HomeMy WebLinkAboutCP-21-CR-1446-2003COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
THOMAS J.
EGENRIEDER, JR.
CP-21-CR- 1446-2003
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., September 7, 2004.
In this criminal case, Defendant was found guilty following a bench trial
before the undersigned judge of Driving under the Influence of Alcohol,~ Driving
on Roadways Laned for Traffic,2 Turning Movements and Required Signals,3 and
Restrictions on Alcoholic Beverages.4 He was sentenced on August 10, 2004, to
the statutorily mandated minimum sentence of 48 hours in prison on the charge of
driving under the influence. S
From the judgment of sentence, Defendant has filed an appeal to the
Pennsylvania Superior Court.6 The sole basis for the appeal has been expressed in
a statement of matters complained of on appeal as follows:
1. The trial court committed error of law when it denied
the Defendant's Pre-Trial motion to compel the District
Attorney to favorably consider the Appellant-Defendant's
application for ARD and/or rule that the denial of such
request for ARD consideration was capricious, arbitrary, an
1 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a), (4).
2 Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S. §3309.
3 Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S. §3334(a).
4 Act of June 22, 2000, P.L. 469, §2, 18 Pa. C.S. §7513, repealed, Act of September 30, 2003,
P.L. 120, §2 (effective February 1, 2004).
5 Order of Court, August 10, 2004. Penalties imposed for the Vehicle Code summary offenses of
Driving on Roadways Laned for Traffic and Turning Movements and Required Signals consisted
of statutory fines; the sentence for the Crimes Code summary offense of Restrictions on
Alcoholic Beverages consisted of a direction that Defendant pay the costs of prosecution. Id.
Defendant remains at liberty on his own recognizance pending disposition of his appeal to the
Pennsylvania Superior Court. Id.
6 Defendant's Notice of Appeal, filed August 17, 2004.
abuse of discretion, a denial of substantive or procedural due
process and/or a denial of equal protection. See
Commonwealth v. Elms [sic], 27 D.&C.4th 316 (Bucks 1994),
aff'd 651 A.2d 1143 (Pa. Super. 1995), appl. dism. 670 A.2d
137 (Pa. 1996).
2. The trial court committed an error of law when it
considered and permitted the District Attorney to consider
Defendant's two prior arrests for DUI, that resulted in a
dismissal at a preliminary hearing and a not guilty after trial,
to support the denial of ARD for the Appellant-Defendant on
a current DUI charge. See Commonwealth v. Taylor, 475 Pa.
564, 381 A.2d 418 at 419 (1977); Commonwealth v. Jackson,
475 Pa. 604, 381 A.2d 438 (1977).7
This opinion in support of the judgment of sentence is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
DISCUSSION
Defendant's omnibus pretrial motion for admission into the ARD program
was denied by an order of an en banc court on March 8, 2004. The rationale for
this order was set forth in an opinion by the Honorable Edgar B. Bayley which
accompanied the order. Judge Bayley's opinion is incorporated herein by
reference in support of the judgment of sentence.
BY THE COURT,
Jaime M. Keating, Esq.
Chief Deputy District Attorney
John B. Mancke, Esq.
2233 N. Front Street
Harrisburg, PA 17110
Attorney for Defendant
J. Wesley Oler, Jr., J.
Defendant's Concise Statement of Matters Complained of on Appeal; filed September 2, 2004.