Com. v. McCord, Y. ( 2022 )

J-S33035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YOLANDA LYNN MCCORD :
:
Appellant : No. 1052 EDA 2022
Appeal from the Judgment of Sentence Entered February 14, 2022
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002454-2020
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 28, 2022
Yolanda Lynn McCord (“McCord”) appeals from the judgment of
sentence imposed following her convictions for driving under the influence –
highest-tier, driving under the influence – general impairment, and careless
driving.1 We affirm.
The trial court summarized the facts relevant to this appeal as follows:
Pennsylvania State Police Trooper Paul Figas [and his partner]
observed a blue Honda Civic that appeared to be stuck in a grassy
area between the Mueller’s Bar and Grill parking lot and Route 209
in Middle Smithfield Township at approximately 02[:]30 on May
26, 2019. The vehicle’s four-way flashers were on, the passenger
door was open, the car was idling and people who appeared to be
arguing were standing in front of the vehicle. . .. The troopers
learned that the people arguing had been the occupants of the
vehicle. The keys to the vehicle were still in the ignition. The
troopers. . . determined that the registered owner of the vehicle
was [McCord] . . . who was present on the scene. Ms. McCord
was asked several times by the troopers if she was the driver who
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1 See 75 Pa.C.S.A. §§ 3802(c), 3802(a), 3714.
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drove the vehicle to that location and she said she was. Trooper
Figas observed that McCord ha[d] bloodshot, glassy eyes, an odor
of alcoholic beverage emanating from her person, and was
showing signs of impairment. He asked McCord if she had been
drinking and she responded that she had “had three shots. . ..”
Trooper Figas observed numerous clues of impairment during Ms.
McCord’s [field sobriety] tests. She was then asked to provide a
preliminary breath test, which she did. The test indicated the
presence of alcohol. Trooper Figas did not believe Ms. McCord
could safely operate the vehicle and he placed Ms. McCord in
custody . . .. She was taken . . . for a blood draw, which she
consented to. The results of a blood draw were a BAC[2] of
.24%. . ..
Ms. McCord called Heaven Jones at trial. Ms. Jones testified
that she was Ms. McCord’s ex-girlfriend and was at the scene that
night in front of Muller’s bar when the police arrived. She testified
that she was the driver of the car not Ms. McCord. . .. [Ms. Jones]
was present when Ms. McCord admitted that she was driving the
car and when she took the field sobriety tests. She said she did
not admit to the trooper that she was the driver because she had
a suspended driver’s license and was on probation and did not
want to be charged with a violation. She testified that Ms. McCord
was lying when she told the trooper that she was driving.
Trooper Figas was recalled to the stand and testified that he
did not recall Ms. Jones being present on the scene, and that she
did not appear on the motor vehicle video recording that was
taken from his patrol vehicle.
Trooper Figas testified that Ms. McCord repeatedly told him
at the scene that she was driving the car which his investigation
had determined to be hers.
Trial Court Opinion, 5/11/22, at 2-4 (unnumbered) (internal citations
omitted).
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2 BAC refers to blood alcohol content.
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At the conclusion of McCord’s non-jury trial, the court found her guilty
of the above-listed offenses. On February 14, 2022, the trial court imposed a
sentence of three days to six months of incarceration. On March 3, 2022,
McCord filed an untimely motion to reconsider sentence, which the trial court
denied the same day.
On April 1, 2022, McCord filed a notice of appeal, and the trial court
issued a Rule 1925(a) opinion. This Court issued a rule to show cause why
McCord’s appeal should not be quashed as untimely. Counsel filed a response
indicating that she mistakenly believed she had filed a timely appeal from the
denial of her untimely post-sentence motion. This Court discharged the rule
to show cause subject to this panel’s right to revisit the issue.
On appeal, McCord raises the following issue for our review:
Whether the trial court erred in finding [McCord] guilty of driving
under the influence, highest rate[,] when the verdict was not
supported by the weight of the evidence?
McCord’s Brief at 7.
Preliminarily, we must consider whether we have jurisdiction to
entertain this appeal. See Commonwealth v. Green, 862 A.2d 613, 615
(Pa. Super. 2004) (en banc) (noting that the timeliness of an appeal implicates
jurisdiction and may be raised by the Court sua sponte); see also Pa.R.A.P.
903 (establishing general rule that appeal must be filed with thirty days of
entry of order from which appeal is taken).
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A direct appeal in a criminal proceeding lies from the judgment of
sentence. See Commonwealth v. Preacher, 827 A.2d 1235, 1236 n. 1 (Pa.
Super. 2003). A written post-sentence motion must be filed no later than ten
days after imposition of sentence. See Pa.R.Crim.P. 720(A). A sentence is
imposed on the date the trial court pronounced the sentence in open court.
See Green, 862 A.2d at 618-19.
Here, the trial court imposed McCord’s sentence in open court on
February 14, 2022. The certified record reveals that McCord filed her motion
to modify sentence on March 3, 2022, seventeen days after the imposition of
sentence. Because McCord did not file a timely post-sentence motion, her
notice of appeal was due on March 16, 2022, thirty days from the imposition
of sentence. See Pa.R.Crim.P. 720(A)(3). Thus, McCord’s April 1, 2022 notice
of appeal is untimely, and generally, an appellate court cannot extend the
time for filing an appeal. See Pa.R.A.P. 105(b). However, the Court may
grant relief in cases of a breakdown in the operation of the courts. See
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007).
In Patterson, this Court held that the failure to apprise the defendant
of the time to file an appeal, following the denial of untimely post-sentence
motions, constituted a breakdown in the operation of the courts. See id. at
499. The Patterson Court noted that Pa.R.Crim.P. 704(C)(3)(a) and
720(B)(4)(a) required the trial court to advise a defendant of his right to an
appeal, as well as the time within which the defendant must exercise those
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rights. See id. The trial court had failed to provide notice that an appeal
from the denial of untimely post-sentence motions must be filed within thirty
days of the entry of sentence. See id. at 498. The Patterson Court
concluded that the failure to provide the required notice of the time for taking
the appeal constituted a breakdown that excused the filing of an otherwise
untimely notice of appeal. See id. at 498-99.
The record here shows a similar breakdown in the operation of the
courts. The trial court’s order denying McCord’s untimely post-sentence
motion did not provide the notice of the time for taking an appeal that
Pa.R.Crim.P. 720(B)(4)(a) requires. See Order, 3/3/22. The trial court’s
compliance with the rule would likely have obviated the untimely filing of the
appeal because McCord had thirteen days remaining in the appeal period after
the trial court entered the order. Thus, we decline to quash McCord’s appeal
as untimely. See Patterson, 940 A.2d at 498-99.
McCord’s substantive issue asserts that the trial court’s verdict was
against the weight of the evidence because there were alleged gaps in the
evidence that she drank and then drove, and because the court failed to
properly weigh the testimony of Ms. Jones.
A challenge to the weight of the evidence must be preserved either in a
timely post-sentence motion, a written motion before sentencing, or orally
prior to sentencing. See Pa.R.Crim.P. 607(A)(1)-(3). A claim challenging the
weight of the evidence cannot be raised for the first time on appeal. See
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Commonwealth v. Weir, 201 A.3d 163, 167 (Pa. Super. 2018). This Court
will not overlook waiver simply because the trial court addressed the waived
issue in its 1925(b) opinion. See Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278, 1287-89 (Pa. Super. 2004) (en banc).
Prior to the weight issue she asserts on direct appeal, McCord made a
single claim raising a discretionary sentencing issue. McCord did not raise a
weight claim in a timely post-sentence motion, and her untimely post-
sentence motion raised only a sentencing challenge. Moreover, the record
does not contain any indication that McCord filed a written motion before
sentencing. Finally, McCord has failed to satisfy her obligation to direct us to
any place in the record where she raised a weight claim orally prior to
sentencing. See Pa.R.A.P. 2119(e) (stating that where an issue is not
reviewable on appeal unless preserved, an appellant must identify the place
where the issue was preserved).3 Her claim is accordingly waived, see Weir,
201 A.3d at 167, regardless of the fact that the trial court addressed it in its
opinion. See Melendez-Rodriguez, 856 A.2d at 1287-89. McCord
additionally waived her specific weight claims concerning alleged gaps in the
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3 McCord also did not ensure the presence of the transcript of the sentencing
hearing in the certified record, although she obtained transcript of the notes
of testimony of the trial, as was her obligation. See Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc). Matters that are not of
record may not be considered on appeal. See Commonwealth v.
Bracalielly, 658 A.2d 755, 763 (Pa. 1995).
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evidence and Jones’s alleged greater credibility by failing to include those
claims in her Rule 1925(b) statement where she made only the generic
assertion that “the verdict was not supported by the weight of the evidence.”
See Rule 1925(b) Statement, 5/2/22. See Commonwealth v. Pukowsky,
147 A.3d 1229, 1236 (Pa. Super. 2016) (holding that 1925(b) statement
which is too vague to allow the court to identify the issues raised on appeal
results in waiver).4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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4 Even were all these waivers disregarded, McCord’s challenges would be
meritless. McCord’s assertions that the verdicts were against the weight of
the evidence based on the alleged gaps in the evidence and Ms. Jones’s
testimony seek a reweighing of the evidence, something as appellate court
will not do. See Commonwealth v. Williams, 854 A.2d 440, 445 (Pa.
2004).
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