J-S26030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM JOSEPH MOONEY

Appellant No. 1468 MDA 2014

Appeal from the Judgment of Sentence of August 18, 2014

In the Court of Common Pleas of Schuylkill County

Criminal Division at No: CP-54-CR-0001769-2013

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED MAY 26, 2015

William Joseph Mooney appeals his August 18, 2014 judgment of 

sentence. We affirm.

The trial court set forth the following factual and procedural history:

On September 12, 2013, [Mooney] was charged with driving 

under the influence [(“DUI”)], general impairment, 75 Pa.C.S. 

§ 3802(a)(1), failing to stop at a red traffic signal, 75 Pa.C.S. 

§ 3112(a)(3)(i), and for having an open container of beer in his 

car while operating his vehicle, 75 Pa.C.S. § 3809(a). Mooney 

waived his right to a preliminary hearing and the charges were 

bound over to [the trial court].

On June 6, 2014, believing that Mooney qualified for the 

Accelerated Rehabilitative Disposition Program (“ARD”), Mooney, 

his counsel and counsel for the Commonwealth signed an ARD 

Program Agreement and Waiver and presented it to the [trial 

court], which [it] was inclined to allow. However, after the 

hearing, the Clerk of Courts office notified [the trial court] that, 

in fact, Mooney did not qualify for the ARD program, and [the 

trial court] rescheduled the matter for [a] non-jury trial for June 

25, 2014.
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On that date, Mooney appeared with his counsel. Mooney was 

argumentative, and stated that he did not understand why he 

did not qualify for the ARD program. [The trial judge] briefly 

adjourned and vacated the courtroom so that Mooney and his 

counsel could have a private conference.

When [the trial judge] returned to the courtroom, Mooney stated 

that he had decided to enter a plea. [The trial court] agreed to 

accept his guilty plea, and told Mooney that [the trial court] 

would sentence him that day. [The trial judge] then recessed for 

an additional twenty minutes to give Mooney and his counsel 

time to fill out the paperwork.

When [the trial judge] returned to the courtroom, Mooney was 

no longer in agreement with pleading guilty, and [the trial court] 

held a non-jury trial. Officer Joshua Pastucka (“Pastucka”) of the 

Shenandoah Borough police department testified that on August 

12, 2013, just after midnight, he observed a car proceed 

through a red light and turn left. Pastucka activated his lights 

and pulled the car over. Pastucka identified the driver as 

Mooney and immediately smelled alcohol. Mooney’s speech was 

thick and slurred, and his eyes were watery and bloodshot. 

After checking Mooney’s paperwork, Pastucka returned to the car 

and observed a white foam puddle on the floor of the car and a 

bottle rolling around. Pastucka asked Mooney to step out of the 

car. The puddle of white foam was cold, and there was a 32 

ounce cold Miller Lite bottle in a brown bag. Mooney admitted 

that he had a few sips of the beer. Pastucka believed the puddle 

to be beer.

Mooney agreed to take a field sobriety test, which he failed. 

Pastucka arrested Mooney and had his car towed. At the 

hospital, Mooney refused to take a blood alcohol test. The 

Commonwealth introduced the DL26 form, which Pastucka read 

to Mooney that night, but which Mooney refused to sign. 

Pastucka testified that he believed Mooney to be under the 

influence of alcohol and unable to safely operate his vehicle.

Next, Officer Tyler Dissinger (“Dissinger”) testified. He is also a 

patrolman with the Shenandoah police department. He was 

called to assist Pastucka with the traffic stop. Dissinger also 

observed the white foam puddle on the floor of the vehicle, 

between Mooney’s legs on the floor of the driver’s side of the 

vehicle. Dissinger stood with Mooney while Pastucka searched 

the car and located the empty Miller Lite bottle under the driver’s 
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seat. Dissinger observed that Mooney had bloodshot, glossy 

eyes, and observed both field sobriety tests. Dissinger stated 

that when Mooney complained that the test was being conducted 

on an uneven surface, the officers moved the test area to a 

parking lot with a flat, level surface. Dissinger made the same 

observations about Mooney’s performance of the field sobriety 

tests as Pastucka, and confirmed that Mooney was unable to 

satisfactorily perform either test. Dissinger also testified that he 

believed Mooney to be incapable of safely operating a vehicle 

that evening.

Mooney wished to testify, and [the trial court] informed him of 

his right not to incriminate himself. Mooney denied that his 

counsel had explained this to him. Then, Mooney stated that he 

did not receive any information about a possible plea bargain. 

At this point, [the trial court] found that Mooney was being 

obstructionist. [The trial court] instructed him to either take the 

stand and testify, or he would lose his chance to do so.

Mooney chose to take the stand. He testified that he did not run 

a red light, and that Pastucka had no reason to pull him over. 

Mooney testified that the field sobriety tests were not performed 

on a flat surface. Mooney questioned the officers’ ability to see 

him perform the tests in a dark lot. Mooney questioned the 

existence of the beer bottle, which was not presented at the trial 

as evidence. Mooney state[d] that he was not offered a 

breathalyzer test, and believe[d] that the officers were unfairly 

targeting him and running a scam due to prior arrests. Mooney 

acknowledged hearing the blood test refusal instructions and 

that he refused the test.

[The trial court] found the officers’ testimony to be credible, and 

Mooney’s testimony to be not credible. [The trial court] found 

that the Commonwealth proved its case beyond a reasonable 

doubt, on all three charges. [The trial court] ordered a [presentence investigation (“PSI”)] report.

[The trial court] reviewed the PSI and sentenced Mooney on 

August 18, 2014 on the DUI charge. At the sentencing hearing, 

the Commonwealth observed that this was Mooney’s third DUI, 

and that the current DUI was committed while Mooney was 

awaiting disposition on the second DUI. The Commonwealth 

asked for a sentence of two weeks to six months confinement. 

Defense counsel acknowledged that, at an earlier point in time, 

Mooney had rejected a plea bargain of 72 hours to six months’ 
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time, and that Mooney should not be punished for exercising his 

right to go to trial. After hearing from Mooney and his counsel, 

[the trial court] decided to treat this DUI as Mooney’s second 

offense, because the record did not clearly show that this was a 

third offense. [The trial court] sentenced Mooney to serve no 

less than one week, and not more than six months, confinement, 

and pay a $1,000 fine, costs and fees.

On August 19, 2014, [the trial court] sentenced Mooney on the 

two summary charges, which [the trial court] had neglected to 

do the day prior.[1]

Trial Court Opinion (“T.C.O.”), 9/29/2014, at 1-4.

On September 2, 2014, Mooney filed a notice of appeal. The trial 

court ordered, and Mooney timely filed, a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his only issue 

presented for our review, Mooney challenges the discretionary aspects of his 

sentence. Mooney’s Brief at 4.

Our standard of review for a challenge to the discretionary aspects of 

sentence is as follows:

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed 

on appeal absent a manifest abuse of discretion. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, 

by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at 

a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super.

2007) (citation omitted).

____________________________________________

1 Mooney was sentenced to pay a $25 fine and costs for each of the 

summary convictions. 
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The right to appellate review of the discretionary aspects of a 

sentence is not absolute, and must be considered a petition for 

permission to appeal. See Hoch, 936 A.2d at 518 (citation 

omitted). An appellant must satisfy a four-part test to invoke 

this Court’s jurisdiction when challenging the discretionary 

aspects of a sentence.

[W]e conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal; (2) 

whether the issue was properly preserved at sentencing or 

in a motion to reconsider and modify sentence; (3) 

whether appellant’s brief has a fatal defect; and (4) 

whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing 

Code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010) (citations omitted).

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super. 2014)

(citations modified).

We first note that Mooney filed a timely notice of appeal. He also filed 

a timely concise statement and included a brief statement “of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects 

of sentence” pursuant to Pa.R.A.P. 2119(f). However, although Mooney has

technically complied with the first three requirements of Moury, supra, we 

cannot reach the merits of his challenge.

Although Mooney has listed only one issue in his statement of 

questions presented, he essentially has raised two issues in his brief. The 

first is that the trial court failed to offer specific reasons for the sentence on 

the record. Mooney’s Brief at 7. However, Mooney did not include this 

challenge in a post-sentence motion or at sentencing. “Issues challenging 
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the discretionary aspects of a sentence must be raised in a post-sentence 

motion or by presenting the claim to the trial court during the sentencing 

proceedings. Absent such efforts, an objection to a discretionary aspect of a 

sentence is waived.” Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. 

Super. 2010) (citation and quotation marks omitted); see Buterbaugh, 91 

A.3d at 1266. Therefore, the issue has not been preserved and is waived.

Mooney’s second issue is his contention that he was “given a harsher 

sentence because he exercised his right to go to trial.” Mooney’s Brief at 4. 

Mooney properly preserved this issue by raising it orally at sentencing. See 

Notes of Testimony (“N.T.”), 8/18/2014, at 3; T.C.O. at 4. Mooney also 

included the issue in his Rule 1925(b) concise statement. However, Mooney 

provides nothing in his Rule 2119(f) statement that demonstrates why this 

raises a substantial question.

[A]n appellant “must set forth in his brief a concise statement of 

the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence.” Commonwealth v. 

L.N., 787 A.2d 1064, 1071 (Pa. Super. 2001) (citing Pa.R.A.P. 

2119(f)). [A]n appellant must demonstrate that there is a 

substantial question that the sentence imposed is inappropriate 

under the Sentencing Guidelines. Id.

A substantial question exists where an appellant “advances a 

colorable argument that the trial court’s actions were 

inconsistent with a specific provision of the sentencing code, or 

contrary to the fundamental norms underlying the sentencing 

process.” Id. In determining whether a substantial question 

exists, “[o]ur inquiry must focus on the reasons for which the 

appeal is sought in contrast to the facts underlying the appeal, 

which are necessary only to decide the appeal on the merits.” 

Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super.

2003) (citation omitted) (emphasis in original). Additionally, we 

cannot look beyond the statement of questions presented and 
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the prefatory 2119(f) statement to determine whether a 

substantial question exists. 

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citations modified; emphasis in original). Because Mooney has advanced no 

argument in his Rule 2119(f) statement that a sentence imposed because of 

the decision to go to trial is contrary to the fundamental norms of sentencing 

or inconsistent with the sentencing code, he has provided nothing in his 

2119(f) statement from which we can determine that a substantial question 

exists. Therefore, we must find that this argument also is waived.2 Finding 

Mooney’s issues waived, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2015

____________________________________________

2 The failure to include a Rule 2119(f) statement can be excused if the 

Commonwealth does not object to the exclusion. See Commonwealth v. 

Brougher, 978 A.2d 373, 375 (Pa. Super. 2009); Commonwealth v. 

Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004). Here, the 

Commonwealth has objected to Mooney’s failure to include this issue in his 

Rule 2119(f) statement. See Commonwealth’s Brief at 4-6.