J

- S02036

- 23

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

v.

PRITAM RAJ

- SHARM KANDEL

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 954 MDA 2022 Appeal from the Judgment of Sentence Entered June 8, 2022 In the Court of Common Pleas of Union County Criminal Division at

No(s): CP

- 60

- CR

- 0000055

- 2021

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J. MEMORANDUM BY DUBOW, J.: FILED: APRIL 4, 2023 Appellant, Pritam Raj

- Sharm Kandel, appeals from the judgment of
sentence entered on June 8, 2022, after the court convicted him of Driving Under the Influence of A lcohol (“DUI”)

. 1 After careful review, we affirm in part and vacate in part

. On December 8, 2020, Buffalo Valley Regional Police Sergeant Fred Hetrick, Jr. was traveling north on State Route 15 when he witnessed a car on the southbound shoulder. Sergeant Hetrick noticed that the car’s lights were on and the operator, later ident ified as Appellant, was in the process of exiting the vehicle through the driver’s door. Sergeant Hetrick performed a U

- turn and, approximately 3 to 5 minutes later, approached Appellant’s vehicle.

_________________ __________ ______ ____ _______ 1 75 Pa.C.S. § 3802(a)(1)

. The court also convicted Appellant of the summary offense of Careless Driving. Id. at § 3714(a). Appellant’s issue on appeal relate s solely to his DUI conviction.J

- S02036

- 23

- 2

-

When he approached, Sergeant Hetrick noticed damage to the driver’s side of Appellant’s vehicle, a nd that the front passenger

- side tire was flat. Appellant had also turned off his lights and was laying across the rear seats. Through the course of interacting with Appellant, Sergeant Hetrick smelled alcohol on Appellant’s breath and noticed that Appell ant’s eyes were bloodshot and glassy, and his speech was slurred. Appellant failed two field sobriety tests and a preliminary breath test indicated the presence of alcohol. Based on the totality of the circumstances, Sergeant Hetrick determined that Appell ant was under the influence of alcohol to a degree that rendered him incapable of safe driving and, as a result, arrested Appellant. Sergeant Hetrick took Appellant to a local hospital, where Appellant refused to submit to a chemical test of his blood.
On December 6, 2021, the Commonwealth presented its evidence at a bench trial. Sergeant Hetrick , who testified on behalf of the Commonwealth , testified in a manner consistent with the above. The Commonwealth also presented the court with a video recording of the incident taken from Sergeant Hetrick’s vehicle. Appellant also testified at trial . He stated that before Sergeant Hetrick arrived, his car had hit a pothole and then a railing. Appellant pulled his car off to the side of the road and called his wife to request that she pick him up. Knowing that he was going to have a long wait, Appellant decided to turn the car’s lights off and move to the back seat. While in the back seat, Appellant drank 3 beers.J

- S02036

- 23

- 3

-

A t the conclusion of trial, the court convicted Appella nt of DUI

. In rendering its verdict, the court explained that it did “not find [Appellant’s] testimony concerning the circumstances of the accident to be credible.” Id. at 52. On June 8, 2 0 22 t he court imposed a 5

- day to 6

- month sentence of county incarcer ation and granted Appellant immediate parole for time served

. 2 The
court also ordered , as part of Appellant’s sentence, that Appellant “ suffer a twelve

- month operator license suspension and a one

- year ignition interlock restriction.” Amended Sentence, 6/8/22, at 1 (unpaginated). Appellant timely filed a post

- sentence motion challenging the weight of the evidence , which the court denied. Appellant then timely filed a Notice of Appeal and complied with Pa.R.A.P. 1925(b). 3
A. In his sole issu e on appeal, Appellant challenges the trial court’s exercise of discretion in denying his post

- sentence challenge to the weight of the

_________________ __________ ______ ____ _______ 2 A lthough it appears that Appellant has completed serving his incarceration sentence, this appeal is not moot because the instant DUI conviction carries with it continuing civil consequences and the potential for increased consequences if Appellant is convicted of DUI in the future. See Commonwealth v. Lehnerd , 273 A.3d 586, 589 n.3 (Pa. Super. 2022) ; 75 Pa.C.S. § 3804(a) , (e)

. See also Commonwealth v. Foster , 214 A.3d 1240, 124 6 (Pa. 2019)

.
3 Unfortunately, the judge that presided over Appellant’s trial retired before issuing a Pa.R.A.P. 1925(a) opinion. We are, however, capable of analyzing the issue presented because the trial court placed its credibility determinations on the record at the conclusion of trial. N.T. Trial at 52

- 53.J

- S02036

- 23

- 4

-

evidence

. 4 Appellant’s Br. at 5. In essence, Appellant argues that the trial court should have found credible his testim ony that “he drank after his vehicle came to rest, not before [ , ]” and place more weight on this testimony than the other evidence presented at trial. Id. at 9

- 11. “The weight of the evidence is exclusively for the finder of fact, who is free to believe al l, none[,] or some of the evidence and to determine the credibility of the witnesses.” Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). “ Resolving contradictory testimony and questions of credibility are matters for the factfinder

. ” Commonwealth v. Hopkins , 747 A.2d 910, 917 (Pa. Super. 2000). It is well

- settled that we cannot substitute our judgment for that of the factfinder

. Talbert , 129 A.3d
at 546. 5 , 6

_________________ __________ ______ ____ _______ 4 Appellant also purports to challenge the sufficiency of the Commonwealth’s evidence. Appellant’s Br. at 5

. Appellant’s argument , however, is a challenge to the trial court’s credibility determinations and, thus, a challenge to the weight , and no t the sufficiency, of the evidence. Commonwealth v. Gaskins , 692 A.2d 224, 227 (Pa. Super. 1997).

5 This Court’s review of a weight claim is a review of the trial court’s exercise of discretion in denying the weight chall enge raised in the post

- sentence motion. Talbert , 129 A.3d at 545

- 46. As our Supreme Court has made clear, reversal is only appropriate “where the facts and inferences disclose a palpable abuse of discretion[.]” Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014) (emphasis omitted).

6 T o sustain a conviction for DUI

— General Impairment, the Commonwealth must prove that the defendant drove, operated, or was “in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving[.]” 7 5 Pa.C.S. § 3802(a)(1).J

- S02036

- 23

- 5

-

Appellant essentially asks this Court to reassess his credibility , find his testimony credible, and then find his testimony more persuasive than the testimony of Sergeant Hetrick. It is well settled that this Court cannot substitute it s credibility determinations for that of the factfinder or reweigh the evidence. Here, the factfinder found Appellant’s testimony lack ed credibility. It is not within the purview of our review to reassess that determination or reweigh the evidence. Our review of the record reveals no abuse of the trial court’s discretion. Consequently, t his claim fails.
B. In conducting our review of Appellant’s case, we have identified a sentencing illegality. 7 We conclude that the court lacked the authority to impose the license suspension and ignition interlock aspects of Appellant’s
sentence , thus rendering them illegal . As a result, we vacate those
restrictions

. “A claim that implicates the fundamental legal authority of the court to impose a particular sentence constitutes a challenge to the legality of
sentence. ” Commonwealth v. Moroz , 284 A.3d 227, 230 (Pa. Super. 2022) ( en banc ) (citation s omitted)

. “ If no statutory authorization exists for a

_________________ __________ ______ ____ _______ 7 We may raise the issue of sentencing legality sua sponte

. Commonwealth v. Infante , 63 A.3d 358, 363 (Pa. Super. 2013). Our standard of review is de novo and scope of review is plenary. Commonwealth v. Alston , 212 A.3d 526, 528 (Pa . Super. 2019).J

- S02036

- 23

- 6

-

particular sentence, that sentence is illegal an d subject to correction. An illegal sentence must be vacated.” Id. (citation s omitted).

“ Pennsylvania’s Motor Vehicle Code sets forth a statutory scheme which requires the executive branch[, through the Department of Transportation (“the Department”) ,] to issue and regulate motor vehicle licenses.” Commonwealth v. Mockaitis , 834 A.2d 488, 500 (Pa. 2003). Specifically,
Section 1531 grants the Department with the authority “for revocation and suspension of operating privileges and for driver education, testing and control[.]” 75 Pa.C.S. § 1531. Within the statutory scheme, the Code requires that the Department suspend a driver’s operating privilege if he or she is convicted of DUI : The department shall suspend the operating privilege o f an individual . . . upon receiving a certified record of the individual’s conviction of or an adjudication of delinquency for: (i) an offense under section 3802 [relating to DUI

offenses.] 75 Pa.C.S. § 3804 (e) (1)(i) (emphasis added). 8 The Code also require s that the Department suspend the license of any person arrested for DUI who refuses to submit to chemical testing: If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police

_________________ __________ ______ ____ _______ 8 We note that 75 Pa.C.S. § 3804 (e)(2)(iii) includes an exception to the license suspension requirement for defendants convicted of a first offense under Section 3802(a).J

- S02036

- 23

- 7

-

officer, the department shall suspend the operating privileg e of the person as follows: (i) Except as set forth in subparagraph (ii), for a

period of 12 months. Id. at § 1547(b) (1)(i) (emphasis added)

. 9 The judiciary’s role is “limited to determining guilt” of DUI

. Mockaitis , 834 A.2d at 501 (citation omitted). It is undisputed that the legislature vested in the Departmen t, and not the trial court, the authority to suspend a license. Id. 10 Similarly, Section 3805 of the Vehicle Code grants the Department with the authority to require that a person convicted of DUI , an d who seeks to have his driving privileges restored , accept the installation of an ignition interlock system

. 75 Pa.C.S. § 3805(a)(1)

. Our Supreme Court has explained that by enacting Section 3805, the General Assembly “delegate[ed] to the Department, not the courts , the authority to impose the interlock requirement.” Whalen v. Com., Dept. of Transp., Bureau of Driver Licensing , 32 A.3d 677, 680 n.3 (Pa. 2011) (emphasi s added). Thus, “ a sentencing court has no statutory authority to order installation of [ ignition

_________________ __________ ______ ____ _______ 9 Appellant refused chemical testing. N.T. Trial, 12/6/21, at 13.

10 In Mockaitis , our Supreme Court found unconstitutional Act 63 on the grounds that it violated the Separation of Powers doctrine because it delegate d to the c ourts the responsibility to determine whether and when repeat DUI offenders are entitled to conditional restoration of their operating privileges , which is a function of the executive branch of government

. 834 A.2d at 503. Following Mockaitis , o ur legislature passed , inter alia , Sections 3804 and 3805 , which grant to the Department the exclusive authority to make ignition interlock and license suspension determinations

. See 75 Pa.C.S. §§ 3804, 3805.J

- S02036

- 23

- 8

-

interlock ] devices” and a sentence imposing an interlock system is illegal and must be vacated. Commonwealth v. Williams , 871 A.2d 254, 266 (Pa. Super. 2005). The above law makes clear that it is for the Department , and not the courts, to impose license suspension s and the use of ignition interlock systems

. Because t he trial court in this case impose d these restrictions when only the Department has the authority to do so , their imposition is illegal. As a result, we vacate the license suspension and ignition interlock aspects of Appellant’s sentence. 11 In sum, we vacate the license suspension and ignition interlock portions of Appellant’s senten ce. We affirm all other aspects of his judgment of
sentence. Judgment of sentence affirmed in part, vacated in part. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/4/2023

_________________ __________ ______ ____ _______ 11 This outcome does not preclude the Department from suspending Appellant’s license and mandat ing an ignition interlock system when Appellant seeks restoration of his driving privilege

.