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Commonwealth v. Beck

Superior Court of Pennsylvania

October 10, 2013

COMMONWEALTH OF PENNSYLVANIA,
v.
ROBERT GENE BECK, Appellant

Appeal from the Judgment of Sentence July 2, 2012, in the Court of Common Pleas of York County, Criminal Division, at CP-67-CR-0007232-2010.

Joseph D. Seletyn, Esq.

BEFORE: MUNDY, OLSON, and STRASSBURGER [*] , JJ.

OPINION

STRASSBURGER, J.

Robert Gene Beck (Appellant) appeals from the judgment of sentence of three to six months' intermediate punishment after being convicted of driving under the influence (DUI - general impairment), driving under the influence (DUI - high rate of alcohol), and violating duties at a stop sign.[1]We affirm.

The trial court summarized the underlying facts of this case as follows:
On July 3, 2010, Officer Isaiah Emenheiser with the Northern York County Regional Police Department was part of a team of officers conducting a field sobriety checkpoint in Northern York Borough. Officer Emenheiser was assigned to the roving traffic safety and enforcement car. Just before 1:00 a.m., Officer Emenheiser observed a blue Pontiac driven by Appellant fail to come to a complete stop at a stop sign. After Officer Emenheiser stopped the Pontiac and made contact with the driver, he noticed that an odor of an intoxicating beverage emanated from Appellant's breath and person, that Appellant had glassy eyes, and that Appellant had slowed speech.
Appellant confirmed he had been drinking and agreed to perform field sobriety tests. Officer Emenheiser asked Appellant to perform the ABC test, which required Appellant to say the alphabet "A" to "Z" without stopping or singing. Appellant switched the order of the letters "E" and "F, " stating "A, B, C, D, F, E, G, " and left out the letters "Q" and "R, " stating "M, N, O, P, S, T, U, V." During the walk and turn test, Appellant "failed to walk in a straight line, " "missed heal-to-toe on several steps, " and "was off balance as he turned around." Appellant demonstrated the same behaviors on the return direction. During the last test, the one-leg-stand test, Appellant dropped his left foot after the count of two.
After completing the field sobriety test, Officer Emenheiser administered a preliminary breath test (PBT), which registered a positive reading for alcohol. Appellant was placed under arrest for driving while intoxicated and consented to a blood draw and chemical testing, which was completed at the check point. The rests of the chemical test revealed Appellant had a blood alcohol content of .125.

Trial Court Opinion, 1/1/2013, at 1-2 (citations to notes of testimony omitted).

On May 7, 2012, the trial court conducted a non-jury trial. At the conclusion of the Commonwealth's case in chief, the Commonwealth moved to amend the criminal information and add Count 3 - DUI - high rate of alcohol. N.T., 5/7/2012, at 133. Appellant objected, and after extensive testimony and argument, the trial court permitted the amendment. Id. at 135-54. The trial court found Appellant guilty of all three charges.

On July 2, 2012, the trial court sentenced Appellant at Count 3 to three to six months of intermediate punishment, fines, and court costs.[2]Appellant filed a timely post-sentence motion, which was denied on November 8, 2012. Appellant filed a timely notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents two issues for our review.

1. The United States Constitution as well as the Pennsylvania Constitution necessitates that a defendant has an absolute right to confront any witness at trial who is offering "testimony" against him. Where the Commonwealth failed to call the individual who physically performed a blood analysis ...

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