.”).4

      Further, because Appellant has failed to preserve in the trial court any

challenge to the constitutionality or applicability of section 4302, or his

contention that he was charged under the wrong statute, and instead raises

those issues for the first time on appeal, we find those claims waived as

well. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).

      Judgment of sentence affirmed.




4
  We note that, even if Appellant had properly preserved this issue, he would
not prevail on appeal. The plain language of section 4303 places persons on
notice that, with limited exception, all vehicles operated on a highway shall
be equipped with a headlamp system. This language is not “so vague that
[persons] of common intelligence must necessarily guess at its meaning and
differ as to its application.” Commonwealth v. Mayfield, 832 A.2d 418,
423 (Pa. 2003).


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J-A01040-17




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/19/2017




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