J-S49023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

MICHAEL J. MARSHALL,

                         Appellee                 No. 2161 MDA 2014 AND
                                                       149 MDA 2015
                                                  CONSOLIDATED CROSS-
                                                          APPEAL


   Appeal from the Judgment of Sentence entered September 19, 2014,
              in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0002456-2014


BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED AUGUST 07, 2015

      At 2161 MDA 2014, the Commonwealth appeals from the judgment of

sentence which the trial court imposed on Michael J. Marshall, (“Marshall”),

pursuant to Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). At

149 MDA 2015, Marshall appeals from his judgment of sentence following

the trial court’s denial of his post-sentence motions. We affirm.

      The trial court summarized the background of this case as follows:

            On February 9, 2014, Officer Erika Eiker of the Northern
      York County Regional Police Department was on patrol when she
      noticed a silver pickup truck doing donuts in the parking lot of a
      Giant Food Store located in Dover Township.          Affidavit of
      Probable Cause, 2/10/14, at 1. Officer Eiker approached the
      vehicle and encountered [Marshall] in the driver's seat. Id.
      After briefly speaking with [Marshall], Officer Eiker suspected
      that he was under in the influence of alcohol. Id. [Marshall]
      agreed to perform several Standardized Field Sobriety tests. Id.
J-S49023-15


       During those tests, he demonstrated numerous indicators of
       impairment. Id. at 1-2. [Marshall] refused to submit to a
       chemical blood test. Id. at 2. [Marshall] was ultimately charged
       with Driving Under the Influence of Alcohol or a Controlled
       Substance 1 and Disorderly Conduct 2.

            On July 28, 2014, a non-jury trial was held before the
       Honorable Thomas H. Kelley, VI. The Court took the matter
       under advisement.       On August 12, 2014, the Court found
       [Marshall] guilty of both offenses.1

Trial Court Supplemental Pa.R.A.P. 1925(a) Opinion, 3/20/15, at 1-2.

       The trial court further explained:

            On September 19, 2014, the Court imposed a sentence of
       6 months intermediate punishment with the first 90 days on
       house arrest. The Commonwealth did not agree on a maximum
       sentence.

                                           ***

             On December 17, 2014, [the Commonwealth] … filed an
       Appeal to the Superior Court of Pennsylvania. The Appeal is of
       the [December 17, 2014] Order of the Court denying
       [Marshall’s] post sentence motions [filed] on September 19,
       2014.    On December 19, 2014, and pursuant to Pa.R.A.P.
       1925(b), the Court directed [the Commonwealth] to file a
       Concise Statement of Matters Complained of on Appeal. On
       January 5, 201[5], [the Commonwealth] timely filed a
       statement.

Trial Court Opinion, 1/12/15, at 1-2.


____________________________________________


1
   In its January 12, 2015 opinion relative to this appeal, the trial court
specified that it convicted Marshall of “driving under the influence of alcohol
or a controlled substance (DUI) under 75 Pa. C.S.A. § 3802(a)(1) and
disorderly conduct under 18 Pa. C.S.A. § 5503(a)(4). The DUI offense was
[Marshall’s] second in the last ten years. As a result, the Commonwealth
charged [Marshall] with a Tier III, second offense.” Trial Court Opinion,
1/12/15, at 1.



                                           -2-
J-S49023-15


            On January 16, 2015, [Marshall], through his counsel, …
     filed an Appeal to the Superior Court of Pennsylvania [following
     the trial court’s December 17, 2014 order denying Marshall’s
     post-trial motions]. The Appeal is of the verdict of the Non-Jury
     Trial entered on this matter on August 12, 2014 [and from the
     judgment of sentence imposed on September 19, 2014.]. On
     January 22, 2015, and pursuant to Pa.R.A.P. 1925(b), the Court
     directed [Marshall] to file a Concise Statement of Matters
     Complained of on Appeal. On February 11, 2015, [Marshall]
     timely filed a Statement.

Trial Court Supplemental Pa.R.A.P. 1925(a) Opinion, 3/20/15, at 1-2.

      The trial court issued its original Pa.R.A.P. 1925(a) opinion on January

12, 2015, and supplemental trial court opinion on March 20, 2015.          On

February 25, 2015, by per curiam order, we consolidated the appeals.

     At 2161 MDA 2014, the Commonwealth presents a single issue:

     WHETHER THE SENTENCING COURT ERRED WHEN IT HELD
     THAT SIX MONTHS FOR [MARSHALL’S] DRIVING UNDER THE
     INFLUENCE (REFUSAL) (2ND OFFENSE) CONVICTION WAS THE
     STATUTORY MAXIMUM ALLOWABLE SENTENCE IT COULD
     CONSIDER[?]

Commonwealth’s Brief at 4.

     In reviewing this issue, we recognize:

     [] Issues relating to the legality of a sentence are questions of
     law, as are claims raising a court's interpretation of a statute.
     Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa. Super.
     2006). Our standard of review over such questions is de novo
     and our scope of review is plenary. See Leverette, 911 A.2d at
     1002.

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008).

     Moreover, we cannot disregard that:




                                    -3-
J-S49023-15


     “The Rules of Appellate Procedure state unequivocally that each
     question an appellant raises is to be supported by discussion and
     analysis of pertinent authority.” Estate of Haiko v. McGinley,
     799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P. 2119(b).
     “Appellate arguments which fail to adhere to these rules may be
     considered waived, and arguments which are not appropriately
     developed are waived. Arguments not appropriately developed
     include those where the party has failed to cite any authority in
     support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29–
     30 (Pa. Super. 2006) (citations omitted). This Court will not act
     as counsel and will not develop arguments on behalf of an
     appellant. Irwin Union National Bank and Trust Company v.
     Famous and Famous and ATL Ventures, 4 A.3d 1099, 1103 (Pa.
     Super. 2010) (citing Commonwealth v. Hardy, 918 A.2d 766,
     771 (Pa. Super. 2007)).        Moreover, we observe that the
     Commonwealth Court, our sister appellate court, has aptly noted
     that “[m]ere issue spotting without analysis or legal citation to
     support an assertion precludes our appellate review of [a]
     matter.” Boniella v. Commonwealth, 958 A.2d 1069, 1073 n. 8
     (Pa. Cmwlth. 2008) (quoting Commonwealth v. Spontarelli, 791
     A.2d 1254, 1259 n. 11 (Pa. Cmwlth. 2002)).

Coulter v. Ramsden, 94 A.3d 1080, 1088-1089 (Pa. Super. 2014).

     Here, the Commonwealth raised and developed its Musau issue.

However, the Commonwealth failed to develop its additional assertion raised

in its Pa.R.A.P. 2119(f) certification that “in regards to [Marshall], 75

Pa.C.S.A. § 3804(d) expressly requires the sentencing court to issue a

maximum sentence equivalent to the statutory maximum when the

defendant’s CRN evaluation shows that the individual is in need of additional

treatment and a treatment evaluation pursuant to 75 Pa.C.S.A. § 3814(2) is

needed.”   Commonwealth Brief at 7; see generally 8-24.          Indeed, the

Commonwealth failed to specify the Section 3804(d) issue in its Pa.R.A.P.

1925 statement.   See Commonwealth Pa.R.A.P. 1925 Statement of Errors



                                    -4-
J-S49023-15



Complained of on Appeal, 1/5/15.          Accordingly, the Commonwealth’s

argument regarding the trial court’s failure to sentence Marshall pursuant to

75 Pa.C.S.A. § 3804(d) is waived.

     We further find that the Commonwealth’s Musau issue does not merit

relief. In Musau, we reasoned:

     [S]ection 3803 of the vehicle code … provides in relevant part as
     follows[:]

     (a) Basic offenses.—Notwithstanding          the   provisions   of
     subsection (b):

     (1) An individual who violates section 3802(a) (relating to
     driving under influence of alcohol or controlled substance) and
     has no more than one prior offense 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 (relating to penalties).

                                    ***

     (b) Other offenses.—

                                    ***

     (4) An individual who violates section 3802(a)(1) where the
     individual refused testing of blood or breath, or who violates
     section 3802(c) or (d) and who has one or more prior offenses
     commits a misdemeanor of the first degree.

     75 Pa.C.S. § 3803.      The statutory maximum sentence for
     misdemeanors of the first degree is five years’ imprisonment.
     18 Pa.C.S. § 106(b)(6), (e).

                                    ***

            [Musau] … claims that “[i]t is equally clear from the
     statute that subsection (a) dictates that the maximum sentence
     [Musau] could receive for this particular offense is six months
     [of] incarceration.” Id. Because the word “notwithstanding” is
     defined as “‘nevertheless’ or ‘in spite of,’” [Musau] argues that
     “the statute clearly indicates that while subsection (b) dictates


                                    -5-
J-S49023-15


      the grading of a second offense where there is a BAC refusal,
      subsection (a) dictates the maximum punishment for that
      offense” Id. at 9.

                                      ***

             We are constrained to agree with [Musau]. The American
      Heritage Dictionary defines the word notwithstanding as “in spite
      of” or “although.” American Heritage Dictionary of the English
      Language 1203–04 (4th ed. 2006). Our Supreme Court has
      defined “notwithstanding” as “regardless of.” See City of
      Philadelphia v. Clement & Muller, 552 Pa. 317, 715 A.2d 397,
      399 (1998) (holding that the plain meaning of the phrase
      “notwithstanding a contrary provision of law of the
      Commonwealth ...” is “regardless of what any other law provides
      ...”).     Given   these    definitions,   the   Commonwealth’s
      interpretation might be persuasive if the legislature had instead
      prefaced subsection (a) with “except as provided in subsection
      (b),” or began subsection (b) with “notwithstanding the
      provisions of subsection (a).” But it did not. Therefore, we hold
      that the plain language of the statute, giving the words their
      ordinary meanings, indicates as follows: regardless of the fact
      that refusal to submit to blood alcohol testing results in the
      grading of the offense as a first degree misdemeanor, the
      maximum sentence for a first or second DUI conviction is six
      months' imprisonment.

Musau, 69 A.3d at 757-758 (footnote omitted).

      The Musau Court observed that “[i]f the legislature did not in fact

intend   to   create   a   lesser   maximum   sentence   for   the   first-degree

misdemeanor of a first or second DUI with refusal than is permissible

generally for misdemeanors of the first degree, such an ‘oversight is best left

to the Legislature to correct.’”    Id. at 758 n.2, citing Commonwealth v.

Gordon, 992 A.2d 204, 207 n.8 (Pa. Super. 2010). On October 27, 2014,

our Legislature amended Section 3803 to read “[e]xcept as provided in

subsection (b),” rather than “[n]otwithstanding the provisions of subsection


                                      -6-
J-S49023-15



(b).”   See 75 Pa.C.S.A. § 3803(a).    This amendment, however, does not

entitle the Commonwealth to relief in this case because Marshall’s February

19, 2014 DUI offense predated the effective date of the amendment. See

Commonwealth v. Williams, 871 A.2d 254, 259 n.5 (Pa. Super. 2005)

(citations omitted) (“A defendant can be convicted only under statutes in

effect on the date of his acts.”). Therefore, pursuant to Musau, we affirm

Marshall’s judgment of sentence. See Trial Court Opinion, 1/12/15, at 2-3

(unnumbered) (“The Musau ruling states the law clearly.        The maximum

sentence for a Tier III refusal, second offense, is six months. Although the

Commonwealth may adamantly disagree with the Superior Court's ruling,

this disagreement does not entitle the Commonwealth to change the

statutory construction. The Court is required to follow the law as interpreted

and held by the Superior Court. As a result, the Court concludes that it did

not err when it imposed a maximum sentence of six months.”); see also

Commonwealth v. Spease, 911 A.2d 952, 959 (Pa. Super. 2006) (citation

omitted) (a prior opinion from our Court is “binding upon this Court and we

are not at liberty to overrule it” in the absence of a superseding en banc

Superior Court opinion or a Supreme Court opinion reversing the prior

precedent).    We further observe that the Commonwealth in opposing

Marshall’s request for a jury trial asserted that “the Commonwealth’s

position would be that this would be a bench trial since the maximum is only

six months at this point” due to the Musau decision. N.T., 7/15/14, at 2.




                                    -7-
J-S49023-15



       At 149 MDA 2015, Marshall cross-appeals and raises two issues:

       1. Whether there was insufficient evidence to support the
       Judge's finding of guilt on count 1, DUI, General Impairment,
       because the Commonwealth failed to present sufficient evidence
       that the poor driving was caused by alcohol impairment?

       2. Whether the Judge's verdict as to count 1 is against the
       weight of the evidence when the testimony with respect the
       SFSTs was of insufficient weight because the tests were
       performed on a snow covered surface?

Marshall’s Brief at 6.2

       In reviewing Marshall’s sufficiency claim, we recognize:

              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 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 received must be considered. Finally, the
       [finder] of fact while passing upon the credibility of witnesses
____________________________________________


2
  Marshall raises a third issue in which he asserts that “the trial court
correctly sentenced Marshall to six months’ imprisonment as the maximum
sentence in accordance with the Superior Court's holding in Musau.”
Marshall’s Brief at 6.   Because our discussion and disposition of the
Commonwealth’s appeal supra disposes of Marshall’s third issue, we decline
to address it further.



                                           -8-
J-S49023-15


      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (internal

citations omitted).

      In rebutting Marshall’s sufficiency claim, the trial court, sitting as the

fact finder, explained:

            Viewing the evidence in the light most favorable to the
      Commonwealth, the evidence presented was sufficient to
      establish that the Appellant was guilty of Driving Under the
      Influence and Disorderly Conduct. During the non-jury trial, the
      Court heard testimony from Officer Eiker that she noticed several
      indicators of impairment during the Appellant's Standardized
      Field Sobriety Tests. N.T., Non-Jury Trial, 7/28/14, at 11-14. As
      a result, Officer Eiker testified, she believed the Appellant was
      impaired and incapable of safely driving. Id. at 16. Therefore,
      the Court finds that its verdict was based on sufficient evidence
      to prove the Appellant was guilty.

Trial Court Supplemental 1925(a) Opinion, 3/20/15, at 3.         Based on our

careful scrutiny of the record, we agree with the trial court and find that

Marshall’s sufficiency challenge fails.

      Marshall acknowledges, “Officer Eiker smelled an odor of alcohol and

noticed that Marshall’s eyes were bloodshot and glassy. N.T., [7/28/14, at]

8:14-21.” Marshall’s Brief at 7. During the stop, Officer Eiker testified that

she asked Marshall “how much he had to drink”, to which Marshall replied

that “he was coming from the Racehorse Tavern [where] he drank three

beers on draft.” N.T., 7/28/14, at 8-9. Officer Eiker further testified that

“[Marshall] said that his last drink was approximately 15 minutes prior to me

talking to him.” Id. at 9.

                                      -9-
J-S49023-15



      While Marshall criticizes Officer Eiker’s administration of field sobriety

tests in the snow, Officer Eiker explained that the ground “was level. It was

a flat surface in a parking lot. There was [sic] no hills or anything like that.”

Id. at 10. She conceded there was snow, but noted that the ground was

only “snow covered lightly[.]”     Id.   On cross-examination, Officer Eiker

testified that she “performed the test to [Marshall].        I didn’t have any

trouble.   I didn’t slip or slide or fall down.”     Id. at 31.    Officer Eiker

emphasized that she “performed the tests in the same conditions that

[Marshall] did.” Id. at 32.

       Marshall also argues that “Officer Eiker did not grade [Marshall’s

performance of the Walk and Turn test] correctly,” because “Officer Eiker

counted Marshall swaying during the instructional phase as a clue.”

Marshall’s Brief at 8 (citations to the record omitted).     Marshall maintains

“the clue is losing balance during the instructional phase, and that clue has

been explained as the performer must break the heel to toe stance.”          Id.

(citation to the record omitted). Marshall discounts Officer Eiker’s testimony

that Marshall “didn’t listen” during the instructional phase of this test, which

required Marshall to place his right foot first.     N.T., 7/28/14, at 12-13.

Contrary to Officer Eiker’s instructions, Marshall “had his left foot first, so

[Officer Eiker] had to correct him.” Id. at 13. Officer Eiker further testified,

“[d]uring the test, I noted [Marshall] stepped off the line. At one point, he

raised his arms. He did not perform the turn as I had demonstrated to him.

I believe he missed heel to toe on one of the steps.”      Id. Further, rather

                                     - 10 -
J-S49023-15



than taking nine steps to complete the walk portion of the test prior to the

turn, Officer Eiker testified that Marshall “only took eight steps in the first

phase of the [Walk and Turn] test.”      Id.   Officer Eiker testified that her

perception of Marshall being under the influence of alcohol was based on

“everything, [Marshall’s] statements, the smell of alcohol, when [Marshall]

consumed his last drink, [Marshall’s] behavior. Doing donuts in the parking

lot was abnormal … And just his performance on the field sobriety tests.”

Id. at 45-46.    In considering the foregoing evidence in the light most

favorable to the Commonwealth, there was ample and sufficient evidence to

support Marshall’s DUI conviction.

      We next consider Marshall’s weight claim. The trial court observed:

      “The weight of the evidence is exclusively for the finder of fact
      who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses.” Commonwealth v.
      Champney, 832 A.2d 403, 408 (Pa. 2003) (citing Commonwealth
      v. Johnson, 668 A.2d 97, 101 (Pa. 1995), cert. denied, 519 U.S.
      827 (1996)). The standard for reviewing a challenge to the
      weight of the evidence is well-settled in Pennsylvania:

         A motion for a new trial based a claim that the verdict is
         against the weight of the evidence is addressed to the
         discretion of the trial court. A new trial should not be
         granted because of a mere conflict in the testimony or
         because the judge on the same facts would have arrived at
         a different conclusion. Rather, the role of the trial judge is
         to determine that notwithstanding all the facts, certain
         facts are so clearly of greater weight that to ignore them
         or to give them equal weight with all the facts is to deny
         justice. It has often been stated that a new trial should be
         awarded when the jury’s verdict is so contrary to the
         evidence as to shock one's sense of justice and the award
         of a new trial is imperative so that right may be given
         another opportunity to prevail.


                                     - 11 -
J-S49023-15


      Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014).

            [Marshall’s] argument that the verdict is against the
      weight of the evidence is without merit. After assessing the
      credibility of the sole witness[, Officer Eiker,] and listening to the
      evidence offered in this case, the Court, acting as the fact finder,
      found the case presented by the Commonwealth to be
      convincing beyond a reasonable doubt. Therefore, the Court
      finds that its verdict does not go against the weight of the
      evidence.

Trial Court Supplemental Pa.R.A.P. 1925(a) Opinion, 3/20/15, at 3–4.

      Based on our review of the record, we agree with the trial court that

Marshall’s DUI conviction was not against the weight of the evidence. We

further observe that at the sentencing hearing, the trial court remarked that

it “had the benefit of hearing the testimony in this case, and as noted, this

was a very close call with regard to [Marshall] and his guilt, although

ultimately the court made the determination that the Commonwealth had

sustained its burden.” N.T., 9/19/14, at 2-3.       The trial court reiterated this

position   during    the   hearing   denying    Marshall’s    post-trial   motions.

Specifically, the trial court stated that “it was a close call with regard to all of

the evidence, but [the Commonwealth] ultimately did convince me beyond a

reasonable doubt.”    N.T., 12/17/14, at 6. Finding that the trial court did not

abuse its discretion in finding Marshall guilty of DUI, we will not reverse the

trial court’s verdict. Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.

Super. 2003) (citation omitted) (“It is the function of the [fact-finder] to

evaluate evidence adduced at trial to reach a determination as to the facts,

and where the verdict is based on substantial, if conflicting evidence, it is



                                      - 12 -
J-S49023-15



conclusive on appeal.”); see also Commonwealth v. Boczkowski, 846

A.2d 75, 82 (Pa. Super. 2004) citing Commonwealth v. Tharp, 830 A.2d

519, 527 (Pa. 2003) (noting “the [fact-finder] [is] not obligated to accept”

the evidence submitted by the defense).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




                                   - 13 -
