J-S83029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
ROBERT LEON KUCH                         :
                                         :
                   Appellant             :   No. 850 EDA 2017

            Appeal from the Judgment of Sentence March 7, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0000549-2016


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 13, 2018

      Appellant, Robert Leon Kuch, appeals from the judgment of sentence

entered on March 7, 2017. We affirm.

      The trial court ably summarized the underlying facts and procedural

posture of this case. As the trial court explained, viewing the evidence in

the light most favorable to the Commonwealth as the verdict winner, the

following facts were established during Appellant’s bench trial:

        [On August 24, 2015, at approximately 6:46 p.m.,
        Appellant] was seen turning right onto the roadway, driving
        over the curb as he turned. When attempting to turn left,
        [Appellant] cut his turn short and nearly struck another
        vehicle. [Appellant’s] vehicle thereafter struck a guardrail
        where two [] pedestrians were walking. If the guardrail
        [were] not there, the pedestrians would have been hit.
        Appellant struck the guardrail several more times after that,
        and only stopped when his vehicle became disabled. He
        then exited his car, which was blocking traffic, and he
        attempted to get into another vehicle. He did not know the
        other driver, but he asked him to drive him home. The
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         other driver was already on the phone with the police.
         When the police arrived, they made contact with
         [Appellant]. He was swaying, stumbling and lurching, and
         he had to be assisted so that he did not fall over. His eyes
         kept closing and his speech was slurred. The police officer
         could smell alcohol coming from his breath. He was asked
         to perform field sobriety tests, which he failed. He had to
         be assisted by the officers to keep from falling. He was so
         intoxicated, [he] did not recall hitting anything with his car.

                                           ...

         Following a non-jury trial on August 25, 2016, [Appellant]
         was found guilty of one [] count of driving under the
         influence of alcohol (75 Pa.C.S.A. § 3802(a)(1) (hereinafter
         “DUI”). He was also found to have been involved in an
         accident resulting in damage to a vehicle or other property
         pursuant to 75 Pa.C.S.A. § 3803(b)(1). . . . This was
         [Appellant’s] eighth conviction for DUI. Sentencing was
         deferred several times, but on March 7, 2017, [Appellant]
         was sentenced to [serve three to six months in jail].

Trial Court Opinion, 9/13/17, at 1 and 6 (some internal capitalization

omitted).

       Appellant filed a timely notice of appeal from his judgment of

sentence. He now raises four claims to this Court:1

         [1.] Was Appellant deprived of his right to a fair trial before
         an impartial fact-finder where the [trial] court failed to
         colloquy Appellant to ensure that he understood that he had
         the right to request a recusal where the trial court knew
         both that Appellant had previously pled guilty to the
____________________________________________


1 The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).      Appellant complied and, within his Rule 1925(b)
statement, Appellant raised the same claims that he currently lists on
appeal.




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          charged offenses and that Appellant had an extensive
          criminal record for DUI-related offenses?

          [2.] Was trial counsel ineffective for failing to request that
          the trial court recuse itself in light of the fact that the court
          knew that Appellant had previously pled guilty to the
          charged offense and was also aware that Appellant had an
          extensive criminal record for DUI-related offenses?

          [3.] Was the evidence sufficient to support a finding that
          Appellant had been involved in an accident within the
          meaning of 75 Pa.C.S.A. § 3803(b)(1) where Appellant’s
          vehicle did not strike any other person or vehicle?

          [4.] Even if the evidence supported a finding that Appellant
          was involved in an accident, was the evidence sufficient to
          show that the accident resulted in damage to a vehicle or
          other property as required by 75 Pa.C.S.A. § 3803(b)(1)?

Appellant’s Brief at 5 (some internal capitalization and emphasis omitted).2

        Appellant first claims that he was denied his right to a fair trial

because the trial court “failed to colloquy Appellant to ensure that he

understood that he had the right to request a recusal” of the trial court

judge.3 Id. This claim fails.
____________________________________________


2   For ease of discussion, we have re-numbered Appellant’s claims on appeal.

3 Within the argument section of Appellant’s brief, Appellant also claims that
the trial court judge erred when he did not voluntarily recuse himself as the
judge in Appellant’s case. See Appellant’s Brief at 11. Appellant did not
raise this particular claim in his Rule 1925(b) statement and the claim is not
“fairly suggested” by Appellant’s Pennsylvania Rule of Appellate Procedure
2116(a) statement of questions involved on appeal. Therefore, Appellant
has waived this particular claim on appeal. See Pa.R.A.P. 1925(b)(4)(vii)
(“[i]ssues not included in the [Rule 1925(b)] Statement . . . are waived”);
Pa.R.A.P. 2116(a) (“[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”).




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      As Appellant notes:

           On June 3, 2016, [Appellant] appeared before the
           Honorable Patrick C. Carmody of the Chester County Court
           of Common Pleas and pled guilty to violating 75 Pa.C.S.A.
           § 3802(b), [DUI] (high rate of alcohol). At that time, Judge
           Carmody learned that [Appellant] had a [blood alcohol
           content] over the legal limit as the facts were incorporated
           into the record. Appellant subsequently withdrew his plea
           after the United States Supreme Court [issued] Birchfield
           v. North Dakota, 136 S.Ct. 2160 (2016).

Appellant’s Brief at 10 (some internal capitalization omitted).

      After the trial court permitted Appellant to withdraw his guilty plea,

Appellant proceeded to a bench trial before Judge Carmody.                At the

beginning of the trial, Judge Carmody specifically asked whether Appellant

would like him to recuse – and Appellant said no. The exchange occurred as

follows:

           [Trial Court]:   Procedurally, if I can remember, this is
           [Appellant’s case]. . . . Couple things happened in this
           case.

           You had a guilty plea. It was withdrawn because of I guess
           the Birchfield decision, and I can disregard that. Your
           attorney filed a sentencing memorandum on the case, which
           I read briefly. You have those different matters, plus the
           fact that I didn’t – I haven’t heard the evidence. I’ll be a
           blank slate, but I did previously read something about
           vanilla extract and made a comment to [your attorney] that
           didn’t seem to be much of a defense in a DUI.

           Do you have a problem [with] me sitting over this nonjury
           case, or do you have any problem [with] me being on the
           bench? Why don’t you talk to [your attorney]?

           [Appellant]: Yes, no problem.

N.T. Trial, 8/25/16, at 3-4.

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         Appellant claims that the trial court “failed to colloquy Appellant to

ensure that he understood that he had the right to request a recusal” of the

trial court judge. At the outset, Appellant has cited no law – and we have

found none – that requires a trial court to colloquy a defendant “to ensure

that he underst[ands] that he [has a] right to request a recusal” of the trial

court judge.      See Appellant’s Brief at 10-16.     Therefore, Appellant’s first

claim on appeal immediately fails.

         Further, and alternatively, Appellant simply cannot claim that he was

not adequately colloquied on his right to have the trial court judge recuse

himself, when the judge specifically told Appellant that he heard Appellant’s

prior guilty plea and then asked whether Appellant wished for him to recuse.

Appellant’s claim to the contrary finds no support in the record and thus

fails.

         Next, Appellant claims that his trial counsel was ineffective for failing

to request that the trial court judge recuse himself from the case.

Appellant’s Brief at 5. We may not consider the merits of Appellant’s claim.

         Our Supreme Court has explained that, except in very limited

circumstances, “claims of ineffective assistance of counsel are to be deferred

to [post-conviction collateral] review; trial courts should not entertain claims

of ineffectiveness upon post-[sentence] motions; and such claims should not

be reviewed upon direct appeal.”         Commonwealth v. Holmes, 79 A.3d

562, 576 (Pa. 2013). One limited circumstance in which ineffectiveness

claims can be reviewed on direct appeal is when a defendant is serving a

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sentence so short that he or she would likely be ineligible for relief under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. See id. at

578. For this exception to apply, however, the trial court must determine

that unitary review is appropriate when ruling on the defendant's post-

sentence motion. See id. In this case, Appellant did not file a post-sentence

motion and the trial court never determined that unitary review was

appropriate in this case. Moreover, Appellant did not execute a document

waiving his right to seek PCRA relief and did not engage in an on-the-record

waiver colloquy as required by Holmes. See id. at 580. As such, we may

not consider the merits of Appellant's ineffectiveness claim.

      For Appellant’s final two claims on appeal, Appellant contends that the

evidence was insufficient to support his conviction under 75 Pa.C.S.A.

§ 3803(b)(1) (regarding a DUI “where there was an accident resulting in . . .

damage to a vehicle or other property”).          Appellant’s Brief at 17-23.

Specifically, Appellant claims, there is insufficient evidence to establish that

there was an “accident” or that there was “damage to a vehicle or other

property.”   Id.   We will consider Appellant’s claims together; the claims,

however, fail.

      With respect to any sufficiency of the evidence claim:

        The standard we apply in 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


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        and substitute our judgment for [that of] 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 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.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc) (internal quotations and citations omitted).

      Appellant was convicted of violating 75 Pa.C.S.A. § 3803(b)(1), which

concerns a DUI “where there was an accident resulting in . . . damage to a

vehicle or other property.” Section 3803(b)(1) declares:

        An individual who violates section 3802(a)(1) [(DUI
        (general impairment))] where there was an accident
        resulting in bodily injury, serious bodily injury or death of
        any person or in damage to a vehicle or other property, . . .
        commits a misdemeanor for which the individual may be
        sentenced to a term of imprisonment of not more than six
        months and to pay a fine under section 3804.

75 Pa.C.S.A. § 3803(b)(1).

      Appellant claims that the evidence was insufficient to support his

Section 3803(b)(1) conviction. In particular, Appellant claims, there was no

evidence to support the conclusion that he was involved in “an accident

resulting in . . . damage to a vehicle or other property” because his actions


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“resulted in no damage to the curb or guardrail.”4 Appellant’s Brief at 20.

The claims fail.

       Pennsylvania’s Motor Vehicle Code does not define the term “accident.”

See 75 Pa.C.S.A. §§ 102 and 3801.              Nevertheless, as our Supreme Court

has held:      “[g]enerally, an accident is an ‘unintended . . . injurious

occurrence.’     BLACK'S LAW DICTIONARY 15 (8th ed. 2004).           In the relevant

realm of vehicle law, the breadth of the term encompasses any untoward

and    unintended      contact    between      a   vehicle   and   something   else.”

Commonwealth v. Wisneski, 29 A.3d 1150, 1153 (Pa. 2011). The Vehicle

Code does, however, define the term “vehicle.” In relevant part, the term

“vehicle” means:        “[e]very device in, upon or by which any person or

property is or may be transported or drawn upon a highway, except devices

used exclusively upon rails or tracks.” 75 Pa.C.S.A. § 102.

       In the case at bar, Appellant was clearly involved in an “accident

resulting in . . . damage to a vehicle.” 75 Pa.C.S.A. § 3803(b)(1). Indeed,

the evidence establishes that, while intoxicated, Appellant drove so

erratically that multiple witnesses reported him to the police.           N.T. Trial,

8/25/16, at 13, 20-21, 52-53, 79-80, and 107-108. Further, the evidence

establishes that Appellant almost struck one vehicle, swerved, and then

____________________________________________


4 Appellant does not claim that the evidence was insufficient to support the
conclusion that he violated 75 Pa.C.S.A. § 3802(a)(1) (DUI-general
impairment).




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drove his vehicle up onto the sidewalk and down onto the road four separate

times – striking the guardrail at least twice – until he damaged the

suspension and axle of his vehicle so severely that his vehicle became

disabled and inoperable.   Id. at 25, 69, 91-92, 95, 108, and 110.

      Therefore, and plainly, there was sufficient evidence to establish “an

accident resulting in . . . damage to a vehicle” because the evidence

establishes that there was:      “unintended contact between [Appellant’s]

vehicle and something else” (here, it was the curb and guardrail), which

“result[ed] in . . . damage to a vehicle” (here, it was Appellant’s own

vehicle).   75 Pa.C.S.A. § 3803(b)(1); Wisneski, 29 A.3d at 1153; 75

Pa.C.S.A. § 102. As such, Appellant’s sufficiency of the evidence claims fail.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:2/13/18




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