J-A01040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ETHAN DANIEL MAIHLE, : : Appellant : No. 1040 WDA 2016
Appeal from the Judgment of Sentence June 28, 2016 in the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000694-2015
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 19, 2017
Ethan Daniel Maihle (Appellant) appeals from the judgment of
sentence imposed on June 28, 2016, following his convictions for driving
under the influence of alcohol or a controlled substance (DUI)—general
impairment, DUI—high rate of alcohol, and one violation of the motor vehicle
code governing general lighting requirements—headlamps, 75 Pa.C.S. §
4303 (section 4303). We affirm.
The charges in this matter stem from an incident that occurred at
approximately 8:40 in the evening of May 14, 2015. Chief Thomas S.
Schwab of the City of Parker Police Department observed a pickup truck,
later determined to be driven by Appellant, swerving within its lane before
pulling into a parking lot. Chief Schwab further observed that the truck’s
headlights were not illuminated, although the fog lights and daytime running
*Retired Senior Judge assigned to the Superior Court. J-A01040-17
lights were turned on. After he was pulled over, Appellant submitted to field
sobriety tests and, ultimately, was placed under arrest for DUI, and the
summary offenses of careless driving and violating section 4303. A blood
test later showed that Appellant’s blood alcohol concentration (BAC) was
0.137%.
On December 7, 2015, Appellant filed an omnibus pretrial motion to
suppress, raising a single suppression issue: the charges against him should
be dismissed because a constable involved in his arrest “did not have the
authority to enforce motor vehicle laws.” Appellant’s Omnibus Pretrial Motion
to Suppress, 12/7/2015, at 1 (unnumbered). The motion also included a
petition for writ of habeas corpus. Appellant’s argument as to that portion of
the motion, in its entirety, is as follows. “It is believed and averred that the
testimony provided by [the arresting officers] did not meet the standard
required (prima facie case) at the Preliminary Hearing and cannot be
sufficient therefore.” Id. at 2 (unnumbered).
A hearing was held and, by order dated February 19, 2016, the trial
court determined that the Commonwealth had not met its burden of proof
with respect to the summary offense of careless driving and dismissed that
charge. However, the court denied Appellant’s motion in all other respects.
In denying Appellant’s petition for writ of habeas corpus with respect to
section 4303, the trial court took judicial notice, sua sponte, of the time of
sunset on the night at issue. Trial Court Opinion, 2/19/2016, at 5 n.1.
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On May 2, 2016, this matter proceeded to a non-jury trial as to the
remaining three charges. During trial, the Commonwealth presented in its
case-in-chief a document from the U.S. Naval Observatory’s Astronomical
Applications Department which stated that sunset in Parker on May 14,
2015, occurred at 8:29 p.m. N.T., 5/2/2016, at 12. The trial court admitted
this evidence over Appellant’s objection. Id.
On May 3, 2016, the trial court found Appellant guilty of two counts of
DUI and one violation of section 4303. On June 28, 2016, Appellant was
sentenced. The trial court determined that the two DUI convictions merged
and imposed a term of incarceration of not less than 45 days nor more than
6 months at the greater charge, DUI—high rate of alcohol. The court
imposed a fine, costs and fees for the section 4303 violation. Appellant did
not file post-sentence motions, but timely filed a notice of appeal. Both
Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.
Appellant raises three issues for this Court’s review, which we have
reordered for ease of disposition.
I. Whether the honorable trial court erred in failing to grant Appellant’s omnibus pretrial motion in the nature of a motion to dismiss or writ of habeas corpus?
II. Whether the [trial] court erred in taking judicial notice of the time of sunset in Parker, Pennsylvania on the date of the alleged offense Thursday, May 14, 2015?
III. Whether [section] 4303(a) is unconstitutionally vague?
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Appellant’s Brief at 4 (suggested answers and unnecessary capitalization
omitted).1
Appellant first contends that the trial court erred in denying his pretrial
motion for writ of habeas corpus. It is well-established that an accused may
challenge the sufficiency of the Commonwealth’s evidence at the pretrial
stage through a petition for a writ of habeas corpus. Commonwealth v.
Hetherington, 331 A.2d 205 (Pa. 1975). However, the failure to establish a
prima facie case at a hearing on a petition for writ of habeas corpus is
immaterial when, at trial, the Commonwealth satisfies its burden by proving
the offense beyond a reasonable doubt. Commonwealth v. Ricker, 120
A.3d 349, 353 (Pa. Super. 2015) (citation omitted) (holding that “errors at a
preliminary hearing regarding the sufficiency of the evidence are considered
harmless if the defendant is found guilty at trial”); see also
Commonwealth v. Troop, 571 A.2d 1084 (Pa. Super. 1990) (noting that
once a defendant has been convicted at trial, any defect in the preliminary
hearing has been satisfied).
Here, Appellant proceeded to trial where the Commonwealth presented
evidence and the trial court, sitting as factfinder, determined that the
evidence was sufficient to convict him of all charges. Accordingly, Appellant
is not, at this juncture, entitled to relief on his challenge to the
1 The issues included in Appellant’s statement of questions involved are identical to those raised in his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
-4- J-A01040-17
Commonwealth’s establishment of a prima facie case at the hearing on
Appellant’s petition for writ of habeas corpus. Thus, we find Appellant’s first
issue to be moot.
In his second issue, Appellant argues that the trial court erred in
taking judicial notice of the time of sunset on the date of the alleged offense.
Appellant’s Brief at 22-27. Specifically, Appellant contends that, absent the
trial court’s decision to sua sponte take judicial notice of this fact, the
Commonwealth was unable to make a prima facie case that section 4303
had been violated, rendering illegal the vehicle stop and Appellant’s
subsequent arrest. Id.
Based on our review of the record, the court took judicial notice only in
the opinion issued following the hearing on Appellant’s petition for writ of
habeas corpus. Trial Court Opinion, 2/19/2016, at 5 n.1. At trial, the
Commonwealth submitted, and the trial court accepted as evidence,
information regarding the time of sunset. Although Appellant objected to
the admission of this evidence, he does not challenge on appeal any errors
that occurred at trial, focusing instead on the court’s earlier decision to take
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J-A01040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ETHAN DANIEL MAIHLE, : : Appellant : No. 1040 WDA 2016
Appeal from the Judgment of Sentence June 28, 2016 in the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000694-2015
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 19, 2017
Ethan Daniel Maihle (Appellant) appeals from the judgment of
sentence imposed on June 28, 2016, following his convictions for driving
under the influence of alcohol or a controlled substance (DUI)—general
impairment, DUI—high rate of alcohol, and one violation of the motor vehicle
code governing general lighting requirements—headlamps, 75 Pa.C.S. §
4303 (section 4303). We affirm.
The charges in this matter stem from an incident that occurred at
approximately 8:40 in the evening of May 14, 2015. Chief Thomas S.
Schwab of the City of Parker Police Department observed a pickup truck,
later determined to be driven by Appellant, swerving within its lane before
pulling into a parking lot. Chief Schwab further observed that the truck’s
headlights were not illuminated, although the fog lights and daytime running
*Retired Senior Judge assigned to the Superior Court. J-A01040-17
lights were turned on. After he was pulled over, Appellant submitted to field
sobriety tests and, ultimately, was placed under arrest for DUI, and the
summary offenses of careless driving and violating section 4303. A blood
test later showed that Appellant’s blood alcohol concentration (BAC) was
0.137%.
On December 7, 2015, Appellant filed an omnibus pretrial motion to
suppress, raising a single suppression issue: the charges against him should
be dismissed because a constable involved in his arrest “did not have the
authority to enforce motor vehicle laws.” Appellant’s Omnibus Pretrial Motion
to Suppress, 12/7/2015, at 1 (unnumbered). The motion also included a
petition for writ of habeas corpus. Appellant’s argument as to that portion of
the motion, in its entirety, is as follows. “It is believed and averred that the
testimony provided by [the arresting officers] did not meet the standard
required (prima facie case) at the Preliminary Hearing and cannot be
sufficient therefore.” Id. at 2 (unnumbered).
A hearing was held and, by order dated February 19, 2016, the trial
court determined that the Commonwealth had not met its burden of proof
with respect to the summary offense of careless driving and dismissed that
charge. However, the court denied Appellant’s motion in all other respects.
In denying Appellant’s petition for writ of habeas corpus with respect to
section 4303, the trial court took judicial notice, sua sponte, of the time of
sunset on the night at issue. Trial Court Opinion, 2/19/2016, at 5 n.1.
-2- J-A01040-17
On May 2, 2016, this matter proceeded to a non-jury trial as to the
remaining three charges. During trial, the Commonwealth presented in its
case-in-chief a document from the U.S. Naval Observatory’s Astronomical
Applications Department which stated that sunset in Parker on May 14,
2015, occurred at 8:29 p.m. N.T., 5/2/2016, at 12. The trial court admitted
this evidence over Appellant’s objection. Id.
On May 3, 2016, the trial court found Appellant guilty of two counts of
DUI and one violation of section 4303. On June 28, 2016, Appellant was
sentenced. The trial court determined that the two DUI convictions merged
and imposed a term of incarceration of not less than 45 days nor more than
6 months at the greater charge, DUI—high rate of alcohol. The court
imposed a fine, costs and fees for the section 4303 violation. Appellant did
not file post-sentence motions, but timely filed a notice of appeal. Both
Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.
Appellant raises three issues for this Court’s review, which we have
reordered for ease of disposition.
I. Whether the honorable trial court erred in failing to grant Appellant’s omnibus pretrial motion in the nature of a motion to dismiss or writ of habeas corpus?
II. Whether the [trial] court erred in taking judicial notice of the time of sunset in Parker, Pennsylvania on the date of the alleged offense Thursday, May 14, 2015?
III. Whether [section] 4303(a) is unconstitutionally vague?
-3- J-A01040-17
Appellant’s Brief at 4 (suggested answers and unnecessary capitalization
omitted).1
Appellant first contends that the trial court erred in denying his pretrial
motion for writ of habeas corpus. It is well-established that an accused may
challenge the sufficiency of the Commonwealth’s evidence at the pretrial
stage through a petition for a writ of habeas corpus. Commonwealth v.
Hetherington, 331 A.2d 205 (Pa. 1975). However, the failure to establish a
prima facie case at a hearing on a petition for writ of habeas corpus is
immaterial when, at trial, the Commonwealth satisfies its burden by proving
the offense beyond a reasonable doubt. Commonwealth v. Ricker, 120
A.3d 349, 353 (Pa. Super. 2015) (citation omitted) (holding that “errors at a
preliminary hearing regarding the sufficiency of the evidence are considered
harmless if the defendant is found guilty at trial”); see also
Commonwealth v. Troop, 571 A.2d 1084 (Pa. Super. 1990) (noting that
once a defendant has been convicted at trial, any defect in the preliminary
hearing has been satisfied).
Here, Appellant proceeded to trial where the Commonwealth presented
evidence and the trial court, sitting as factfinder, determined that the
evidence was sufficient to convict him of all charges. Accordingly, Appellant
is not, at this juncture, entitled to relief on his challenge to the
1 The issues included in Appellant’s statement of questions involved are identical to those raised in his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
-4- J-A01040-17
Commonwealth’s establishment of a prima facie case at the hearing on
Appellant’s petition for writ of habeas corpus. Thus, we find Appellant’s first
issue to be moot.
In his second issue, Appellant argues that the trial court erred in
taking judicial notice of the time of sunset on the date of the alleged offense.
Appellant’s Brief at 22-27. Specifically, Appellant contends that, absent the
trial court’s decision to sua sponte take judicial notice of this fact, the
Commonwealth was unable to make a prima facie case that section 4303
had been violated, rendering illegal the vehicle stop and Appellant’s
subsequent arrest. Id.
Based on our review of the record, the court took judicial notice only in
the opinion issued following the hearing on Appellant’s petition for writ of
habeas corpus. Trial Court Opinion, 2/19/2016, at 5 n.1. At trial, the
Commonwealth submitted, and the trial court accepted as evidence,
information regarding the time of sunset. Although Appellant objected to
the admission of this evidence, he does not challenge on appeal any errors
that occurred at trial, focusing instead on the court’s earlier decision to take
judicial notice sua sponte. As previously explained, any defect that occurred
at the time of the omnibus pretrial hearing on Appellant’s motion for a writ
of habeas corpus was cured at trial. Accordingly, Appellant is not entitled to
relief on this issue.
-5- J-A01040-17
The final issue listed in Appellant’s statement of questions involved is
whether section 43032 is unconstitutionally vague. Appellant’s Brief at 4.
However, in Appellant’s lengthy argument on this point, he actually assails
the constitutionality of the language of 75 Pa.C.S. § 4302(a)(1) (section
4302), which governs periods for requiring lighted lamps on motor vehicles.3
Id. at 7-21. In so doing, Appellant contends that he was charged under the
wrong statute and asks this Court to vacate his judgment of sentence on this
basis. Id. at 19-20. Because Appellant makes no discernible argument as
to the constitutionality of section 4303, we find this claim waived as
underdeveloped. Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super.
2 The relevant portion of section 4303 states
(a) Head lamps.--Every vehicle, except trailers, operated on a highway shall be equipped with a head lamp system in conformance with regulations of the department. The regulations shall not prohibit a bus from being equipped with devices used to carry pedalcycles on the front of the bus.
75 Pa.C.S. § 4303(a).
3 The relevant portion of section 4302 states
(a) General rule.--The operator of a vehicle upon a highway shall display the lighted head lamps and other lamps and illuminating devices required under this chapter for different classes of vehicles, subject to exceptions with respect to parked vehicles, at the following times:
(1) Between sunset and sunrise.
75 Pa.C.S. § 4302(a).
-6- J-A01040-17
2009) (“It is Appellant’s obligation to sufficiently develop arguments in his
brief by applying the relevant law to the facts of the case, persuade this
Court that there were errors below, and convince us relief is due because of
those errors. If an appellant does not do so, we may find the argument
waived.”).4
Further, because Appellant has failed to preserve in the trial court any
challenge to the constitutionality or applicability of section 4302, or his
contention that he was charged under the wrong statute, and instead raises
those issues for the first time on appeal, we find those claims waived as
well. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”).
Judgment of sentence affirmed.
4 We note that, even if Appellant had properly preserved this issue, he would not prevail on appeal. The plain language of section 4303 places persons on notice that, with limited exception, all vehicles operated on a highway shall be equipped with a headlamp system. This language is not “so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” Commonwealth v. Mayfield, 832 A.2d 418, 423 (Pa. 2003).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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