Com. v. Ellis, M. ( 2014 )

J-S61007-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL LAMONT ELLIS, :
:
Appellant : No. 1560 WDA 2013
Appeal from the Judgment of Sentence Entered July 24, 2013,
In the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0003801-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT, and STRASSBURGER,* JJ.
CONCURRING MEMORANDUM BY: STRASSBURGER, J.: FILED DECEMBER 18, 2014
I agree with the result reached by the Majority; however, I write
separately on two of Appellant’s issues.
First, the implied consent provision of the Motor Vehicle Code provides,
in relevant part, that
[a]ny person who drives, operates or is in actual physical control
of the movement of a vehicle in this Commonwealth shall be
deemed to have given consent to one or more chemical tests of
breath, blood or urine for the purpose of determining the
alcoholic content of blood…if a police officer has reasonable
grounds to believe the person to have been driving, operating or
in actual physical control of the movement of a vehicle…(1) in
violation of section…3802 (relating to driving under influence of
alcohol or controlled substance).
75 Pa.C.S. § 1547(a)(1).
* Retired Senior Judge assigned to the Superior Court.
J-S61042-14
Instantly, the police had ample probable cause to believe Appellant
was DUI. Accordingly, Appellant’s claim must fail.
Additionally, as to Appellant’s third issue, I believe his 2119(f)
statement does raise a substantial question, and would address his issue on
the merits.1 However, the record clearly refutes Appellant’s claim. The trial
court was presented with two pre-sentence investigations, as well as a letter
from Appellant’s former employer and documentation that Appellant sought
alcohol treatment while incarcerated. Acknowledging those efforts, but
concluding that they came too late, the trial court imposed sentence.
Where, as here, the sentencing judge had the benefit of a presentence
investigation report, we presume that he was aware of the relevant
information regarding the defendant’s character, and weighed those
considerations along with mitigating statutory factors. Commonwealth v.
Tirado, 870 A.2d 362, 368 (Pa. Super. 2005); Commonwealth v. Burns,
765 A.2d 1144, 1150-51 (Pa. Super. 2000). Accordingly, Appellant is not
entitled to relief.
For the foregoing reasons, I concur in the affirmance of Appellant’s
judgment of sentence.
1
See Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009)
(holding that Ventura’s contention that the trial court court imposed
sentence based solely on the seriousness of the offense and failed to
consider all relevant factors raised a substantial question); Commonwealth
v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (holding that the trial
court’s failure to consider rehabilitative needs of a defendant and the
protection of society in fashioning a sentence raises a substantial question).
-2-