Com. v. Davis, J.

• Court: Superior Court of Pennsylvania
• Decided: April 9, 2015
• Docket: 1849 MDA 2013
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JEFF L. DAVIS

Appellant No. 1849 MDA 2013

Appeal from the Judgment of Sentence February 27, 2012 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000396-2011 CP-01-CR-0000544-2011

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED APRIL 09, 2015

Appellant, Jeff L. Davis, appeals from the judgment of sentence

entered by the Honorable Thomas R. Campbell, Court of Common Pleas of

Adams County, after a jury convicted Davis of driving under the influence

(“DUI”) and resisting arrest. After careful review, we affirm the convictions,

but vacate the sentence and remand for resentencing.

Davis was involved in a single vehicle accident on April 9, 2011.

Officer Chad Topper of the Cumberland Township Police Department

responded to the scene and observed that Davis, who was sitting in the

driver’s seat of the vehicle, was the only person present. When the window

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* Former Justice specially assigned to the Superior Court. J-A22015-14

of the vehicle was down, Officer Topper observed a strong odor of alcohol

coming from the vehicle. After awakening Davis, Officer Topper noticed that

Davis’s speech was slurred.

Officer Topper believed that Davis was intoxicated and prepared to

arrest Davis. However, Davis became combative, and refused to comply

with Officer Topper’s directions. Consequently, Officer Topper requested

back up before proceeding with Davis. Other officers who responded to

Officer Topper’s request for back up all testified that they also believed that

Davis was severely intoxicated based upon their own observations.

After placing Davis under arrest, Officer Topper advised Davis that he

was being transported to a local hospital for blood testing. Davis indicated

that he did not consent to the test, and continued to be combative with

Officer Topper. After Officer Topper finished reading the DL-26 implied

consent form to Davis, Davis refused to sign the form. Davis was

subsequently charged with DUI – general impairment with a finding of

implied consent refusal, and one count of resisting arrest. After the jury

convicted him on both counts, the trial court sentenced Davis to 60 months

in an intermediate punishment program. This timely appeal followed.

On appeal, Davis raises two arguments for our review. First, he

contends that his convictions were not supported by sufficient evidence, or

alternatively, that they were against the weight of the evidence. The

argument section of Davis’s appellate brief under this argument consists of a

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single paragraph that sets forth our standard of review for claims of

insufficiency of the evidence. See Appellant’s Brief, at 9. No authority is

cited for his argument on the weight of the evidence. Nor is there any

attempt to apply the cited authority for sufficiency of the evidence to facts

and circumstance of this case. Further, there is no attempt to identify any

specific element that was not established by the evidence presented by the

Commonwealth at trial. As Davis has not made even a rudimentary effort at

presenting an argument on the sufficiency or weight of the evidence, we find

these issues waived. See Commonwealth v. Veon, ___ A.3d ___, ___,

2015 WL 500887, *15 (Pa. Super., filed February 6, 2015)

In his second argument, Davis asserts that the sentence imposed by

the trial court was illegal.1 In Commonwealth v. Musau, 69 A.3d 754 (Pa.

Super. 2013),2 the defendant was convicted of DUI. As he had a prior DUI

conviction and because he refused chemical testing, the trial court in Musau ____________________________________________

1 While Davis includes a Pa.R.A.P. 2119(f) statement in his brief and argues that the trial court abused its discretion by imposing an excessive sentence, he also argues that the sentence imposed “exceeded the statutory maximum[.]” Appellant’s Brief, at 8. 2 On October 29, 2014, the Governor signed Act 189 of 2014 into law (S.B. 1239, Session of 2014, Printer’s No. 2396). This is an Act amending various provisions of the Motor Vehicle Code, 75 Pa.C.S.A., and in particular Section 3803(a), the section at issue in Musau. Act 189 amends Section 3803(a) by changing “Notwithstanding the provisions of” to “Except as provided in.” Section 4(1)(ii) of Act 189, states that the amendment to §3803(a) shall take effect immediately, meaning on October 29, 2014. Since Davis’s sentence was entered prior to October 29, 2014, we apply the prior version of the statute.

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graded his offense as a first-degree misdemeanor pursuant to 75 Pa.C.S.A. §

3803(b)(4). As a result, the defendant was sentenced according to the

sentencing guidelines for a first-degree misdemeanor to a period of 90 days

to five years’ incarceration. See id., at 756. This Court found that such a

sentence was illegal because it exceeded the statutory maximum of six

months incarceration. See id.

In the present case, the trial court’s sentence of 60 months in

intermediate punishment is likewise illegal. See 42 Pa.C.S.A. § 9763(a) (the

term of county intermediate punishment imposed cannot exceed the

maximum term for which the defendant could be imprisoned) The

Commonwealth urges this Court to ignore Musau due to the Supreme Court

of Pennsylvania’s grant of review of this issue in Commonwealth v.

Mendez, 71 A.3d 250 (Pa. 2013). However, the Supreme Court has

recently dismissed the appeal in Mendez as having been improvidently

granted. See 2015 WL 1421402 (Pa., March 30, 2015). As such, the

opinion of this Court in Musau remains binding law. We therefore vacate

the judgment of sentence and remand for re-sentencing.

Convictions affirmed. Judgment of sentence vacated and remanded

for proceedings consistent with this memorandum. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/9/2015

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