Com. v. Nicoloudakis, F. ( 2023 )

J-A10033-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANKLIN D. NICOLOUDAKIS :
:
Appellant : No. 1441 EDA 2022
Appeal from the Judgment of Sentence Entered April 22, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-SA-0000584-2021
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 5, 2023
Appellant Franklin D. Nicoloudakis (“Appellant”) files this pro se appeal
from the judgment of sentence entered by the Court of Common Pleas of
Bucks County imposing a $25.00 fine as well as costs and penalties after the
trial court convicted Appellant of a summary violation pursuant to 75 Pa.C.S.A.
§ 3309 (disregarding traffic lane). After careful review, we affirm.
On August 26, 2021, at 9:28 p.m., Officer Joshua Kowalski of the Upper
Makefield Police Department was on patrol on Woodhill Road when he noticed
a silver Chevy Prizm in front of him that failed to remain in its traffic lane.
Notes of Testimony (N.T.), 4/22/22, at 16-18. Officer Kowalski indicated that
the vehicle was traveling eastbound on a two-lane road in which the opposing
lanes were separated by a double yellow line in the middle. Id. at 18-19.
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* Former Justice specially assigned to the Superior Court.
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While traveling on Woodhill Road, Officer Kowalski observed the vehicle
leave its lane of travel and cross over the center double yellow line into the
westbound lane on three occasions. Id. After the vehicle turned onto
Taylorsville Road and traveled southbound, Officer Kowalski saw the vehicle
cross a fourth time into the opposing lane of travel, at which time there was
traffic coming northbound. Id.
At that point, Officer Kowalski deemed the driver was driving
dangerously and initiated a traffic stop. Id. After Appellant performed field
sobriety testing and admitted to having been prescribed oxycodone, Officer
Kowalski placed Appellant under arrest for suspicion of DUI. Affidavit of
Probable Cause, 8/27/21, at 1-2. Appellant voluntarily submitted to a blood
test at a local hospital. Id.
Initially, Appellant was charged with a summary offense of disregarding
traffic lane (75 Pa.C.S.A. § 3309(1)) and DUI (75 Pa.C.S.A. § 3802(d)(2)),
but the Commonwealth subsequently withdrew the DUI charge at Appellant’s
preliminary hearing. On November 8, 2021, Appellant pled guilty to the
Section 3309 summary charge in the magisterial district court. On December
8, 2021, Appellant filed a notice of appeal from the summary conviction and
was granted leave to proceed in forma pauperis.
The trial court scheduled a trial de novo for February 4, 2022. Appellant
made a demand for discovery from the Bucks County District Attorney’s Office
and requested a continuance. On February 2, 2022, the trial court rescheduled
Appellant’s trial for March 11, 2022.
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Appellant filed a second request for a continuance indicating he had not
yet received a response from the Commonwealth to his demand for discovery.
The trial court rescheduled the trial for April 22, 2022.
On April 14, 2022, Appellant filed a third request for a continuance,
acknowledging that he had received the requested discovery on April 9, 2022,
but needed additional time so that he could “review, analyze, and conduct
legal research [to] compose a first class legal brief.” The trial court took no
action on this continuance request.
On April 22, 2022, Appellant appeared before the court on the day of
his scheduled trial where he renewed his request for a continuance based his
allegation that he needed additional time to prepare a brief. N.T. at 5. While
Appellant acknowledged that the Commonwealth provided him with lab
reports, the complaint, incident report, and a CD containing videos that
recorded Appellant’s entire encounter with police, Appellant claimed he could
not find “something on the outside to play [the CD]” and only saw the footage
that morning when the Commonwealth played it for him. Id. at 8, 10.
In addition, on the day of trial, Appellant referenced the fact that it was
Orthodox Holy Friday and claimed he should not have to be occupied with legal
matters on that date. Id. at 5. In response to questioning by the trial court,
Appellant admitted that he had never referenced this holiday as a basis for a
continuance in any of his written requests. Id. at 7.
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The trial court subsequently denied Appellant’s request for a
continuance and proceeded with the trial on the Section 3309 charge.1 The
Commonwealth called Officer Kowalski to testify and admitted dashcam videos
which corroborated Officer Kowalski’s testimony that Appellant’s vehicle
crossed the center double yellow line four times. The video also showed that
on the final time Appellant crossed the double yellow line, there was a vehicle
coming in the opposing lane.
At the conclusion of trial, the trial court convicted Appellant of a violation
of Section 3309 and sentenced Appellant to a fine of $25.00 along with court
costs and penalties. After Appellant filed a timely notice of appeal, the trial
court ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) and noted that “[a]ny issue not properly
included in the statement timely filed and served pursuant to Rule 1925(b)
shall be deemed waived.” Order, 6/15/22, at 1.
Appellant raises the following issues on appeal:
1. Does a pro se litigant have a constitutional right to access the
same information that a defense lawyer can?
2. Does the denial of that same information available to a lawyer
but deliberately withheld a pro se litigant impinge on the right
to self-representation prior to the preliminary hearing?
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1 Appellant was not represented by counsel and his continuance request was
not based on his desire to retain counsel. Further, Appellant did not request
that counsel be appointed. See also Pa.R.Crim.P. 122 (providing that counsel
shall be appointed in “all summary cases, for all defendants who are without
financial resources or who are otherwise unable to employ counsel when there
is a likelihood that imprisonment will be imposed”)(emphasis added).
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3. Is the preliminary hearing a crucial state of the prosecution?
4. Does the denial of D.U.I. lab report [by NMS Lab in Horsham,
PA as well as the Upper Makefield P.D.] regarding the blood
sample taken on the night in question constitute an abuse of
discretion?
5. Did the denial of that lab report and the video cam of the motor
vehicle stop and arrest by the Upper Makefield P.D. prior to
[and after] the preliminary hearing incapacitate the
defendant’s ability to prepare a motion to suppress all the
evidence?
6. How is the Court declining to grant an adjournment of trial to
a pro se defendant to observe his solemn religious rite
[Orthodox Holy Friday], secure authentication of medical
documents and prepare adequately his defense strategy
comport with fundamental fairness?
7. Was the Court’s restriction on cross-examination of the D.U.I.
sobriety walk, interrogation, and arrest an abuse of discretion
given the Affidavit of Probable Cause [revolving around the
erroneous belief of intoxication] is fused into the entire case?
8. Does the trial court prohibiting the scope of cross-examination
as the base for the D.U.I. arrest violate fundamental fairness
as well as established case law?
9. Given all that appellant suffered from the arrest and being
falsely accused of a crime, how is the Court justified in ignoring
altogether the motion to dismiss the traffic violation on de
minimis grounds?
10. Was the arresting officer’s failure to give weight to
appellant’s dislocated ankle, handicapped symbol on his
vehicle, explanation that he was fatigued when forcing the
sobriety walk a clear-cut example of his eagerness or
overzealousness to make an arrest?
Appellant’s Brief, at iv-v (brackets in original, suggested answers omitted).
We initially note that Appellant’s brief fails to comply with our rules of
appellate procedure. Although Appellant’s statement of the questions
presented raises the aforementioned ten issues, the argument section of his
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appellate brief contains a disjointed, rambling discussion of numerous
arguments Appellant wishes to raise. Pa.R.A.P. 2119 (“[t]he argument shall
be divided into as many parts as there are questions to be argued”).
Nevertheless, as we can discern Appellant’s claims for relief, we will not
quash the appeal and will limit our discussion to the claims set forth in
Appellant’s statement of questions involved.2 See Pa.R.A.P. 2116(a) (“[n]o
question will be considered unless it is stated in the statement of questions
involved or fairly suggested thereby”).
In the first five issues, Appellant suggests that he was denied
appropriate discovery from the prosecution in that he did not have the
opportunity before his preliminary hearing to review the lab report relative to
his blood draw or the dashcam video of his entire encounter with police.
This claim is meritless as Appellant was not entitled to discovery of these
materials prior to his preliminary hearing. It is well-established that “[t]here
is no general constitutional right to discovery in a criminal case.”
Commonwealth v. Murphy, 425 A.2d 352, 357 (Pa. 1981) (quoting
Weatherford v. Bursey, 429 U.S. 545, 559 (1977)). Our Court has
interpreted Pennsylvania Rule of Criminal Procedure 573, which governs
pretrial discovery, to find that “pre-trial discovery is generally not available to
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2 Although Appellant asks this Court to “liberally construe and modify the rules
of appellate procedure” to excuse errors or omissions in his pro se brief “in
the interest of justice,” our courts have “long recognized that we must demand
that pro se litigants substantially comply with our rules of procedure.”
Commonwealth v. Spuck, 86 A.3d 870, 874 (Pa.Super. 2014).
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an accused at the preliminary hearing stage of criminal proceedings.”
Commonwealth v. Jackson, 785 A.2d 117, 119 (Pa.Super. 2001) (quoting
Commonwealth v. Sanders, 489 A.2d 207 (Pa.Super. 1985)). Further, we
note that the pretrial discovery rules in Rule 573 are not generally applicable
to summary offenses. Commonwealth v. Lutes, 793 A.2d 949, 960
(Pa.Super. 2002).
Our review of the record shows that the Commonwealth provided
Appellant with all of the discovery materials he requested as a matter of
courtesy. While Appellant claims that the delay in receiving the discovery
materials prevented him from filing a suppression motion, Appellant has not
articulated any argument that he would have raised in this purported
suppression motion. As a result, we decline to review this claim further.
In his sixth claim, Appellant claims the trial court erred in denying his
third motion for continuance of his trial date which fell on Orthodox Holy Friday
as Appellant needed to secure authentication of his medical documents and
prepare his defense strategy.
[I]t is well-settled that the decision to grant or deny a request for
a continuance is within the sound discretion of the trial court.
Commonwealth v. Pries, 861 A.2d 951, 953 (Pa.Super. 2004).
Discretion is abused when “the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill-will, as shown by the evidence
or the record....” Commonwealth v. Chambers, 546 Pa. 370,
685 A.2d 96, 104 (1996) (quotation omitted).
Commonwealth v. Taylor, 277 A.3d 577, 588 (Pa.Super. 2022).
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With respect to Appellant’s argument that the trial court erred in failing
to grant his continuance request as he should not be occupied with legal
matters on Holy Friday, Appellant failed to raise this specific claim in his court-
ordered Rule 1925(b) statement.
It is well-established that any issue not raised in a Rule 1925(b)
statement will be deemed waived for appellate review. See
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 ([Pa.]
1998). Further, an appellant's concise statement must identify the
errors with sufficient specificity for the trial court to identify and
address the issues the appellant wishes to raise on appeal. See
Pa.R.A.P. 1925(b)(4)(ii) (requiring a Rule 1925(b) statement to
“concisely identify each ruling or error that the appellant intends
to challenge with sufficient detail to identify all pertinent issues for
the judge”).
Commonwealth v. Arnold, 284 A.3d 1262, 1278–79 (Pa.Super. 2022)
(quoting Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super.
2020)). As Appellant did not specifically claim in his Rule 1925(b) statement
that the trial court erred in failing to grant a continuance so that he could
observe the Good Friday holiday, it is waived on appeal.3
In addition, Appellant’s third request for a continuance of trial was based
on his contention that he needed additional time to prepare a brief, although
the trial court had not requested that the parties file any briefs. We again note
that the Commonwealth provided Appellant with the discovery materials,
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3 Appellant concedes that he did not ask the trial court for a continuance on
this basis in his written requests but waited to raise this claim orally on the
day of trial on April 22, 2022, which fell on Good Friday. Moreover, Appellant
never claimed before the lower court that he desired to continue the trial from
Good Friday for the purposes of religious observance, but merely claimed he
did not wish to be “occupied with legal matters” on that date.
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although not required to do so, with sufficient time for Appellant to review
them before trial.
While Appellant asserts that he was unable to review the dashcam
videos on the CD in the discovery packet until the morning of trial, the trial
court found this claim was not credible given that it would not have taken
much effort to locate equipment to view the recording. Rather, the trial court
determined that Appellant chose not to review the discovery materials before
trial and viewed Appellant’s excuses as a pretext for requesting a third
continuance of his trial. Accordingly, the trial court did not abuse its discretion
in denying Appellant’s third request for a continuance.4
In its seventh and eighth issues, Appellant argues that the trial court
abused its discretion in limiting his cross-examination of Officer Kowalski with
respect to Appellant’s sobriety testing, interrogation, and arrest. We agree
with the trial court’s assessment that this line of questioning was irrelevant in
Appellant’s trial on the Section 3309 offense (disregarding traffic lane).
Our rules of evidence provide that “[e]vidence that is not relevant is not
admissible.” Pa.R.E. 402. Evident is “relevant” when it “has any tendency to
make a fact more or less probable than it would be without the evidence, and
the fact is of consequence in determining the action.” Pa.R.E. 401.
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4 To the extent that Appellant argues that he should have been granted a
continuance to authenticate the exhibits he intended to admit at trial,
Appellant did not raise this claim before the trial court as a basis for requesting
a continuance before trial. “Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
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During cross-examination, Appellant focused his inquiry on events that
occurred after he was subjected to the vehicle stop. Appellant asked Officer
Kowalski why he directed Appellant to step out of the vehicle, why he did not
consider Appellant’s handicap sticker or injured ankle in assessing whether
Appellant passed field sobriety testing, and whether he took Appellant to the
hospital for a blood test.
However, Appellant was being prosecuted solely for a violation of
Section 3309 and Officer Kowalski had testified that he determined that
Appellant had violated this provision based on his observations of Appellant’s
conduct before he pulled Appellant’s vehicle over. As noted above, Officer
Kowalski saw Appellant’s vehicle cross the center double yellow line on four
occasions, including one time in which a vehicle was traveling in the opposite
direction. Appellant does not challenge these assertions or the dashcam video
recordings that corroborate Officer Kowalski’s testimony.5
When asked for an offer of proof to justify why his questioning was
material to the crime at issue, Appellant suggested Officer Kowalski had
improper motives for arresting him for DUI. Appellant took offense to the fact
that Officer Kowalski suspected that Appellant was intoxicated while driving.
Given that the DUI charge was withdrawn at Appellant’s preliminary
hearing, Appellant’s trial was solely based on the Section 3309 charge, and
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5 Appellant has neither argued that Officer Kowalski lacked the requisite
suspicion to stop his vehicle nor that there was insufficient evidence to support
his conviction under Section 3309.
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Officer Kowalski determined that Appellant had violated Section 3309 before
he initiated the traffic stop, the trial court correctly determined that
Appellant’s lines of questioning regarding Officer Kowalski’s motives for
charging him with DUI were irrelevant to Appellant’s defense. As such, the
trial court properly limited Appellant’s cross-examination of Officer Kowalski.
In the ninth issue for review, Appellant contends that the trial court
should have dismissed the violation under Section 3309 on de minimis
grounds as he did not injure anyone or cause any property damage when his
vehicle crossed over the center double yellow line of the roadway.
In support of this argument, Appellant cites to Section 312 of the Crimes
Code, which states in relevant part:
§ 312. De minimis infractions
(a) General rule.-The Court shall dismiss a prosecution if, having
regard to the nature of the conduct charged to constitute an
offense and the nature of the attendant circumstances, it finds
that the conduct of the defendant:
(1) was within a customary license or tolerance, neither
expressly negatived by the person whose interest was
infringed nor inconsistent with the purpose of the law
defining the offense;
(2) did not actually cause or threaten the harm or evil
sought to be prevented by the law defining the offense or
did so only to an extent too trivial to warrant the
condemnation of conviction; or
(3) presents such other extenuations that it cannot
reasonably be regarded as envisaged by the General
Assembly or other authority in forbidding the offense.
18 Pa.C.S.A. § 312(a).
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Appellant concedes that his vehicle crossed the center double line
dividing opposing lanes four times. However, Appellant focuses on the
language in Section 312(a)(2) in asserting he was entitled to leniency on his
Section 3309 charge as he did not cause any harm and his offense was trivial.
Appellant claims “[t]here are motor vehicle offenses far more odious than
someone crossing the middle line of a two lane road – especially where there
was no speeding, [and] no attempt to elude the police when the [patrol car]
lights were activated.” Appellant’s Brief, at 16.
There is no authority to support Appellant’s suggestion that a driver
must cause an accident in order to be convicted of a Vehicle Code violation.
Rather, the evil that Section 3309 is meant to protect against is the potential
harm to other drivers, pedestrians, and property when a vehicle fails to
maintain its traffic lane. It is well-established that “[t]he primary purpose of
the Motor Vehicle Code and its amendments is to protect and promote public
safety and property within the Commonwealth.” Commonwealth v.
DeFusco, 549 A.2d 140, 142 (Pa.Super.1988).
We do acknowledge that technical violations of the Vehicle Code may be
dismissed when a driver acted reasonably under the circumstances. In
Commonwealth v. Slattery, 139 A.3d 221, 225 n.8 (Pa.Super. 2016), this
Court found a defendant’s delay in activating his left turn signal to change
lanes was a de minimis infraction where it was reasonable for the defendant
wait to signal to avoid compromising the safety of the vehicles behind him.
However, Appellant offers no argument or legitimate reason to show that it
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was reasonable for Appellant to cross the center double yellow line dividing
opposing lanes on multiple occasions, especially when oncoming traffic was
approaching.
In his tenth issue for review, Appellant suggests that his Section 3309
conviction should be vacated as he alleges that Officer Kowalski was an
“overzealous small-town cop” who was overly eager to make an arrest for
DUI. Appellant argues that Officer Kowalski arrested him on suspicion of DUI
without considering Appellant’s physical disabilities. Further, Appellant claims
the trial court should have dismissed his Section 3309 conviction as he
suffered mental anxiety from being “falsely accused” and arrested for DUI and
experienced physical pain from being handcuffed and sitting in a police car.
There is no merit to Appellant’s claim that he was entitled to an acquittal
of the Section 3309 offense based on sympathy. See e.g. Commonwealth
v. Pope, 14 A.2d 139, 144 (Pa.Super. 2011) (rejecting the argument that a
jury should return a verdict “based on mercy rather than fact”).
Further, Appellant fails to include offer any legal authority to support his
claim that he is entitled to an acquittal on the Section 3309 charge, which he
clearly committed, simply because the DUI charge was withdrawn. See
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014) (when
the appellant fails to cite to legal authority and does not develop any
meaningful analysis in support of a claim, we may find an issue waived for
lack of development).
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Lastly, to the extent that Appellant believes that Officer Kowalski
improperly arrested him for suspicion of DUI, this was not the appropriate
forum to seek relief.6 The sole matter before this Court is the appeal of
Appellant’s summary conviction under Section 3309. It is undisputed that the
Commonwealth presented sufficient evidence to prove that Appellant violated
Section 3309 when the testimony of the arresting officer and video recordings
confirm that Appellant’s vehicle crossed the center double yellow line four
times. Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2023
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6 Nevertheless, we acknowledge that Trooper Kowalski based his suspicion
that Appellant was driving under the influence of a controlled substance after
he observed Appellant swerving into the opposing lane of traffic four times
and Appellant admitted to taking Oxycodone.
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