J-A01040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

ETHAN DANIEL MAIHLE,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

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 
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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.
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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.
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The final issue listed in Appellant’s statement of questions involved is 

whether section 43032is 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).
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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