Com. v. Heine, M.

Opinion

J-A09021-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL R. HEINE : : Appellant : No. 527 WDA 2025

Appeal from the Judgment of Sentence Entered November 19, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000727-2023

BEFORE: NICHOLS, J., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 5, 2026

Michael R. Heine appeals from the judgment of sentence entered

following his convictions for two counts of driving under the influence (general

impairment) (“DUI”) and one count of reckless driving.1 Heine challenges the

sufficiency of the evidence and argues his second DUI sentence violates double

jeopardy. We find the sufficiency challenges meritless but will vacate Heine’s

second DUI sentence.

The trial court provided the following recitation of the facts:

On September 8, 2022, at approximately 6:00 PM, Robert Thorhauer was riding his motorcycle with a friend in Shaler Township when they were cut off by a black Cadillac SUV driven by the defendant, Michael Heine. Now travelling behind the SUV, Mr. Thorhauer observed the vehicle driving erratically. Specifically, he saw the SUV cross the center line and make contact with a parked vehicle while making a turn. The SUV did not stop after this contact. The driver and only occupant of the ____________________________________________

1 See 75 Pa.C.S.A. §§ 3802(a)(1) and 3736(a), respectively. J-A09021-26

vehicle was visible through the rear glass of the SUV. At some point, Mr. Heine was observed to nod off behind the wheel.

Mr. Thorhauer called 911 to report the incident. He and his friend lost sight of the SUV for approximately two minutes but eventually got behind it again. They were behind the SUV for approximately 30 minutes when Mr. Thorhauer saw the SUV make a sharp right-hand turn into a driveway in a manner that caused him to believe the defendant had crashed the vehicle. When the police arrived a few minutes later, Mr. Thorhauer related what he had seen and identified Mr. Heine as the driver of the SUV that had cut him off. The parties had never met before that day.

Sergeant Dennis Gapsky of the Shaler Township Police Department was dispatched to investigate the erratic driver/hit and run. When the sergeant arrived at the 1300 block of Sharps Hill Road he encountered several other police officers who had responded to the call, Mr. Thorhauer and another witness, as well as Mr. Heine. Sergeant Gapsky detected an odor of an alcoholic beverage coming from Mr. Heine’s breath and observed bloodshot eyes and saw him to stagger as he moved. Mr. Heine also had slurred speech.

Mr. Heine was evasive when asked about driving, responding that he was in his driveway and he denied having anything to drink despite the observation of the odor of an alcoholic beverage on his breath. Mr. Heine was agitated and uncooperative, and when asked six (6) or seven (7) times to perform standard field sobriety tests, he refused. Based on his training, education and experience as well as the information about his driving received from Mr. Thorhauer, and his own observations of Mr. Heine, Sergeant Gapsky formed the opinion that the driver was under the influence of alcohol to a degree that rendered him unsafe to drive.

Mr. Heine was placed under arrest and transported to the Shaler Police station. He was placed in the back seat of sergeant Gapsky’s vehicle and during the transport he was rambling to himself and later fell asleep. At approximately 7:30 PM, he refused to submit to a breath test after Sergeant Gapsky read form DL-26 to him.

Trial Court Opinion, 8/29/25, at 1-2.

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Count 1 of the Information charged Heine with DUI and refusal to submit

to breath or chemical testing. See 75 Pa.C.S.A. §§ 3802(a)(1) and

3804(c)(1). Count 2 of the Information again charged Heine with DUI but

without the sentencing enhancement for refusing testing. Count 3 charged

Heine with reckless driving.2

Following a bench trial,3 Heine was convicted of the above offenses by

the court. The court sentenced Heine on Count 1 to 60 days of electric home

monitoring and a concurrent term of six months’ probation. The court also

ordered him to complete alcohol highway safety school, to get a drug and

alcohol assessment if so ordered by probation, and to pay a fine. On Count 2,

the court sentenced Heine to “a determination of guilty without further

penalty.” Order of Sentence, 11/19/24, at 1. The court imposed the same

sentence (“A determination of guilty without further penalty”) on Count 3.

Heine filed post-sentence motions, which were denied by operation of law.4

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2 The Information also charged Heine with driving on right side of roadway and stop signs and yield signs. See 75 Pa.C.S.A. §§ 3301(a) and 3323(b). The Commonwealth later withdrew these charges.

3 Heine filed a motion to suppress, which was denied.

4 The post-sentences motions were denied by operation of law when the trial

court failed to issue a ruling within 120 days of the filing. See Pa.R.Crim.P. 720(B)(3)(a). The clerk of courts entered an order two days later, notifying the parties that the motions were denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(c). Heine filed a timely notice of appeal within 30 days of the entry of the order. See Pa.R.Crim.P. 720(A)(2)(b); cf. Commonwealth v. Carter, 122 A.3d 388, 391 (Pa.Super. 2015) (holding appeal period did not begin to run where clerk of court failed to issue order stating post-sentence motions had been denied by operation of law).

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Heine appealed. He raises three issues:

I. Whether the evidence was sufficient to convict Mr. Heine of Reckless Driving where the Commonwealth failed to prove beyond a reasonable doubt that he drove with a willful or wanton disregard for the safety of persons or property, creating a substantial and unjustifiable risk of harm?

II. Whether the evidence was sufficient to sustain both of Mr. Heine’s convictions for DUI—General Impairment where the Commonwealth failed to prove beyond a reasonable doubt that he engaged in more than one instance of driving?

III. Whether the sentence of “a determination of guilty without further penalty” imposed for Mr. Heine’s second conviction of DUI—General Impairment is an illegal sentence that must be vacated?

Heine’s Br. at 5 (suggested answers omitted).

In his first issue, Heine argues there was insufficient evidence to support

his conviction for reckless driving. He asserts the testimony that he “cut off

the motorcyclists, crossed the center line, clipped a parked vehicle, and

‘dip[ped]’ his head while driving,” does not establish that he consciously

disregarded a substantial risk of injury. Id. at 17 (citing Commonwealth v.

Greenberg, 885 A.2d 1025, 1027 (Pa.Super. 2005)) (footnoted omitted). He

further posits there was insufficient evidence that he fell asleep at the wheel.

He contends such a finding was based on Thorhauer’s testimony that he saw

that Heine’s “head went down” for some undetermined amount of time, while

looking at Heine’s image in the rear-view mirror through Heine’s tinted rear

window. Id. at 17-18. Heine also argues that the fact he was convicted of DUI

does not indicate that he was driving recklessly. He highlights that DUI does

not establish reckless driving per se. Id. at 16, 18 (citing Commonwealth v.

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Mastromatteo, 719 A.2d 1081, 1082-84 (Pa.Super. 1998) and

Commonwealth v. Hutchins, 42 A.3d 302, 312 (Pa.Super. 2012)).

We employ the following standard of review for a sufficiency challenge:

When reviewing a challenge to the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. This standard applies equally where the Commonwealth’s evidence is circumstantial. In conducting this analysis, we may not substitute our judgment for that of the factfinder. Additionally, the Commonwealth’s evidence need not preclude every possibility of innocence. The factfinder is free to believe all, part, or none of the evidence.

Commonwealth v. Griffith, 305 A.3d 573, 576–77 (Pa.Super. 2023)

(internal quotation marks and citations omitted).

The reckless driving statute prohibits a person from driving a vehicle “in

willful or wanton disregard for the safety of persons or property[.]” 75

Pa.C.S.A. § 3736(a). The Commonwealth must prove that the driver “not only

grossly deviate[d] from ordinary prudence[,] but also create[d] a substantial

risk that property damage or personal injury w[ould] follow,” and that “the

driving reflect[ed] a conscious disregard for the danger being created by the

reckless driving.” Greenberg, 885 A.2d at 1029-30 (emphasis omitted); see

also Commonwealth v. Sanders, 259 A.3d 524, 532 (Pa.Super. 2021) (en

banc). While “evidence of intoxication does not establish recklessness per se,”

it “can be used as a factor to prove recklessness” when combined with other

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evidence. Commonwealth v. Sitler, 144 A.3d 156, 166 (Pa.Super. 2016)

(en banc).

Here, the trial court did not convict Heine for reckless driving solely

because it found he drove while intoxicated. Rather, in addition to the

testimony going to Heine’s intoxication, the Commonwealth presented

testimony that Heine cut off the path of two motorcyclists; crossed the yellow

center line; and struck a parked car. Furthermore, Thorhauer testified, “At one

point in time, we had seen him fall asleep while driving. Or sorry, that his head

went down. You could see everything through the window.” N.T., 8/23/24, at

42. Thorhauer testified that he could see through the rear glass window of

Heine’s SUV. Id. at 78.

Viewed in the light most favorable to the Commonwealth as verdict-

winner, this evidence was sufficient for the fact-finder to conclude that Heine

grossly deviated from a reasonable standard of conduct, created a substantial

risk that he would cause a traffic accident, and was aware at the time of the

unjustifiable danger his driving created. See, e.g., Commonwealth v. Jeter,

937 A.2d 466, 469 (Pa.Super. 2007) (rejecting sufficiency challenge to

reckless driving conviction where defendant’s car “weaved in and out of the

roadway for several miles,” “there were other drivers on the roadway at that

time,” the defendant was intoxicated, and he “ultimately lost control of his

car, striking the center barrier with enough force to blow out his front tire”).

In his second issue, Heine argues there was insufficient evidence to

sustain two convictions for DUI. He argues that one of his two convictions was

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impermissibly based solely on his refusal to submit to a breathalyzer test,

which is not an element of the offense of DUI, but a statutory sentencing

enhancement. Heine’s Br. at 22 (citing Commonwealth v. Mobley, 14 A.3d

887, 893 (Pa.Super. 2011)), 24. He contends subjecting him to two DUI

convictions for a single offense violates double jeopardy. Id. at 23-24 (citing

Ball v. U.S., 470 U.S. 856, 861 (1985)).

The Commonwealth argues Heine’s challenge to the sufficiency of the

evidence is waived by his failure to raise it in his Rule 1925(b) statement. See

Commonwealth’s Br. at 18-19. We agree.

Rule of Appellate Procedure 1925(b) requires the appellant to file “a

concise statement of the errors complained of on appeal,” when so ordered

by the court. Pa.R.A.P. 1925(b). The statement must “concisely identify each

error that the appellant intends to assert with sufficient detail to identify the

issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Each issue “will be

deemed to include every subsidiary issue that was raised in the trial court[.]”

Pa.R.A.P. 1925(b)(4)(v). However, the appellant must “delineate clearly the

scope of claimed constitutional errors on appeal.” Id. Any issue not raised in

the Rule 1925(b) statement is waived. Pa.R.A.P. 1925(b)(4)(vii).

Rule 1925(b) “is a crucial component of the appellate process because

it allows the trial court to identify and focus on those issues the parties plan

to raise on appeal.” Commonwealth v. Bonnett, 239 A.3d 1096, 1106

(Pa.Super. 2020) (citation omitted); see also Commonwealth v. Parrish,

224 A.3d 682, 700 (Pa. 2020) (discussing importance of Rule 1925(b)). Where

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the statement is too vague to allow the court to identify the issues, those

issues are waived. Bonnett, 239 A.3d at 1106.

Here, Heine asserts he raised this issue in his Rule 1925(b) statement

by stating the following:

The evidence was insufficient to convict Mr. Heine of both counts of DUI—General Impairment where the Commonwealth failed to prove, beyond a reasonable doubt, that Mr. Heine was incapable of safely operating a motor vehicle.

Concise Statement of Errors Complained of on Appeal, 7/7/25, at 4

(unpaginated). Heine therefore raised whether the Commonwealth proved he

“was incapable of safely operating a motor vehicle.” Id. He did not raise the

separate question of whether the evidence was insufficient to convict him for

two counts of DUI, on double jeopardy grounds.5

Furthermore, Heine did not raise the issue in the trial court. See

Pa.R.A.P. 302(a). A challenge to a conviction on double jeopardy grounds

must be preserved. See Commonwealth v. Hill, 238 A.3d 399, 408-09 (Pa.

2020) (citing Commonwealth v. Spruill, 80 A.3d 453, 461 (Pa. 2013)).

Heine’s second issue is waived.

In his third issue, Heine argues his sentence of “a determination of guilty

without further penalty” on his second DUI conviction violates double

jeopardy. Heine’s Br. at 26 (citing Commonwealth v. Farrow, 168 A.3d 207,

215 (Pa.Super. 2017), disapproved on other grounds by Hill, 238 A.3d at 409

n.10). He contends that where two convictions merge for sentencing, a ____________________________________________

5 As a result, the trial court did not address this issue in its opinion.

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sentence of “no further penalty” must be vacated. Id. at 27-29 (citing

Commonwealth v. Given, 244 A.3d 508, 511-12 (Pa.Super. 2020),

Commonwealth v. Westlake, 295 A.3d 1281, 1289 (Pa.Super. 2023), and

Commonwealth v. Burton, No. 1468 WDA 2017, 2019 WL 3064632, at *3-

7 (Pa.Super. filed July 12, 2019) (unpublished mem.)). Heine argues that

here, both of his DUI convictions arose from the same criminal act, and

therefore should have resulted in one conviction and one sentence.

The Commonwealth argues Heine waved his double jeopardy challenge

to his second DUI conviction. It offers no argument regarding the legality of

the sentence of “determination of guilty without further penalty” imposed on

Count 2.

Unlike a challenge to the sufficiency of the evidence, a challenge to the

legality of a sentence is not subject to Rule 1925(b) waiver. Commonwealth

v. Foster, 960 A.2d 160, 163 (Pa.Super. 2008), aff'd, 17 A.3d 332 (Pa. 2011);

see also Commonwealth v. Hodges, 193 A.3d 428, 432 (Pa.Super. 2018).

Because a claim that a sentence violates double jeopardy implicates the

legality of the sentence, it may be raised for the first time on appeal. See

Commonwealth v. Prinkey, 277 A.3d 554, 563 (Pa. 2022) (citing Hill, 238

A.3d at 409).6

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6 The Double Jeopardy Clause of the federal constitution provides, “No person

shall be . . . subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This applies to the states through the Fourteenth Amendment. See Hill, 238 A.3d 401 n.1.

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Our decision is controlled by Commonwealth v. Hill. In that case, like

here, the defendant was subjected to two DUI convictions for single event,

with the one of the convictions based on a sentencing enhancement for breath

or chemical testing refusal. And, like here, the court imposed a sentence of

“determination of guilt without further penalty” on the second conviction. Hill,

238 A.3d at 410. On appeal, as in the case before us, the defendant argued

the second conviction and the second sentence violated double jeopardy.

The Supreme Court found that the appellant waived his challenge to the

second conviction by failing to raise it before the trial court.7 Id. at 410.

However, it determined that the second DUI sentence violated the statutory

sentencing scheme of 75 Pa.C.S.A. § 3804, and vacated it. Id. at 411.8 The

Court then determined that “any further penalty for that act would result in a

violation of the federal double jeopardy clause.” Id. Therefore, it did not

remand the case for resentencing, “acknowledge[ing] the curious nature of

this outcome, i.e., a conviction without a sentence.” Id. Our Court faced a

similar situation in Commonwealth v. Westlake, and, in accordance with

Hill, vacated the sentence of “no further penalty” on a second DUI conviction

imposed for a single offense. 295 A.3d at 1289.

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7 The Court disapproved of this Court’s decision to vacate similar convictions

in Farrow. Hill, 238 A.3d at 405 n.5, 409 n.10.

8The Court did not vacate the sentence on double jeopardy grounds, as a non-constitutional basis for resolving the case was available. Hill, 238 A.3d at 410.

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Consistent with the foregoing, we will not vacate the underlying

conviction, finding that issue waived. We hereby vacate the sentence of

“Determination of guilty without further penalty” on Count 2, as this is not

among the statutory penalties for a DUI conviction. See 75 Pa.C.S.A. § 3804.

We do not remand for the imposition of another sentence on Count 2, as doing

so would violate double jeopardy.

Sentence on Count 2 vacated. Judgment of sentence on remaining

counts affirmed. Jurisdiction relinquished.

DATE: 8/5/2026

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