J. A33006/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
NEIL K. ANAND,                           :           No. 665 EDA 2015
                                         :
                        Appellant        :


         Appeal from the Judgment of Sentence, February 6, 2015,
              in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0006423-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 23, 2016

      Neil K. Anand appeals from the judgment of sentence of February 6,

2015, following his conviction of driving under the influence (“DUI”) --

general impairment and related summary traffic offenses. We affirm.

      The trial court, sitting as finder-of-fact in this non-jury trial, made the

following factual findings:

                  On July 30, 2014, the evening hours, the
            trooper [(Trooper John McIlhinney)] was on routine
            patrol and noticed a vehicle operated by the
            defendant, Neil Anand.     The Anand vehicle was
            repeatedly passing over the fog line on the right side
            of I-95.

                  The officer fell in behind the vehicle, which
            continued to weave back and forth and was being
            operated at a speed that was less than 50 percent of
            the -- well, about a little more than -- a little more




* Retired Senior Judge assigned to the Superior Court.
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           than 50 percent of the speed limit.[1] The vehicle
           being operated at that speed caused a vehicle behind
           that, the defendant’s vehicle, to apply his brakes to
           avoid a collision.

                 The officer had plenty of -- of suspicion, which
           ripened into reasonable cause [sic] and, finally,
           probable cause before the stop was made.

                  The trooper upon approaching the defendant
           was able to detect an odor of alcohol. He had an
           adequate -- more than adequate basis for subjecting
           the defendant to field sobriety testing. He applied
           the heel to toe, the one-legged stand test. And his
           general observations of the defendant based on his
           many years of experience and his participation in
           approximately 500 DUI arrests over the years was
           sufficient to satisfy the standard for appropriate
           arrest of the defendant for DUI.

                 The defendant was requested to submit to a
           blood test at the scene or at a point thereafter, and
           the defendant originally agreed and, therefore, the
           trooper transported the defendant to the appropriate
           hospital facility where the test would be conducted.

                 The defendant then failed to submit to the test
           after having been adequately presented with the
           DL-26, was read to him and he was given full
           opportunity to read it. The defendant refused to
           submit to the test by his failure to give an
           unqualified and unconditional consent.              The
           defendant was given another opportunity to take the
           test after he had refused inside of the facility and the
           defendant again refused to give an unqualified,
           unconditional assent.

Notes of testimony, 2/6/15 at 171-173.



1
  Trooper McIlhinney testified that appellant was going as slow as 23 mph in
a 55 mph zone at one point; later, he sped up to 35 mph. (Notes of
testimony, 2/6/15 at 10-11, 30-31.)


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      Appellant was found guilty of one count each of DUI -- general

impairment/incapable of safe driving, driving too slow for conditions,

disregarding traffic lanes, and careless driving.2   Appellant was found not

guilty of Count 2, impersonating a public servant.3 Appellant was sentenced

to 72 hours to 6 months’ incarceration and a $5,000 fine. No post-sentence

motions were filed; however, this timely appeal was filed on March 4, 2015.

Supersedeas was granted on March 6, 2015, staying execution of appellant’s

sentence until further order of court.     Appellant complied with Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

      Appellant has raised the following issues for this court’s review:

            A.    Whether Appellant was improperly          denied
                  admission into the ARD Program[?]

            B.    Whether the verdict was against the weight of
                  the evidence[?]

            C.    Whether the Trial Judge improperly allowed
                  reference to the Portable Breath Test (PBT) by
                  the Commonwealth[?]


2
   75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3364(a), 75 Pa.C.S.A.
§ 3309(1), and 75 Pa.C.S.A. § 3714(a), respectively.
3
  18 Pa.C.S.A. § 4912. It was alleged that when he was pulled over,
appellant displayed a New York State PBA (Police Benevolent Association)
surgeon badge and identified himself as a state trooper or “state trooper
police surgeon.”     (Notes of testimony, 2/6/15 at 13, 24, 26, 33;
Commonwealth Exhibit C-1.) Appellant testified that he was, in fact, a state
trooper police surgeon as well as a cardiothoracic anesthesiologist. (Id. at
79, 81.) The trial court found that the Commonwealth failed to prove all the
elements of Count 2, impersonating a public servant, including that
appellant made a false representation, i.e., that he was not, in fact, a police
surgeon. (Id. at 174-175.)


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Appellant’s brief at 3.

         In his first issue on appeal, appellant claims that he was unfairly

denied entry into the ARD (Accelerated Rehabilitative Disposition) program

because of the charge of impersonating a public servant. (Appellant’s brief

at 8.)    According to appellant, the Bucks County District Attorney’s Office

has a policy of not allowing defendants to participate in ARD unless they

waive their right to a preliminary hearing.               (Id.)   However, as the

Commonwealth observes, there is nothing in the record to indicate that

appellant applied for, and was denied, admission into the ARD program.

(Commonwealth’s brief at 12.)             Appellant did not raise the issue in his

omnibus pre-trial motion. (Docket #12.) Appellant fails to indicate where in

the record this matter was preserved in the court below. As such, it is being

raised for the first time on appeal and is deemed waived. Commonwealth

v. Williams, 980 A.2d 667, 671 (Pa.Super. 2009), appeal denied, 990

A.2d      730    (Pa.   2010),   citing       Pa.R.A.P.   2117(c)   and   2119(e);

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”).4


4
                In any event, the decision to submit the case for
                ARD rests in the sound discretion of the district
                attorney, and absent an abuse of that discretion
                involving some criteria for admission to ARD wholly,
                patently and without doubt unrelated to the
                protection of society and/or the likelihood of a
                person’s success in rehabilitation, such as race,
                religion or    other    such obviously prohibited
                considerations, the attorney for the Commonwealth


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      In his second issue on appeal, appellant claims the court’s verdict was

against the weight of the evidence. Appellant relies on his trial testimony

that he had just completed a late shift at the hospital and was tired and

sleepy. (Appellant’s brief at 10.)

            [A] weight of the evidence claim must be preserved
            either in a post-sentence motion, by a written
            motion before sentencing, or orally prior to
            sentencing. Pa.R.Crim.P. 607; Commonwealth v.
            Priest, 18 A.3d 1235, 1239 (Pa.Super.2011).
            Failure to properly preserve the claim will result in
            waiver, even if the trial court addresses the issue in
            its opinion. Commonwealth v. Sherwood[, 603
            Pa. 92], 982 A.2d 483, 494 (Pa.2009).

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.Super. 2014),

quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).

Appellant failed to comply with Rule 607 by not raising this issue before

sentencing or in a post-sentence motion. Appellant raising the issue in his

Rule 1925(b) statement and the trial court addressing it in its Rule 1925(a)

opinion does not preserve the issue for appeal. Thompson, 93 A.3d at 490-

491; Commonwealth v. Mack, 850 A.2d 690, 694 (Pa.Super. 2004).




            must be free to submit a case or not submit it for
            ARD consideration based on his view of what is most
            beneficial for society and the offender.

Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa. 1985) (emphasis
deleted).  “A district attorney may base a decision to grant or deny
admission to ARD on any consideration related to the protection of society
and the rehabilitation of the defendant.” Commonwealth v. Jagodzinski,
739 A.2d 173, 176 (Pa.Super. 1999).


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Accordingly, the issue is waived. See, e.g., Commonwealth v. O’Bidos,

849 A.2d 243, 252 (Pa.Super. 2004), appeal denied, 860 A.2d 123 (Pa.

2004) (citations omitted) (weight of the evidence claims must be raised via

oral, written, or post-sentence motions in the trial court for the issue to be

preserved for appeal).

      Finally, appellant complains that the trial court improperly allowed the

Commonwealth to present evidence of the PBT results, despite the fact that

PBT results are only used to establish probable cause for arrest and are

inadmissible at trial. See Commonwealth v. Marshall, 824 A.2d 323, 328

(Pa.Super. 2003) (sole purpose of the PBT is to assist the officer in

determining whether or not the person suspected of DUI should be placed

under arrest and is for field screening purposes only; PBT results are not

sufficiently reliable to establish at trial the requisite elements of a DUI

offense) (citations omitted).

      Simply stated, appellant misapprehends the record.      The trial court

sustained appellant’s objections to any testimony regarding the PBT results.

(Notes of testimony, 2/6/15 at 118-119.) We also observe that this was a

bench trial, not a jury trial. “Even if prejudicial information was considered

by the trial court, a judge, as fact finder, is presumed to disregard

inadmissible   evidence     and   consider    only   competent     evidence.”

Commonwealth v. Fears, 836 A.2d 52, 71 n.19 (Pa. 2003), cert. denied,




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545 U.S. 1141 (2005), citing Commonwealth v. Davis, 421 A.2d 179 (Pa.

1980).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2016




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