J-S67042-17 

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JOSE GARCIA 

Appellant

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:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 3449 EDA 2016

Appeal from the Judgment of Sentence October 10, 2016

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0000696-2016

BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 13, 2017

Appellant, Jose Garcia, appeals from the judgment of sentence entered 

in the Lehigh County Court of Common Pleas, following his bench trial 

convictions for two counts of driving under the influence of alcohol or 

controlled substance (“DUI”), and one count each of careless driving, 

immediate notice of accident to police department, and driving while 

operating privilege is suspended or revoked.

1 We affirm. 

In its opinion, the trial court fully and correctly set forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them. We clarify that Appellant was charged and convicted of two

counts of DUI under Section 3802(a)(1). 

____________________________________________

1 75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), 3746(a)(2), 1543(a), respectively.
J-S67042-17

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Appellant raises three issues for our review:

WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW 

IN DENYING [APPELLANT’S] REQUEST FOR A JURY TRIAL?

WHETHER THE COMMONWEALTH PRESENTED SUFFICIENT 

EVIDENCE THAT [APPELLANT] DROVE, OPERATED, OR 

WAS IN ACTUAL PHYSICAL CONTROL OF THE VEHICLE AT 

TRIAL TO SUSTAIN THE DRIVING UNDER THE INFLUENCE 

CHARGES?

WHETHER THE VERDICT OF GUILTY WAS AGAINST THE 

WEIGHT OF THE EVIDENCE AS NO DIRECT EVIDENCE WAS 

PRESENTED AT TRIAL THAT [APPELLANT] DROVE, 

OPERATED, OR WAS IN ACTUAL PHYSICAL CONTROL OF 

THE VEHICLE, AND [APPELLANT’S] WITNESS TESTIFIED 

THAT SHE WAS THE DRIVER OF THE VEHICLE?

(Appellant’s Brief at 5).2

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Maria L. 

Dantos, we conclude Appellant’s first and second issues on appeal merit no 

relief. The trial court opinion comprehensively discusses and properly 

disposes of those questions. (See Trial Court Opinion, filed November 29, 

2016, at 11-12; 2-6) (finding: (1) first DUI offense is ungraded 

misdemeanor punishable by up to six months’ imprisonment; when first 

offender refuses chemical testing, violation remains ungraded misdemeanor 

____________________________________________

2 The summary of the argument section in Appellant’s brief does not pertain 

to any of the issues Appellant raises on appeal. Rather, this section 

inexplicably states the trial court erred by failing to grant Appellant’s motion 

to suppress evidence. The record suggests this misstatement was merely an 

inadvertent error by counsel. 
J-S67042-17

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punishable by up to six months’ imprisonment;3right to jury trial exists only 

when defendant faces charge which, alone, could lead to imprisonment 

greater than six months; thus, Appellant’s argument is legally flawed; (2)

Commonwealth presented evidence that on August 22, 2015, at 

approximately 4:30 a.m., police received dispatch to accident in McDonald’s 

parking lot; Officer Beiner observed male, later identified as Appellant, 

standing outside of driver’s side door of pick-up truck which had damage to 

front and side fenders; Officer Beiner noticed another vehicle approximately 

20 feet away had damage to it as well as nearby telephone pole; Appellant’s 

vehicle had yellow paint on it which appeared to be from utility pole; 

Appellant denied knowledge of accident; Appellant said his wife had been 

____________________________________________

3 Appellant was charged with, inter alia, two counts of first-offense DUI 

under Section 3802(a)(1): count 1−DUI (general impairment) and count 

2−DUI (general impairment with refusal). Appellant was not facing any 

charges subject to more than six months’ imprisonment. The court’s 

statement, therefore, is limited to the context of Appellant’s demand for a 

jury trial. We acknowledge the recent cases of Birchfield v. North 

Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) and 

Commonwealth v. Giron, 155 A.3d 635 (Pa.Super. 2017) (holding that, 

pursuant to Birchfield, defendant who refuses to submit to warrantless

blood draw cannot be subject to enhanced penalties under 75 Pa.C.S.A. 

§§ 3803-3804; affirming appellant’s DUI conviction but vacating and 

remanding for resentencing). Significantly, the record in the present case 

makes clear the court imposed no penalty at all on Appellant’s conviction for 

count 2−DUI (general impairment with refusal). In fact, the court sentenced 

Appellant on only count 1−DUI (general impairment), plus fines/costs for the 

summary offenses. Therefore, this case did not involve an illegal sentence 

under Birchfield or Giron. Further, Appellant did not raise any Birchfield

challenge to the validity of his conviction for count 2−DUI (general 

impairment with refusal). So, absent an illegal sentence on that conviction, 

Appellant is not entitled to relief on the grounds asserted. 
J-S67042-17

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driving and was in McDonald’s using restroom; Officer Beiner went inside but 

no patrons were there as restaurant was closed except for employees; 

Officer Beiner noticed strong odor of alcohol on Appellant’s breath, and that 

Appellant had glassy and bloodshot eyes and was swaying; Appellant also 

kept repeating himself; Appellant refused to perform sobriety tests or 

consent to blood draw; court found completely incredible Appellant’s wife’s 

testimony that she was driver of vehicle, struck utility pole, went to use 

McDonald’s restroom but because restaurant was closed she walked to 

Walgreen’s to use restroom there, and it took her one hour to find bathroom 

and return to accident scene; Appellant’s license was under suspension on 

date in question; evidence was sufficient to sustain Appellant’s convictions). 

Therefore, with respect to Appellant’s first and second issues on appeal, we 

affirm on the basis of the trial court’s opinion.

Regarding Appellant’s third issue, preliminarily, a challenge to the 

weight of the evidence must be preserved by a motion for a new trial. 

Pa.R.Crim.P. 607. The Rule provides: 

Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of 

the evidence shall be raised with the trial judge in a 

motion for a new trial:

(1) orally, on the record, at any time before 

sentencing;

(2) by written motion at any time before sentencing; 

or
J-S67042-17

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(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the 

purpose of this rule is to make it clear that a challenge to the weight of the 

evidence must be raised with the trial judge or it will be waived.” 

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal 

denied, 581 Pa. 672, 863 A.2d 1143 (2004). An appellant’s failure to avail 

himself of any of the prescribed methods for presenting a weight of the 

evidence issue to the trial court constitutes waiver of that claim, even if the 

trial court responds to the claim in its Rule 1925(a) opinion. 

Commonwealth v. Burkett, 830 A.2d 1034 (Pa.Super. 2003). See also 

Pa.R.Crim.P. 720(A)(1) (explaining written post-sentence motion shall be 

filed no later than 10 days after imposition of sentence). 

Instantly, the court sentenced Appellant on October 10, 2016. 

Appellant did not raise a challenge to the weight of the evidence prior to 

sentencing or file a post-sentence motion within ten days of the imposition 

of his sentence. The trial court’s discussion of Appellant’s weight claim in its 

Rule 1925(a) opinion does not cure this defect.4 See Burkett, supra. 

Thus, Appellant’s weight claim is waived. See Pa.R.Crim.P. 607; 720; 

Gillard, supra; Burkett, supra. Moreover, even if Appellant had preserved 

____________________________________________

4 The full citation for Commonwealth v. Lyons (see Trial Court Opinion at 

7), is 833 A.2d 245 (Pa.Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 

782 (2005). 
J-S67042-17

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his weight claim, we would affirm for the reasons stated in the trial court’s 

opinion. (See Trial Court Opinion at 2-7.) Accordingly, we affirm.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2017
75 Pa. C.S.A. § 3802(a)(l). 

75 Pa. C.S.A. § 3714(a). 

75 Pa. C.S.A. § 3746(a)(2). 

). 

3 

Careless Driving.s Immediate Notice of Accident to Police Department," and Driving 

Driving Under the Influence of Alcohol (general impairment, first offense, highest tier), 

1 

At the conclusion of the trial, this Court found the Defendant, Jose Garcia, guilty of 

A non-jury trial was conducted in the within matter on August 15, 2016. 

MARIA L. DANTOS, J. 

MEMORANDUM OPINION 

·k * * * ~- ·}: ·): •k 

KATHRYN SMITH ESQUIRE J ) 

On behalf of the Defendant 

ADRA RENEE SMITH, ESQUIRE, 

SENIOR DEPUTY DISTRICT ATTORNEY, 

On behalf of the Commonwealth 

APPEARAN CP~S: 

JOSE GARCIA, 

Defendant 

vs. Case No. 0696/2016 

COMMONWEALTH OF PENNSYLVANIA 

CRIMINAL DMSION 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

Circulated 10/24/2017 10:08 AM
2 

75 Pa. C.S.A. § 1543(a}. 

Commonwealth v. TayJ.or, 831 A.2cl 66 i, 663 (Pa. Super. 2003), quoting ~ommonwealth 

v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 200l)(stating that the standard applied in 

at trial was insufficient to sustain finding the Defendant guilty of Driving Under the 

Influence of Alcohol (general impairment, first offense, highest tier), Careless Driving, 

Immediate Notice of Accident to Police Department, and Driving Under Suspension. It 

is well-settled law in Pennsylvania that when reviewing the sufficiency of the evidence 

claim, the appellate court must review all of the evidence and all reasonable inferences 

drawn therefrom in a light most favorable to the Commonwealth as the verdict winner. 

A. Challe1.1gi11:g the Sufficiency of the Evidence 

The Defendant alleges that the evidence presented by the Commonwealth 

this Court to reconsider its sentence. 

concise statement of matters complained of on appeal, the Defendant challenges the 

weight of the evidence and the sufficiency of the evidence. The Defendant also argues 

that this Court erred in not granting the Defendant a jury trial, as well as requests 

appeal no later than November 28, 2016, in accordance with Pennsylvania Rule of 

Appellate Procedure 1925(b). The Defendant timely complied with said Order. In his 

of record and serve upon this Court a concise statement of errors complained of on 

consecutively to the sentence imposed in Case No. 215/2016. The within timely appeal 

followed on November 3, 2016. Thereafter, this Court instructed the Defendant to file 

Defendant was sentenced to a term of imprisonment of not less than one (1) month nor 

more than six (6) months in Lehigh County Jail, as well as costs and fines, to be run 

While Operating Privilege is Suspended." Thereafter; on October 10, 2016, the 
of safe driving. See 75 Pa. C.S.A. § 3802(a)(l). 

vehicle while under the influence of alcohol to a degree which rendered him incapable 

individual was driving, operating, or in actual physical control of the movement of the 

Driving Under the Influence, the Commonwealth must have demonstrated that the 

Initially this Court notes that in order to establish a prima [acie case for 

868 A.2cl at 505. 

established, then the evidence will be deemed sufficient to support the verdict. Hunzer, 

have determined from the evidence adduced that all of the necessary elements were 

Pa. Super. 495, 501, 648 A.2d 331, 333 (1993). If the finder of fact reasonably could 

testimony and to believe all, part or none of the evidence. Commonwealth v. Moore, 436 

within the province of the fact finder to determine the weight to be given to the 

a mere conflict in the testimony does not render the evidence insufficient, because it is 

789 A.2d 708, 716 (Pa. Super. 2001) (citations and quotations omitted)). Furthermore, 

McCalman, 795 A.2cl 412, 415 (Pa. Super. 2002) (citing Commonwealth v. Passarelli, 

which the Defendant challenges, beyond a reasonable doubt. Commonwealth v. 

determine whether the evidence was sufficient to prove all of the elements of the crimes, 

Hunzer, 868 A.2d 4-98, 505 (Pa. Super. 2005). With that standard in mind, we must 

the Commonwealth need not preclude every possibility of innocence. Commonwealth v. 

1534, 140 L.Ed.2d 684 (1998). Moreover, the facts and circumstances established by 

549 Pa. 269, 280, 701 A.2d 190, 195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 

Commonwealth v. Klein, 795 A.2d 424, 426 (Pa. Super. 2002); Commonwealth v. Hall, 

enable the fact-finder to find every element of the crime beyond a reasonable doubt); 

trial in the light most favorable to the verdict winner, there is sufficient evidence to 

reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at 
4 

Pa. C.S.A. § 154-3(a). 

After a review of the record, this Court finds that the evidence presented at 

the non-jury trial was sufficient to support the finder of fact's verdict with regard to all 

of the aforementioned charges. Viewed in the light most favorable to the 

Commonwealth, as verdict winner, a summary of the specific evidence established at 

trial is as follows: 

In the instant case, the evidence presented at trial revealed that on 

August 22, 2015, at approximately 4:30 A.M., Officer Joseph Beiner of the Allentown 

Police Department was patrolling in full uniform and in a marked patrol unit when he 

received a dispatch to respond to the scene of an accident at the McDonald's parking 

lot located at 1414 Tilghman Street, Allentown, Lehigh County, Pennsylvania. Upon 

his arrival, he observed a male, later identified as the Defendant, .Jose Garcia, 

quickest: means of communication give notice to the nearest office of a duly 

authorized police department if the accident involves damage to any vehicle involved 

to the extent that it cannot be driven under its own power in its customary manner 

without further damage or hazard to the vehicle, other traffic elements, or the 

roadway, and therefore requires towing." See 75 Pa. C.S.A. § 3746(a)(2} (Immediate 

Notice of Accident to Police Department). Finally, "any person who drives a motor 

vehicle on any highway or traffic way of this Commonwealth after the commencement 

of a suspension, revocation or cancellation of the operating privilege and before the 

operating privilege has been restored" is guilty of Driving Under Suspension. See 7 5 

Also, "any person who drives a vehicle in careless disregard for the safety 

of persons or property is guilty" of Careless Driving. See 75 Pa. C.S.A. § 3714(a). In 

addition, "[tjhe driver of a vehicle involved in an accident shall immediately by the 
5 The Defendant's wife, Tamisha Taylor, testified at the time of trial. Her testimony was 

completely incredible and unbelievable. Ms. Taylor indicated that at approximately 4:00 A.M., 

she and her husband decided to leave their seven (7) children, whose ages range from one year 

old to seventeen (17) years old, home alone to go get something to eat at McDonald's. She 

indicated that she was the driver of the Ford F'l50 pick-truck and that she had struck the pole 

in the McDonald's parking lot. Ms. Taylor then explained that she became so upset that she 

had to use the restroom. As the McDonald's was closed, she walked to Walgreens located at 

1 71h and Tilghman Streets to use their bathroom facilities. Ms. Taylor stated that it took her 

about one ( 1) hour to find a bathroom and return to the scene of the accident. Ms. Taylor's 

testimony was completely incredible and this Court disregarded it: in its entirety as one 

complete lie. 

immediately noted a strong odor of alcohol emanating from bis person and his breath. 

When Officer Beirier initially had spoken with the Defendant, he 

the McDonald's, as the restaurant was closed and only had employees inaide.> 

into the McDonald's to locate the Defendant's wife. However, no patrons were inside 

was in the McDonald's restaurant using the restroom facilities. Officer Seiner went 

indicated that his wife had been driving the Ford F'lSO pick-up truck, and that she 

accident. The Defendant denied having any knowledge of a vehicular accident. He 

Officer Seiner approached the Defendant and inquired about the 

utility pole on the side, which was consistent with hitting the telephone pole. 

Beiner observed that the Ford F 150 pick-up truck had yellow transfer paint from the 

In particular, Officer Beiner viewed "scuff marks" on the telephone pole. Officer 

telephone pole at the southeast end of the McDonald's parking lot was also damaged. 

damage was new, as there was glass underneath the back encl of the vehicle. Also, a 

feet from the Ford Fl 50 pick-up truck, had damage to the rear of the car. This 

vehicle located in the McDonald's parking lot, which was approximately twenty (20') 

fender and to the driver side fender. In addition, Officer Seiner noticed that another 

Seiner observed that the Ford Fl 50 pick-up truck had sustained damage to the front 

standing outside of the driver's side door of a black Ford Fl 50 pick-up truck. Officer 
6 

conclude in its discretion that "the verdict is so contrary to the evidence as to shock 

challenge that the verdict is against the weight of the evidence requires this Court to 

Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003). Furthermore, a 

Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000); 

sustain the verdict, but contends that it is against the weight of the evidence. 

contrary to the weight of the evidence concedes that there is sufficient evidence to 

evidence. This Court notes that a motion for a new trial on grounds that the verdict is 

The Def end ant alleges that the verdict was against the weight of the 

B. Challenging the Weight of the Evidence 

challenge to the sufficiency of the evidence must fail. 

In light of this abundant evidence enumerated above, the Defendant's 

·--------------------------···-····-···- .... ·-·········-······--· ---------------- 

2015. (C. Ex. 1). 

records indicates that the Defendant's driver's license was suspended on August 22, 

certified Pennsylvania Department of Transportation Bureau of Driver Licensing 

blood draw, where he refused to submit to chemical testing. Furthermore, the 

custody, and transported the Defendant to the DUI Central Booking Center for a 

of alcohol and incapable of safe driving, Officer Beiner placed the Defendant in 

be administered. Consequently, believing that the Defendant was under the influence 

agreed. However, the Defendant changed his mind and refused to allow the tests to 

Defendant would consent to performing field sobriety tests. At first the Defendant 

Defendant kept repeating himself to the Officer. Officer Beiner inquired if the 

The Defendant had glassy and bloodshot eyes, and was swaying. In addition, the 
7 

C. Motion to Modify and Reduce Sentence 

Finally, the Defendant asserts that this Court erred in sentencing the 

Defendant to a manifestly excessive and unduly harsh sentence. The Defendant is 

challenging the discretionary aspects of sentencing. Commonwealth v. Bishop, 831 

A.2d 656, 660 (Pa. Super. 2003). Initially this Court notes that: 

the McDonald's parking lot. In addition, the Defendant failed to give notice to the 

nearest office of a duly authorized police department after he was involved in the 

accident that involved damage to another vehicle. Finally, the record evidence 

established that the Defendant drove the Ford F150 pick-up truck at a time when his 

license was suspended, in violation of the Motor Vehicle Code. In light of this 

abundant evidence enumerated above, the Defendant's challenge to the weight of the 

evidence must fail. 

Commonwealth v. Shaffer, 722 A.2cl 195, 200 (Pa. Super. 1998). See also 

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003). 

From the evidence recounted above, it is reasonable to have concluded 

that the Defendant was driving, operating, or in actual physical control of the 

movement of his Ford F150 pick-up truck while under the influence of alcohol to a 

degree which rendered him incapable of safe driving. Also, the evidence showed that 

the Defendant drove his Ford F150 pick-up truck in careless disregard for the safety 

of persons or property when he struck the utility pole and the other vehicle parked in 

one's sense of justice.'' Lyons, 833 A.2d at 258. Indeed, for a new trial to lie on a 

challenge that the verdict is against the weight of the evidence, the evidence must be 

so tenuous, vague and uncertain that the verdict shocks the conscience of the court." 
8 

In determining whether a sentence is manifestly excessive, 

the appellate court must give great weight to the 

sentencing court's discretion, as he or she is in the best 

position to measure factors such as the nature of the 

crime, the defendant's character, and the defendant's 

display of remorse, defiance, or indifference. 

Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 

J 997). Where an excessiveness claim is based on a court's 

"manifestly excessive." To do so, the following considerations must be examined: 

limits. Therefore, the Defendant's sentence must be evaluated to determine if it was 

maximums. Unquestionably, the sentence imposed did not exceed the statutory 

standard range of the guidelines and maximum sentence was set at the statutory 

In the instant case, the Defendant's minimum sentence was within the 

1275, 1277 (Pa. Super. 1998). 

appellate courts will not disturb the sentence. Commonwealth v. Gibson, 716 A.2cl 

guidelines is not unreasonable," its responsibilities have been fulfilled and the 

sentencing court proffers reasons indicating that its d~ision to depart from the 

Commonwealth v. Shaffer, 722 A.2d 195, 198-199 (Pa. Super. 1998). If "the 

excessive." Commonwealth v. Gaddis, 432 Pa. Super. 523, 

639 A.2d 462, 469 (1994). Nevertheless, sentencing 

guidelines are merely advisory, and the court may, in its 

discretion, sentence outside the guidelines. When a trial 

court deviates from the guidelines, it must state its reasons 

for deviation on the record at the time of sentencing or in a 

contemporaneous written statement. Commonwealth v. 

Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994). 

The court must also consider the guidelines as a starting 

point and deviate so as to impose a sentence consistent 

with both the public's safety needs and the defendant's 

rehabilitative needs. Id. 

Sentencing is within the sound discretion of the sentencing 

judge, and that decision will not be disturbed absent an 

abuse of discretion. Commonwealth v. Jones, 418 Pa. 

Super. 93, 613 A.2cl 587, 591 (1992)(en. bane). "To 

constitute an abuse of discretion, the sentence imposed 

must either exoeecl the stat·utory limits or be m.anifostly 
9 

following manner: 

Walls, 926 A.2cl 957 (Pa. 2007). The standard of review has been explained in the 

be evaluated to determine if there was an abuse of discretion. Commonwealth v. 

addressed, Defendant's argument must fail. The Defendant's sentence must initially 

Additionally, even if the merit of the Defendant's sentencing claim were 

justify a review of his claim. 

imposing an excessive and harsh sentence fails to present a substantial question to 

595. Consequently, Defendant's assertion that this Court abused its discretion by 

allegation that the sentences imposed are excessive or harsh. Laclamus, 896 A.2d at 

2005). Furthermore, a substantial question requires something more than an 

concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 

2003). The defendant must demonstrate that a substantial question exists 

1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 

A.2d 592, 595 (Pa. Super. 2006); see also Commonwealth v. Shugars, 895 A.2d 1270, 

sentence are not reviewable as a matter of right." Commonwealth v. Ladamus, 896 

Moreover, "[i]t is well-settled that appeals of discretionary aspects of a 

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (citations omitted). 

protection of the public, the rehabilitative needs of the 

defendant, the gravity of the particular offenses as it relates 

to the impact on the life of the victim and the community, 

so long as the court also states of record the factual basis 

and specific reasons which compelled him to deviate from 

the guideline range. 

sentencing outside the guideline ranges, we look, at a 

minimum, for an indication on the record that the 

sentencing court understood the suggested sentencing 

range. 42 Pa. C.S.A. § 972l(b). When the court so 

indicates, it may deviate from the guidelines, if necessary, 

to fashion a sentence which takes iota acccunt the 
10 

to impose its sentence concurrently or consecutively to other sentences being 

precedent recognizes that 42 Pa. C.S.A. § 9721 affords the sentencing court discretion 

Commonwealth v. Booze, 953 A.2d 1263, 1279 (Pa. Super. 2008). Long-standing 

than concurrent sentences lies within the sound discretion of the sentencing court. 

Additionally, it is axiomatic that the imposition of consecutive rather 

character, as well as any mitigating factors). 

was aware of and adequately considered information relevant to the defendant's 

where a pre-sentence report exists, there is a presumption that the sentencing judge 

factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (holding that 

the information contained therein. Also, this Court did not fail to consider mitigating 

Investigation Report prepared on September 14, 2016. The Court was aware of all of 

Prior to sentencing, this Court carefully reviewed the Pre-Sentence 

(Pa. Super. 2008). 

guidelines." 42 Pa. C.S.A. § 9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 

victim and the community, the defendant's rehabilitative needs, an.cl the sentencing 

"protection of the public, the gravity of the offense as it relates to the impact on the 

In imposing the Defendant's sentence, this Court considered the 

v. Rodela, 723 A.2cl 212, 214 (Pa. Super. 1999)(en bane). 

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth 

misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision. 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, mid 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 

reforence to tfo: record, that tbe sentencing c~rnrt ignored or 
11 

D. Entitled to Jury Trial 

The Defendant argues that he was entitled to a trial by jury in the within 

matter. However, this argument is baseless. This Court notes that the "right to a jury 

trial exists when a defendant faces a charge which, alone, could lead to imprisonment 

beyond six months." Commonwealth v. Harriott, 919 A.2d 234, 237 (Pa. Super. 

2007}, citing Commonwealth v. Kerry, 906 A.2cl 1237, 1239, 1240 (Pa. Super. 2006). 

"By contrast, there is no jury trial right if an offense bears a maximum incarceration 

of six months or less." Id. Pennsylvania deems a first offense Driving Under the 

Influence charge an ungraded misdemeanor, punishable by up to aix (6) months of 

imprisonment. See 75 Pa. C.S.A § 3803(a)(l). Where a first offender refuses chemical 

Defendant's argument is baseless and the Defendant's request to modify and reduce 

sentence is denied. 

imposition of consecutive rather than concurrent sentences does not present a 

substantial question regarding the discretionary aspects of sentence." 

Commonwealth v. Lloyd, 878 A.2cl 867, 873 (Pa. Super. 2005). Indeed, the Superior 

Court of Pennsylvania has stated: "We see no reason why [a defendant] should be 

afforded a 'volume discount' for his crimes by having all sentences run concurrently." 

Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214 (1995). 

With all of this information in mind, using its discretion this Court 

imposed a sentence that was appropriate and within the law. Accordingly, the 

imposed at the same time or to sentences already imposed. 42 Pa. C.S.A. § 9721. See 

also Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008); 

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005}. "A challenge to the 
12 

DATED: 

The Defendant's appeal is without merit and should be dismissed. 

testing, the violation remains graded as an ungraded misdemeanor punishable by up 

to 6 months' imprisonment. 75 Pa. C.S.A. § 3803(b)(2). Consequently, the Defendant's 

argument is legally flawed.