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                                2015 PA Super 151

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                      v.                   :
                                           :
JAMES L. BEST,                             :           No. 1628 WDA 2012
                                           :
                           Appellant       :


           Appeal from the Judgment of Sentence, June 5, 2012,
             in the Court of Common Pleas of Bedford County
             Criminal Division at No. CP-05-CR-0000033-2011


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


OPINION BY FORD ELLIOTT, P.J.E.:                          FILED JULY 16, 2015

      Appellant appeals the judgment of sentence imposed following his

several driving under the influence (“DUI”) related convictions. Finding no

error, we affirm.

      On the evening of December 14, 2010, appellant was involved in a

head-on   collision    with   another   vehicle   on   East   Graceville   Road   in

Breezewood.      When Trooper Matthew J. Bonin approached appellant,

appellant exhibited a strong odor of alcohol, slurred speech, and bloodshot,

glassy eyes.   (Notes of testimony, 3/6/12 at 170.) Bonin asked appellant

how much he had had to drink, and appellant replied that he had consumed

three or four beers.        (Id. at 169-170.)     Bonin testified that appellant

admitted to him that he went into the opposite lane of travel, but that it was

caused by him hitting a patch of ice. (Id. at 168-169.) According to Bonin,
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appellant failed field sobriety tests.     (Id. at 170-172.)1      Bonin then

investigated appellant’s car. Bonin did not possess a search warrant at the

time, but subsequently presented an application to a magisterial district

judge and was granted a warrant. (See Application for Search Warrant and

Authorization, 12/15/10.)    In appellant’s vehicle, Bonin observed several

open beer cans and a whisky flask. (Id. at 173.) When Bonin opened the

flask, he observed a liquid that had an odor of alcohol. (Id. at 175-176.)

Bonin also found a pipe and small amount of marijuana in the console of the

vehicle. (Id. at 176-177.) Appellant refused chemical testing. (Id. at 191.)

When Bonin later went to appellant’s home to serve an arrest warrant, he

overheard appellant telling his mother that he had consumed five or

six beers. (Id. at 193.) Bonin testified that it was his opinion that appellant

was under the influence of alcohol, impaired, and incapable of safe driving.

(Id. at 192.)

      Appellant stipulated at trial that his license was suspended at the time

of the accident, and that he had been designated as a “habitual offender” by

the Pennsylvania Department of Transportation as a result of prior offenses.

(Id. at 197-198.) No details were given to the jury as to the nature of those

prior offenses.




1
  A video of the tests recorded by a mobile video recorder in the police
vehicle was played for the jury. (Id. at 186-187.)


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      Testimony was also presented from the teenage occupants of the other

vehicle. Kyle Frankenberry was driving and his girlfriend McKenna Sipes was

in the passenger seat. (Id. at 113.) Frankenberry testified that just before

the crash, he attempted to swerve to avoid the collision. (Id. at 113, 115.)

Frankenberry was trapped in his vehicle after the crash and Sipes was

unconscious. (Id. at 116.) Frankenberry was taken by ambulance to the

hospital.   (Id. at 117-118.)   He remembered his dislocated leg being put

back in place in his hip, but he did not recall the subsequent surgery. (Id.

at 118.)    Frankenberry spent seven days at this hospital and then five

additional days at another hospital.    (Id. at 119.)    Finally, Frankenberry

described the ongoing ill effects that the accident has had on his life. (Id. at

119-122.)

      Sipes also testified. She remembered riding in the car that night, but

almost nothing about the accident; her first memory was hearing one of the

EMT’s talking to her in the car. (Id. at 144-148.) She did state that neither

she nor Frankenberry had had anything to drink that night and that

Frankenberry was driving normally.      (Id. at 146-147.)    Sipes was in the

hospital for six days and had hip surgery.         (Id. at 149.)    Sipes also

described the ill effects that the accident has had on her life.        (Id. at

149-153.)

      Dr. Corey Schutt testified as to his treatment of both Frankenberry and

Sipes for a dislocated hip and fractured pelvis. (Id. at 76-80.) He described



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the injuries as serious and the surgery as intense. (Id. at 76-77.) Another

trauma surgeon who treated the victims, Dr. Simon Lampard, also described

the victims’ various injuries. (Id. at 86-100.)

      On March 7, 2012, the jury found appellant guilty of (2) counts of

aggravated assault by vehicle while DUI; (1) count of accidents involving

death or personal injury while not properly licensed; (1) count DUI general

impairment; (1) count of habitual offenders; (1) count of reckless driving;

(1) count of restriction on alcoholic beverages; (1) count driving under

suspension, DUI related; (1) count driving on roadways laned for traffic;

(1) count careless driving; (1) count of possession of a small amount of

marijuana   for   personal   use;   and   (1)   count   of   possession   of   drug

paraphernalia.2 On May 7, 2012, the court imposed an aggregate sentence

of 59 months’ to 20 years’ imprisonment.          Post-sentence motions were

denied on September 17, 2012, and a timely notice of appeal was filed on

October 11, 2012.

      Appellant raises the following issues on appeal:

            I.      APPELLANT CHALLENGES THE SUFFICIENCY
                    OF THE EVIDENCE TO CONVICT HIM OF THE
                    OFFENSES OF AGGRAVATED ASSAULT BY
                    VEHICLE WHILE DUI, 75 Pa.C.S.A. § 3735.1,
                    COUNTS 1 AND 2, AS THE EVIDENCE
                    ADDUCED AT TRIAL FAILED TO PROVE:
                    (a) CAUSATION, NAMELY, FAILED TO PROVE
                    IN EACH COUNT THAT APPELLANT CAUSED

2
  75 Pa.C.S.A. §§ 3735.1(a); 3742.1(a); 3802(a)(1); 6503.1; 3736(a);
3809(a); 1543(b)(1); 3309; 3714(a), respectively, and 35 P.S. § 780-
113(a)(31) and (a)(32), respectively.


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                 SERIOUS BODILY INJURY TO THE VICTIM IN
                 EACH COUNT AND/OR THAT THE ALLEGED
                 VIOLATION OF 75 Pa.C.S.A. § 3802 CAUSED
                 SERIOUS BODILY INJURY TO THE VICTIM IN
                 EACH    COUNT;     (b)   INTENT,  NAMELY,
                 NEGLIGENCE,     IN     EACH   COUNT,  AS
                 PROVIDED AT 18 Pa.C.S.A. § 302 (b)
                 AND/OR (c) IN EACH COUNT, FOR THE
                 NECESSARY LESSER-INCLUDED OFFENSE OF
                 AN ALLEGED VIOLATION OF 75 Pa.C.S.A.
                 § 3802, AS PROVIDED AT 75 Pa.C.S.A.
                 § 3802(a)(1), THAT APPELLANT IMBIBED A
                 SUFFICIENT AMOUNT OF ALCOHOL SUCH
                 THAT HE WAS RENDERED INCAPABLE OF
                 SAFE DRIVING, OPERATING OR BEING IN
                 ACTUAL    PHYSICAL      CONTROL  OF THE
                 MOVEMENT OF THE VEHICLE.

          II.    APPELLANT CHALLENGES THE SUFFICIENCY
                 OF THE EVIDENCE TO CONVICT HIM OF THE
                 OFFENSE OF ACCIDENT INVOLVING DEATH
                 OR PERSONAL INJURY WHILE NOT PROPERLY
                 LICENSED, 75 Pa.C.S.A. § 3742.1(a),
                 COUNT 3, AS THE EVIDENCE ADDUCED AT
                 TRIAL FAILED TO PROVE: (a) CAUSATION,
                 NAMELY, THAT APPELLANT CAUSED THE
                 ACCIDENT    TO  OCCUR      AND/OR  THAT
                 APPELLANT’S         SUSPENDED/REVOKED
                 OPERATING PRIVILEGE HAD ANY CAUSATIVE
                 EFFECT UPON THE ACCIDENT; AND/OR
                 (b) INTENT,  NAMELY,    NEGLIGENCE   AS
                 PROVIDED IN 18 Pa.C.S.A. § 302(b).

          III.   APPELLANT CHALLENGES THE SUFFICIENCY
                 OF THE EVIDENCE TO CONVICT HIM OF THE
                 OFFENSE OF POSSESSION OF A SMALL
                 AMOUNT OF MARIJUANA, 35 P.S. § 780-113
                 (a)(31)(i), COUNT 4, AS THE EVIDENCE
                 ADDUCED AT TRIAL FAILED TO PROVE THAT
                 APPELLANT POSSESSED, ACTUALLY OR
                 CONTRUCTIVELY [sic], MARIJUANA.

          IV.    APPELLANT CHALLENGES THE SUFFICIENCY
                 OF THE EVIDENCE TO CONVICT HIM OF THE


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                  OFFENSE    OF  POSSESSION    OF   DRUG
                  PARAPHERNALIA, 35 P.S. § 780-113(a)(32),
                  COUNT 5, AS THE EVIDENCE ADDUCED AT
                  TRIAL FAILED TO PROVIDE THAT APPELLANT
                  POSSESSED,         ACTUALLY          OR
                  CONSTRUCTIVELY, DRUG PARAPHERNALIA.

          V.      APPELLANT CHALLENGES THE SUFFICIENCY
                  OF THE EVIDENCE TO CONVICT HIM OF THE
                  OFFENSE OF DUI-GENERAL IMPAIRMENT-
                  REFUSAL, 75 Pa.C.S.A. § 3802(a)(1), AS THE
                  EVIDENCE AT TRIAL FAILED TO PROVE:
                  (a) THAT APPELLANT IMBIBED A SUFFICIENT
                  AMOUNT OF ALCOHOL SUCH THAT HE WAS
                  RENDERED INCAPABLE OF SAFE DRIVING,
                  OPERATING OR BEING IN ACTUAL PHYSICAL
                  CONTROL OF THE MOVEMENT OF THE
                  VEHICLE;   AND    (b)   THAT    APPELLANT
                  REFUSED    TO   SUBMIT     TO    CHEMICAL
                  TESTING.

          VI.     APPELLANT       CHALLENGED      [sic]   THE
                  SUFFICIENCY OF THE EVIDENCE TO CONVICT
                  HIM OF THE OFFENSE OF HABITUAL
                  OFFENDERS, 75 Pa.C.S.A. § 6503.1, COUNT
                  7, AS THE EVIDENCE ADDUCED AT TRIAL
                  FAILED     TO    PROVE    APPELLANT    HAD
                  ACCUMULATED THE REQUISITE NUMBER OF
                  CONVICTIONS FOR SEPARATE AND DISTINCT
                  OFFENSES DESCRIBED AND ENUMBERATED
                  [sic] IN 75 Pa.C.S.A. 1542(b) WITHIN A FIVE
                  (5) YEAR PERIOD.

          VII.    APPELLANT CHALLENGES THE SUFFICIENCY
                  OF THE EVIDENCE TO CONVICT HIM OF THE
                  OFFENSE      OF    RECKLESS    DRIVING,
                  75 Pa.C.S.A. § 3736(a), COUNT 8, AS THE
                  EDVIDENCE [sic] ADDUCED AT TRIAL FAILED
                  TO PROVE THAT APPELLANT ACTED WITH
                  WANTON OR WILLFUL DISREGARD FOR THE
                  SAFETY OF PERSONS OR PROPERTY.

          VIII.   APPELLANT CHALLENGES THE SUFFICIENCY
                  OF THE EVIDENCE TO CONVICT HIM OF THE


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                OFFENSE OF RESTRICTION ON ALCOHOLIC
                BEVERAGES, 75 Pa.C.S.A. § 3809(a), COUNT
                9, AS THE EVIDENCE ADDUCED AT TRIAL
                FAILED  TO   PROVE     THAT   APPELLANT
                POSSESSED,          ACTUALLY          OR
                CONSTRUCTIVELY, AN OPEN BEVERAGE
                CONTAINER OR CONSUMED A CONTROLLED
                SUBSTANCE OR ALCOHOLIC BEVERAGE IN A
                MOTOR   VEHICLE    WHILE    THE    MOTOR
                VEHICLE WAS LOCATED ON A HIGHWAY IN
                THIS COMMONWEALTH.

          IX.   APPELLANT CHALLENGES THE SUFFICIENCY
                OF THE EVIDENCE TO CONVICT HIM OF THE
                OFFENSE OF DRIVING WHILE OPERATING
                PRIVILEGE IS SUSPENDED OR REVOKED,
                75 Pa.C.S.A. § 1543 (b)(1.1), COUNT 10, AS
                THE EVIDENCE ADDUCEDC [sic] AT TRIAL
                FAILED TO PROVE APPELLANT HAD ANY
                AMOUNT OF ALCOHOL OR CONTROLLED
                SUBSTANCE IN HIS BLOOD.

          X.    APELLANT      [sic]    CHALLENGES      THE
                SUFFICIENCY OF THE EVIDENCE TO CONVICT
                HIM OF THE OFFENSE OF DRIVING ON
                ROADWAYS        LANED     FOR     TRAFFIC,
                75 Pa.C.S.A. § 3309(1), COUNT 11, AS THE
                EVIDENCE ADDUCED AT TRIAL FAILED TO
                PROVE    THAT     APPELLANT   FAILED    TO
                MAINTAIN THE VEHICLE AS NEARLY AS
                PRACTICABLE ENTIRELY WITHIN A SINGLE
                LANE AND/OR THAT APPELLANT MOVED
                FROM     THE     LAND    WITHOUT     FIRST
                ASCERTAINING THAT THE MOVEMENT COULD
                BE DONE SAFELY.

          XI.   APPELLANT CHALLENGES THE SUFFICIENCY
                OF THE EVIDENCE TO CONVICT HIM OF THE
                OFFENSE      OF   CARELESS    DRIVING,
                75 Pa.C.S.A. § 3714, COUNT 12, AS THE
                EVIDENCE ADDUCED AT TRIAL FAILED TO
                PROVE     THAT  APPELLANT  ACTED    IN
                CARELESS DISREGARD FOR THE SAFETY OF
                PERSONS OR PROPERTY.


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          XII.    APPELLANT ASSERTS THAT THE JURY’S
                  VERDICTS ON COUNTS 1, 2, AND 3 WERE
                  AGAINST THE WEIGHT OF THE EVIDENCE
                  INASMUCH AS NO CREDIBLE TESTIMONY
                  WAS     PRESENTED     ON     CAUSATION,
                  APPELLANT’S   INTENT,    THE    VICTIMS’
                  SERIOUS     BODILY     INJURIES,     THE
                  ALLEGATION THAT APPELLANT HAD IMBIBED
                  A SUFFICIENT AMOUNT OF ALCOHOL TO
                  RENDER HIM IN CAPABLE [sic] OF SAFE
                  DRIVING OR OPERATION OF THE VEHICLE
                  AND THE TESIMONY [sic] PRESENTED WAS
                  NOT CREDIBLE.

          XIII.   APPELLANT ASSERTS THAT THE JURY’S
                  VERDICT ON COUNT 5 WAS AGAINST THE
                  WEIGHT OF THE EVIDENCE INASMUCH AS
                  NO CREDIBLE TESTIMONY WAS PRESENTED
                  AS TO APPELLANT’S POSSESSION, ACTUALLY
                  OR     CONSTRUCTIVELY,     OF    DRUG
                  PARAPHERNALIA    AND   THE  TESTIMONY
                  PRESENTED WAS NOT CREDIBLE.

          XIV.    APPELLANT ASSERTS THE JURY’S VERDICT
                  ON COUNT 7 WAS AGAINST THE WEIGHT OF
                  THE EVIDENCE INASMUCH AS NO CREDIBLE
                  TESTIMONY      WAS    PRESENTED    THAT
                  APPELLANT     HAD    ACCUMULATED    THE
                  REQUISITE NUMBER OF CONVICTIONS FOR
                  SEPARATE AND DISTENCT [sic] OFFENSES
                  DESCRIBED      AND     ENUMERATED     IN
                  75 Pa.C.S.A. § 1542(b) WITHIN A FIVE (5)
                  YEAR PERIOD.

          XV.     APPELLANT ASSERTS THAT THE COURT’S
                  VERDICT ON COUNT 6 WAS AGAINST THE
                  WEIGHT OF THE EVIDENCE INASMUCH AS
                  NO CREDIBLE TESTIMONY WAS PRESENTED
                  THAT APPELLANT POSSESSED, ACTUALLY OR
                  CONSTRUCTIVELY, MARIJUANA.

          XVI.    APPELLANT ASSERTS THAT THE COURT’S
                  VERDICT ON COUNT 8 WAS AGAINST THE


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                  WEIGHT OF THE EVIDENCE INASMUCH AS
                  NO CREDIBLE TESTIMONY WAS PRESENTED
                  THAT APPELLANT ACTED WITH A WANTON
                  OR WILLFUL DISREGARD FOR THE SAFETY
                  OF PERSONS OR PROPERTY.

          XVII.   APPELLANT ASSERTS THAT THE COURT’S
                  VERDICT ON COUNT 9 WAS AGAINST THE
                  WEIGHT OF THE EVIDENCE INASMUCH AS
                  NO CREDIBLE TESTIMONY WAS PRESENTED
                  THAT APPELLANT POSSESSED, ACTUALLY OR
                  CONSTRUCTIVELY, AN OPEN ALCOHOLIC
                  BEVERAGE CONTAINER OR CONSUMED A
                  CONTROLLED SUBSTANCE OR ALCOHOLIC
                  BEVERAGE IN A MOTOR VEHICLE WHILE THE
                  MOTOR VEHICLE WAS LOCATED ON A
                  HIGHWAY IN THIS COMMONWEALTH.

          XVIII. APPELLANT ASSERTS THE COURT’S VERDICT
                 ON COUNT 10 WAS AGAINST THE WEIGHT
                 OF THE EVIDENCE INASMUCH AS NO
                 CREDIBLE TESTIMONY [WAS] PRESENTED
                 THAT APPELLANT HAD ANY AMOUNT OF
                 ALCOHOL OR CONTROLLED SUBSTANCE IN
                 HIS BLOOD.

          XIX.    APPELLANT ASSERTS THAT THE COURT’S
                  VERDICT ON COUNT 11 WAS AGAINST THE
                  WEIGHT OF THE EVIDENCE INASMUCH AS
                  NO CREDIBLE TESTIMONY WAS PRESENTED
                  THAT APPELLANT FAILED TO MAINTAIN THE
                  VEHICLE AS NEARLY AS PRACTICABLE
                  ENTIRELY WITHIN A SINGLE LANE AND/OR
                  THAT APPELLANT MOVED FROM THE LANE
                  WITHOUT FIRST ASCERTAINING THAT THE
                  MOVEMENT COULD BE DONE SAFELY.

          XX.     APPELLANT ASSERTS THAT THE COURT’S
                  VERDICT ON COUNT 12 WAS AGAINST THE
                  WEIGHT OF THE EVIDENCE INASMUCH AS
                  NO CREDIBLE TESTIMONY WAS PRESENTED
                  THAT APPELLANT ACTED IN CARELESS
                  DISREGARD FOR THE SAFETY OF PERSONS
                  OR PROPERTY.


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          XXI.    AS SET FORTH IN PARAGRAPHS 17, 18 AND
                  19 OF THE OMNIBUS PRE-TRIAL MOTION
                  FOR RELIEF, FILED OF RECORD ON MARCH 1,
                  2012, WHICH ARE INCORPORATED HEREIN
                  BY REFERENCE, AND RENEWED AT TRIAL,
                  APPELLANT WAS PREJUDICED BY THE
                  EVIDENCE OF HIS PRIOR RECORD INCIDENT
                  TO THE PROOF OF COUNTS 3 7 AND 10 IN
                  THE TRIAL OF THE UNSEVERED COUNTS 1,
                  2, 4, 5 AND 6, AND THE COURT ABUSED ITS
                  DISCRETION     IN   FAILING TO   GRANT
                  SEVERANCE.

          XXII.   AS SET FORTH IN PARAGRAPHS 7, 8 AND 9
                  OF THE OMNIBUS PRE-TRIAL MOTION, FILED
                  OF RECORD ON MARCH 1, 2012, WHICH ARE
                  INCOPORATED [sic] HEREIN BY REFERENCE,
                  AND RENEWED AT TRIAL, THE COURT ERRED
                  BY OMITTING TO PROPERLY RULE ON THE
                  SUPPRESSION MOTION FOR THE VEHICLE
                  SEARCH AND TO SUPPRESS THE EVIDENCE
                  OF SUCH SEARCH AND THE FRUITS
                  THEREOF, INASMUCH AS THE WARRANTLESS
                  SEARCH OF THE VEHICLE WAS NOT SUPPORT
                  [sic] BY EXIGENCY OR OTHER SUFFICIENT
                  BASIS; INCLUDING, WITHOUT LIMITATION,
                  THE OFFICER’S OBSERVATION OF A SINGLE
                  BLUE PILL.

          XXIII. AS SET FORTH IN PARAGRAPHS 7, 8, 9, 11,
                 13 AND 14 OF THE OMNIBUS PRE-TRIAL
                 MOTION, FILED OF RECORD ON MARCH 1,
                 2012, WHICH ARE INCORPORATED HEREIN
                 BY REFERENCE, AND RFENEWED [sic] AT
                 TRIAL, THE COURT ERRED BY OMITTING TO
                 PROPERLY RULE ON THE SUPPRESSION
                 MOTION FOR THE SEARCH WARRANT AND TO
                 SUPPRESS THE EVIDENCE OF SUCH SEARCH
                 AND THE FRUITS THEREOF, INASMUCH AS
                 THE    SEARCH   WARRANT’S    AFFIDAVIT
                 DEPENDED UPON TAINTED INFORMATION
                 AND FAILED TO STATE PROBABLE CAUSE.



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            XXIV. AS SET FORTH IN PARAGRAPHS 15 AND 16
                  OF THE OMNIBUS PRE-TRIAL MOTION, FILED
                  OF RECORD ON MARCH 1, 2012, WHICH ARE
                  INCORPORATED HEREIN BY REFERNCE [sic],
                  AND RENEWED AT TRIAL, THE COURT ERRED
                  BY OMITTING TO PROPERLY RULE ON THE
                  SUPPRESSION      MOTION    FOR     THE
                  STATEMENTS AND TO SUPPRESS THE
                  EVIDENCE OF SUCH STATEMENTS AND THE
                  FRUITS THEREOF, INASMUCH AS, UNDER
                  THE TOTALITY OF THE CIRCUMSTANCES, THE
                  ORAL STATEMENTS WERE CUSTODIAL, AND
                  OBTAINED WITHOUT MIRANDA WARNINGS,
                  AND INVOLUNTARY.

            XXV.    THE    COURT    ERRED   BY   DENYING
                    APPELLANT’S REQUEST BOTH AT TRIAL TO
                    RE-OPEN THE CASE TO ALLOW APPELLANT
                    TO PRESENT A MATERIAL WITNESS BY
                    DENYING    APPELLANT’S POST-SENTENCE
                    REQUEST FOR A NEW TRIAL BASED UPON
                    SAID ISSUE.

            XXVI. THE COURT ERRED BY PERMITTING THE
                  COMMONWEALTH TO AMEND THE CRIMINAL
                  INFORMATION TO INCLUDE AN ADDITIONAL
                  COUNT OF AGGRAVATED ASSAULT BY
                  VEHICLE  WHILE   DUI,  A   COUNT  OF
                  POSSESSION OF SMALL AMOUNT, AND A
                  COUNT   OF   POSSESSION    OF   DRUG
                  PARAPHERNALIA AS SAID AMENDMENTS
                  CAUSED PREJUDICE TO DEFENDANT.

            XXVII. THE COURT ABUSED ITS DISCRETION AND
                   ERRED BY MISCALCULATING APPELLANT’S
                   PRIOR RECORD SCORE WITH RESPECT TO
                   APPELLANT’S     PRIOR      CONVICTIONS
                   INASMUCH AS APPELLANT ASSERTS THAT
                   THIS PRIOR RECORD SHOULD HAVE BEEN
                   CALCULATED AS A ONE (1), AND BY FAILING
                   TO GIVE PROPER CONSIDERATION TO
                   APPELLANT’S REHABILITATIVE NEEDS.

Appellant’s brief at 7-16.


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     Before addressing the multitude of issues raised on appeal, we find it

necessary to reiterate former Justice Sandra Newman’s admonishment to all

appellate advocates who labor under the misguided belief that raising as

many issues as possible constitutes effective appellate advocacy:

           The approach to appellate advocacy embarked on by
           present counsel for Appellant brings to mind the
           words of the Honorable Ruggero J. Aldisert of the
           United States Court of Appeals for the Third Circuit:

                 With a decade and a half of federal
                 appellate court experience behind me, I
                 can say that even when we reverse a
                 trial court it is rare that a brief
                 successfully demonstrates that the trial
                 court committed more than one or two
                 reversible errors. I have said in open
                 court that when I read an appellant’s
                 brief that contains ten or twelve points, a
                 presumption arises that there is no merit
                 to any of them . . . [and] it is [this]
                 presumption . . . that reduces the
                 effectiveness of appellate advocacy.

           Aldisert,  “The   Appellate  Bar:    Professional
           Competence and Professional Responsibility-A View
           From the Jaundiced Eye of the Appellate Judge,”
           11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in
           original).

           Though much quoted by members of the judiciary,
           this passage often “rings hollow,” as demonstrated
           by the present case. While we certainly understand
           the duty of the attorney to be a zealous advocate,
           we pose that conduct such as what we presently
           encounter does not advance the interests of the
           parties and, if anything, is a disservice to the client.
           See, e.g., United States v. Hart, 693 F.2d 286,
           287 (3d Cir.1982) (“[b]ecause of the inordinate
           number of meritless objections pressed on appeal,
           spotting the one bona fide issue was like finding a


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          needle in a haystack”); also Commonwealth v.
          Ellis, 534 Pa. 176, 626 A.2d 1137, 1140 (1993)
          (“[w]hile criminal defendants often believe that the
          best way to pursue their appeals is by raising the
          greatest number of issues, actually, the opposite is
          true: selecting the few most important issues
          succinctly stated presents the greatest likelihood of
          success”).    As observed by Justice Robert H.
          Jackson:

               Legal contentions, like the currency,
               depreciate through over-issue. The mind
               of an appellate judge is habitually
               receptive to the suggestion that a lower
               court committed an error.               But
               receptiveness declines as the number of
               assigned errors increases.      Multiplicity
               hints at lack of confidence in any one . . .
               [E]xperience on the bench convinces me
               that multiplying assignments of error
               will dilute and weaken a good case
               and will not save a bad one.”

          Jackson, “Advocacy Before the United States
          Supreme Court,” 25 Temple L.Q. 115, 119 (1951)
          (emphasis supplied). See also Smith v. Murray,
          477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434
          (1986) (“Th[e] process of winnowing out weaker
          arguments on appeal and focusing on those more
          likely to prevail, far from being evidence of
          incompetence, is the hallmark of effective appellate
          advocacy”); Jones v. Barnes, 463 U.S. at 745, 751-
          52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)
          (observing that “[e]xperienced advocates since time
          beyond memory emphasized the importance of
          winnowing out weaker arguments on appeal and
          focusing on one central issue if possible, or at most
          on a few key issues”); Buehl v. Vaughn, 166 F.3d
          163, 174 (3d Cir.1999) (commenting that “[o]ne
          element of effective appellate strategy is the
          exercise of reasonable selectivity in deciding which
          arguments to raise”). Though we are mindful of the
          ramifications of our decisions in capital cases, no
          circumstance gives carte blanche for the borderline


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             abuse of the legal system as represented by the
             conduct of Appellant’s present attorney in this
             matter.

Commonwealth v. Robinson, 864 A.2d 460, 479-480 n.28 (Pa. 2004),

cert. denied, Robinson v. Pennsylvania, 546 U.S. 983 (2005).

      This form of appellate advocacy is a disservice to court and client alike.

It not only creates a presumption that there are no issues of merit, it also

invites cursory review. With these thoughts in mind, we turn to the issues

on appeal.

      In his first eleven issues, appellant challenges the sufficiency of the

evidence as to each of his twelve convictions. Our standard of review is as

follows:

             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


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

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014), quoting

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa.Super. 2014) (citations

omitted; bracketed material in original).

      In Issue I, appellant challenges the sufficiency of the evidence as to

aggravated assault by vehicle while DUI. This offense is defined as follows:

            (a)   Offense       defined.--Any       person   who
                  negligently causes serious bodily injury to
                  another person as the result of a violation of
                  section 3802 (relating to driving under
                  influence of alcohol or controlled substance)
                  and who is convicted of violating section 3802
                  commits a felony of the second degree when
                  the violation is the cause of the injury.

75 Pa.C.S.A. § 3735.1(a).

      McKenna Sipes testified that Kyle Frankenberry was driving normally,

and Frankenberry testified that he had to swerve to try to avoid colliding

with appellant’s vehicle.   Trooper Bonin testified that appellant admitted

entering the opposite lane of travel. From this, jurors could conclude that

Frankenberry was driving his vehicle in the appropriate lane and that

appellant had negligently entered Frankenberry’s lane of travel. Bonin also

testified that appellant was under the influence of alcohol and incapable of

safe travel at the time of the accident. Finally, both Frankenberry and Sipes

described the continuing effects their injuries have had on their lives,

including ongoing pain when standing. Both also described their inability to



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perform athletically as they had in the past.       The Vehicle Code describes

serious bodily injury as follows:

            “Serious bodily injury.” Any bodily injury which
            creates a substantial risk of death or which causes
            serious, permanent disfigurement or protracted loss
            or impairment of the function of any bodily member
            or organ.

75 Pa.C.S.A. § 102.

      The   injuries   described    by    Frankenberry   and   Sipes   amount   to

protracted impairment of their ability to stand and perform athletically.

Therefore, the jury could have concluded that appellant was driving under

the influence, that his inebriation caused him to drive negligently, and that

his negligence resulted in serious bodily injury to two separate victims.

There was sufficient evidence to support two separate counts of aggravated

assault by vehicle while DUI.

      In Issue II, appellant challenges the sufficiency of the evidence as to

accidents involving death or personal injury while not properly licensed. This

offense is defined as follows:

            (a)   Offense defined.--A person whose operating
                  privilege was disqualified, canceled, recalled,
                  revoked or suspended and not restored or who
                  does not hold a valid driver’s license and
                  applicable endorsements for the type and class
                  of vehicle being operated commits an offense
                  under this section if the person was the driver
                  of any vehicle and caused an accident resulting
                  in injury or death of any person.

75 Pa.C.S.A. § 3742.1(a).



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      From our previous discussion, there was evidence from which the jury

could conclude that appellant caused the accident at issue and that the

victims suffered personal injury. Appellant stipulated at trial that his license

was suspended at the time of the accident.          Therefore, the evidence was

sufficient to support appellant’s conviction for accidents involving death or

personal injury while not properly licensed.

      In Issue III, appellant challenges the sufficiency of the evidence as to

possession of a small amount of marijuana for personal use.            Appellant’s

argument in this regard questions whether there was any amount of

marijuana    found   and    whether    possession     was   adequately    proven.

Trooper Bonin testified that the pipe contained a small amount of marijuana.

That is sufficient to prove that appellant possessed some amount of

marijuana.     We also find that the evidence supported a finding of

constructive possession by appellant:

             Constructive possession is a legal fiction, a pragmatic
             construct to deal with the realities of criminal law
             enforcement.       Constructive possession is an
             inference arising from a set of facts that possession
             of the contraband was more likely than not. We
             have defined constructive possession as conscious
             dominion.      We subsequently defined conscious
             dominion as the power to control the contraband and
             the intent to exercise that control.            To aid
             application, we have held that constructive
             possession may be established by the totality of the
             circumstances.

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa.Super. 2014), quoting

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012), appeal


                                      - 17 -
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denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation

omitted).

      The marijuana was found in the center console of appellant’s vehicle,

which is immediately beside and well within the reach of appellant.

Moreover, appellant was the only person in the vehicle. Clearly, appellant,

and only appellant, had conscious dominion over the marijuana. There was

sufficient evidence to support appellant’s conviction for possession of a small

amount of marijuana for personal use.

      In Issue IV, appellant challenges the sufficiency of the evidence as to

possession of drug paraphernalia.        Appellant questions whether appellant

possessed the marijuana pipe that was found.           For the reasons previously

stated, we find that the evidence was sufficient to conclude that appellant

constructively possessed the marijuana pipe.           Thus, there was sufficient

evidence    to   support   appellant’s   conviction    for   possession   of   drug

paraphernalia.

      In Issue V, appellant challenges the sufficiency of the evidence as to

DUI general impairment. Trooper Bonin testified as to the indications that

appellant was under the influence of alcohol and that he was of the opinion

that appellant was incapable of safe driving.         This is sufficient to support

appellant’s conviction for DUI general impairment.           Appellant’s argument

points to equivocating testimony by Bonin or to other evidence that

appellant may not have been under the influence. As such, the argument



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goes to the weight of the evidence and not the sufficiency. It is well settled

that in reviewing the sufficiency of the evidence, an appellate court may not

weigh the evidence and substitute its judgment for the fact-finder.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).            Finally, to the extent that

appellant’s issue questions whether he refused chemical testing, Bonin

testified that he refused and then signed a document to that effect.

      In Issue VI, appellant challenges the sufficiency of the evidence as to

habitual offenders. Appellant has abandoned this issue on appeal.

      In Issue VII, appellant challenges the sufficiency of the evidence as to

reckless driving. Reckless driving is defined as follows:

            (a)   General rule.--Any person who drives any
                  vehicle in willful or wanton disregard for the
                  safety of persons or property is guilty of
                  reckless driving.

75 Pa.C.S.A. § 3736(a).

      The testimony of Frankenberry and Sipes, as well as Bonin’s testimony

that appellant admitted entering the opposite lane of travel, is sufficient to

support appellant’s conviction for reckless driving.

      In Issue VIII, appellant challenges the sufficiency of the evidence as to

restriction on alcoholic beverages. This offense is defined as follows:

            (a)   General rule.--Except as set forth in
                  subsection (b), an individual who is an
                  operator or an occupant in a motor vehicle
                  may not be in possession of an open alcoholic
                  beverage container or consume a controlled


                                     - 19 -
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                   substance as defined in the act of April 14,
                   1972 (P.L.233, No.64), known as The
                   Controlled Substance, Drug, Device and
                   Cosmetic Act, or an alcoholic beverage in a
                   motor vehicle while the motor vehicle is
                   located on a highway in this Commonwealth.

75 Pa.C.S.A. § 3809(a) (footnote omitted).

      Trooper Bonin testified that appellant had several open beer cans in

his car.   Bonin also testified that he opened the whiskey flask and that it

contained a liquid with an odor of alcohol. This was sufficient evidence to

support appellant’s conviction for restriction on alcoholic beverages.

      In Issue IX, appellant challenges the sufficiency of the evidence as to

driving under suspension, DUI related. Appellant has abandoned this issue

on appeal.

      In Issue X, appellant challenges the sufficiency of the evidence as to

driving on roadways laned for traffic. This offense is defined as follows:

             Whenever any roadway has been divided into two or
             more clearly marked lanes for traffic the following
             rules in addition to all others not inconsistent
             therewith shall apply:

             (1)   Driving within single lane.--A vehicle
                   shall be driven as nearly as practicable
                   entirely within a single lane and shall not
                   be moved from the lane until the driver
                   has first ascertained that the movement
                   can be made with safety.

75 Pa.C.S.A. § 3309.




                                     - 20 -
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      The testimony of Frankenberry and Sipes, as well as Bonin’s testimony

that appellant admitted entering the opposite lane of travel, is sufficient to

support appellant’s conviction for driving on roadways laned for traffic.

      In Issue XI, appellant challenges the sufficiency of the evidence as to

careless driving. Careless driving is defined as follows:

            (a)   General rule.--Any person who drives a
                  vehicle in careless disregard for the safety of
                  persons or property is guilty of careless
                  driving, a summary offense.

75 Pa.C.S.A. § 3714(a).

      Again, the testimony of Frankenberry and Sipes, as well as Bonin’s

testimony that appellant admitted entering the opposite lane of travel, is

sufficient to support appellant’s conviction for careless driving.

      In Issues XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and XX, appellant

contends that various of his convictions are against the weight of the

evidence.3 We note our standard of review:

            A motion for a new trial based on a claim that the
            verdict is against the weight of the evidence is
            addressed to the discretion of the trial court.
            Commonwealth v. Widmer, 560 Pa. 308, 319, 744
            A.2d 745, 751-52 (2000); Commonwealth v.
            Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189
            (1994). 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. Widmer, 560 Pa. at 319-20,
            744 A.2d at 752. Rather, “the role of the trial judge
            is to determine that ‘notwithstanding all the facts,

3
  Appellant has abandoned on appeal the weight of the evidence claims
raised at Issues XIV and XVIII.


                                     - 21 -
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          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.’” Id. at 320, 744 A.2d at
          752 (citation omitted). 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.” Brown, 538 Pa. at 435, 648
          A.2d at 1189.

                 An appellate court’s standard of review when
          presented with a weight of the evidence claim is
          distinct from the standard of review applied by the
          trial court:

               Appellate review of a weight claim is a
               review of the exercise of discretion,
               not of the underlying question of
               whether the verdict is against the
               weight of the evidence. Brown, 648
               A.2d at 1189. Because the trial judge
               has had the opportunity to hear and see
               the evidence presented, an appellate
               court will give the gravest consideration
               to the findings and reasons advanced by
               the trial judge when reviewing a trial
               court’s determination that the verdict is
               against the weight of the evidence.
               Commonwealth v. Farquharson, 467
               Pa. 50, 354 A.2d 545 (Pa.1976). One of
               the least assailable reasons for granting
               or denying a new trial is the lower court’s
               conviction that the verdict was or was
               not against the weight of the evidence
               and that a new trial should be granted in
               the interest of justice.

          Widmer, 560 Pa. at 321-22, 744 A.2d at 753
          (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).




                                  - 22 -
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      In these issues, appellant revisits the various evidence presented on

each conviction and how certain evidence mitigates against conviction.

However, as noted in Clay, this court does not reweigh the evidence; but

rather, this court only reviews how the trial court has analyzed the weight of

the evidence. Consequently, we will not discuss the various evidence as to

each conviction, but will only review the trial court’s review.

      In its opinion, the trial court identified the correct standard by which it

was to assess the weight of the evidence (“when the jury’s verdict is so

contrary to the evidence as to shock one’s sense of justice”), and then

concluded that the jury’s verdict was consistent with the evidence.        (Trial

court opinion, 9/17/12 at 3.)    We find that the trial court acted within its

discretion.

      In Issue XXI, appellant argues that the trial court erred in failing to

sever from his trial the counts pertaining to accidents involving death or

personal injury while not properly licensed, habitual offenders, and driving

under suspension, DUI related, because proof of these crimes requires

revealing to the jury that appellant has committed prior bad acts.           Our

standard of review states, “[w]hether to join or sever offenses for trial is

within the trial court’s discretion and will not be reversed on appeal absent a

manifest abuse thereof, or prejudice and clear injustice to the defendant.”

Commonwealth v. Armstrong, 74 A.3d 228, 233 (Pa.Super. 2013),

appeal denied, 84 A.3d 1061 (Pa. 2014).



                                     - 23 -
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      We find no prejudice or clear injustice to appellant. Appellant’s license

suspension and habitual offender status were presented to the jury by way

of stipulation, and no detail of any of appellant’s prior offenses was revealed.

As for the driving under suspension, DUI related, which would improperly

reveal to the jury that appellant had previously committed DUI, this was a

summary offense tried separately by the court.

      In Issue XXII, appellant asserts that the trial court erred in failing to

suppress the fruits of Trooper Bonin’s warrantless vehicle search which

appellant contends was not supported by exigency or other basis.

            Our standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are
            correct.     Because the Commonwealth prevailed
            before the suppression court, we may consider only
            the evidence of the Commonwealth and so much of
            the evidence for the defense as remains
            uncontradicted when read in the context of the
            record as a whole. Where the suppression court’s
            factual findings are supported by the record, we are
            bound by these findings and may reverse only if the
            court’s legal conclusions are erroneous. Where . . .
            the appeal of the determination of the suppression
            court turns on allegations of legal error, the
            suppression court’s legal conclusions are not binding
            on an appellate court, whose duty it is to determine
            if the suppression court properly applied the law to
            the facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review.




                                     - 24 -
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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted), cert. denied, Jones v. Pennsylvania, 562 U.S. 832 (2010).

      We find that Trooper Bonin had probable cause to search appellant’s

car. Appellant had just been involved in a vehicular accident and appeared

to be under the influence of alcohol.        As this implicated the violation of

several offenses, Bonin had probable cause to search the car for further

evidence of DUI.   Our supreme court recently decided that Pennsylvania’s

automobile exception to the warrant requirement was in accord with current

federal jurisprudence; that is, that only probable cause and no exigency

beyond the inherent mobility of a motor vehicle is required to permit a

warrantless vehicle search.   Commonwealth v. Gary, 91 A.3d 102 (Pa.

2014).4 The trial court properly declined to suppress the evidence here.

      In Issue XXIII, appellant argues that the search warrant that was

subsequently granted for his car was not supported by probable cause and

the evidence should have been suppressed. Our analysis of the preceding

issue leads us to conclude that there is no merit here.



4
  The decision in Gary was decided by a six-justice court. In an Opinion
Announcing the Judgment of the Court, former Justice McCaffery, speaking
for former Chief Justice Castille and Justice Eakin, adopted the federal
automobile exception for warrantless vehicle searches. Chief Justice Saylor
wrote a Concurring Opinion that joined the lead Opinion in adopting the
federal rule, but expressed concerns with the adoption of a bright line rule.
Justice Todd wrote a Dissenting Opinion that was joined by Justice Baer.
Former Justice Orie Melvin did not participate.


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        In Issue XXIV, appellant claims that his on-the-scene statement to

Trooper Bonin that he had three or four beers and his later statement to his

mother that he had five or six beers should have been suppressed as he was

in custody at the time of each statement and had not been given Miranda

warnings.5

             Statements made during custodial interrogation are
             presumptively involuntary, unless the accused is first
             advised of her Miranda rights. Commonwealth v.
             DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001),
             appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).
             Custodial interrogation is “questioning initiated by
             law enforcement officers after a person has been
             taken into custody or otherwise deprived of [her]
             freedom of action in any significant way.” Miranda
             [v. Arizona], supra [384 U.S. 436] at 444, 86 S.Ct
             [1602] at 1612, 16 L.Ed.2d [694] at 706 [(1966)].
             “[T]he Miranda safeguards come into play whenever
             a person in custody is subjected to either express
             questioning    or    its   functional    equivalent.”
             Commonwealth v. Gaul, 590 Pa. 175, 180, 912
             A.2d 252, 255 (2006), cert. denied, 552 U.S. 939,
             128 S.Ct. 43, 169 L.Ed.2d 242 (2007).

Commonwealth v. Kunkle, 79 A.3d 1173, 1179-1180 (Pa.Super. 2013)

appeal      denied,         A.3d          (Pa.    April   22,   2015),   quoting

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008).

        First, appellant was not in custody at the time he made his statement

at the accident scene. Trooper Bonin had just arrived at the accident scene

and was not even aware yet that any crime had occurred when he asked

appellant how much he had had to drink.          Second, it is unclear from the


5
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                     - 26 -
J. S09001/15


testimony whether Trooper Bonin had yet arrested appellant when he made

the second statement to his mother at their residence, but there was no

reason to suppress the second statement either.            Appellant was not

responding to a question from Bonin or any other police officer, but either

made the statement spontaneously, or made it upon inquiry from his

mother. (Notes of testimony, 3/6/12 at 193-194.) Thus, even if appellant

was in custody at the time, he was not being subjected to police

interrogation. The statements were properly not suppressed.

      In Issue XXV, appellant contends that the trial court erred in failing to

permit the record to be re-opened so that the defense could present an

unsubpoened defense witness who appeared at court after the record had

been closed. This witness was Tim College who would have testified that on

the day of the accident appellant met him at a bar where they each

consumed one beer and then went to College’s residence where they each

consumed another beer.         (Notes of testimony, 3/7/12 at 197-198.)

Apparently, appellant was with Mr. College until 4:30 p.m., and the accident

occurred at 7:30 p.m. (Id. at 198.)

      “Under the law of this Commonwealth a trial court has the discretion to

reopen a case for either side, prior to the entry of final judgment, in order to

prevent a failure or miscarriage of justice.” Commonwealth v. Baldwin, 8

A.3d 901, 903 (Pa.Super. 2010), affirmed, 58 A.3d 754 (Pa. 2012), quoting

Commonwealth v. Tharp, 575 A.2d 557, 558-559 (Pa. 1990). We find no



                                     - 27 -
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abuse of discretion in the trial court’s choice not to re-open the record.

College’s testimony carried little exculpatory value because he could not

account for appellant’s activity between 4:30 and 7:30, a three-hour period

during which appellant had sufficient time to consume a large amount of

alcohol.

      In Issue XXVI, appellant asserts that the trial court erred in permitting

the Commonwealth to amend the criminal information to add a second count

of aggravated assault by vehicle while DUI, possession of a small amount of

marijuana, and possession of drug paraphernalia.

                  Relief is only proper where the amendment
            prejudices the defendant. See [Commonwealth v.
            Sinclair, 897 A.2d 1218 (Pa.Super.2006)] at 1223.
            A court must consider a number of factors in
            determining whether an amendment results in
            prejudice:

                  (1) whether the amendment changes the
                  factual scenario supporting the charges;
                  (2) whether the amendment adds new
                  facts   previously   unknown    to    the
                  defendant; (3) whether the entire factual
                  scenario was developed during a
                  preliminary hearing; (4) whether the
                  description of the charges changed with
                  the amendment; (5) whether a change in
                  defense strategy was necessitated by the
                  amendment; and (6) whether the timing
                  of the Commonwealth’s request for
                  amendment allowed for ample notice and
                  preparation.

Commonwealth v. Veon, 109 A.3d 754, 768 (Pa.Super. 2015), quoting

Sinclair.



                                    - 28 -
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      We see no prejudice to appellant.      The order amending the criminal

information was dated September 29, 2011, and was entered October 4,

2011. Trial did not begin until March 6, 2012; thus, appellant had over five

months to prepare for these new charges. Moreover, as to the most serious

charge, aggravated assault by vehicle while DUI, appellant was already on

notice that he had to prepare a defense to an initial count of this offense,

and any defense to this additional count would likely be nearly identical to

the initial count. We see no merit here.

      In Issue XXVII, appellant contends that the trial court miscalculated

his prior record score and that his sentence is excessive by failing to give

proper consideration to his rehabilitative needs.     Preliminarily, we observe

that appellant has abandoned on appeal the issue pertaining to the

calculation of his prior record score; hence, we are reviewing the

discretionary aspects of appellant’s sentence only.

            Such a challenge must be considered a petition for
            permission to appeal. Commonwealth v. Hoch,
            936 A.2d 515, 518 (Pa.Super. 2007). The Rules of
            Appellate Procedure mandate that, to obtain review
            of the discretionary aspects of a sentence, the
            appellant must include in his brief a Concise
            Statement of Reasons Relied Upon for Allowance of
            Appeal. See Pa.R.A.P. 2119(f). This statement
            must “raise a substantial question as to whether the
            trial judge, in imposing sentence, violated a specific
            provision of the Sentencing Code or contravened a
            ‘fundamental norm’ of the sentencing process.”
            Commonwealth v. Flowers, 950 A.2d 330, 331
            (Pa.Super. 2008).

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011).


                                    - 29 -
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      Appellant has included in his brief the requisite concise statement in

which he asserts that the sentence imposed was so manifestly excessive as

to constitute too severe a punishment. We note that this has been held to

raise a substantial question.      Id.    Thus, we will review the discretionary

aspects of appellant’s sentence.

      The trial court announced at sentencing that it had a pre-sentence

report. (Notes of testimony, 5/7/12 at 3.) As such, the court is presumed

to have considered all relevant sentencing factors:

            Where pre-sentence reports exist, we shall continue
            to presume that the sentencing judge was aware of
            relevant information regarding the defendant’s
            character and weighed those considerations along
            with mitigating statutory factors. A pre-sentence
            report constitutes the record and speaks for itself.
            In order to dispel any lingering doubt as to our
            intention of engaging in an effort of legal purification,
            we state clearly that sentencers are under no
            compulsion to employ checklists or any extended or
            systematic definitions of their punishment procedure.
            Having been fully informed by the pre-sentence
            report, the sentencing court’s discretion should not
            be disturbed. This is particularly true, we repeat, in
            those circumstances where it can be demonstrated
            that the judge had any degree of awareness of the
            sentencing considerations, and there we will
            presume also that the weighing process took place in
            a meaningful fashion. It would be foolish, indeed, to
            take the position that if a court is in possession of
            the facts, it will fail to apply them to the case at
            hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

      Thus, there is no merit to appellant’s assertion that the court did not

consider his rehabilitative needs in imposing his sentence.       Moreover, the


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trial court stated that because of positive factors in appellant’s behalf, it

would not impose an aggravated range sentence.         (Notes of testimony,

5/7/12 at 58.)    However, the court also reviewed appellant’s horrendous

driving record, which included at least one prior DUI, and concluded that any

sentence less than one at the top of the standard range would depreciate

the seriousness of the victims’ injuries and the offenses involved.   (Id. at

58-59.) As such, we find no abuse of discretion in appellant’s sentence.

     Accordingly, having found no merit to the issues on appeal, we will

affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/16/2015




                                   - 31 -
