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jerrybrownlaw · 5 years ago

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Appeal from the Judgment of Sentence November 3, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000907-2017 BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY DUBOW, J.:

Former Justice specially assigned to the Superior Court.

Appellant Christopher Siclari seeks review of the Judgment of Sentence following a bench trial and convictions of Driving Under the Influence ("DUI") - General Impairment, DUI-High Rate of Alcohol, and Careless Driving. He challenges the denial of his suppression motion, the sufficiency of the evidence, and the admission of the laboratory blood test results. After careful review, we conclude that (1) the court did not err in denying the suppression motion; (2) sufficient evidence supported the Appellant's convictions; but (3) the admission of the laboratory's report through a "surrogate witness" violated Appellant's constitutional rights of confrontation. We, thus, affirm in part, vacate in part, and remand for resentencing.

75 Pa.C.S. §§ 3802(a)(1), 3802(b) and 3714(a), respectively.

In its February 13, 2018 Order denying post-sentence relief, the trial court set forth a detailed recitation of the facts of this case, which we summarize as follows. On January 2, 2017, at approximately 2:00 p.m., the custodian of the Nazareth Area Middle School called 911 to report that he had observed, for the previous 20 minutes, a man asleep or passed out in the driver's seat of a pickup truck that was parked across several parking spaces in the school's parking lot. Officer David Gentile of the Upper Nazareth Township Police Department responded to the report and drove to the school to conduct a welfare check. When he arrived, he parked his marked vehicle 15-20 feet behind the pickup truck, which had its brake and reverse lights activated and its engine running. Appellant did not respond when Officer Gentile attempted to rouse him through the truck's open window.

As Officer Gentile was returning to his patrol car after radioing for backup, Appellant's vehicle rolled back and hit the police vehicle. Officer Gentile then returned to the driver's side of the truck and ordered Appellant to turn off his vehicle and get out of the car. Appellant complied, and an officer placed him in handcuffs.

In speaking with Appellant, Officer Gentile noted the odor of alcohol; he also observed an open can of Miller Lite in the cab of Appellant's vehicle, as well as a case of beer. After Appellant performed poorly on field sobriety tests—losing his balance, counting too slowly, taking too many steps, mumbling—he told Officer Gentile that he had been drinking at a friend's house and did not know how he ended up in the school's parking lot. Officer Gentile detained Appellant for suspicion of driving under the influence ("DUI") and transported him to the hospital for a blood test.

At the hospital, Officer Gentile read the DL-26B form warnings, as revised in 2016, and Appellant consented to the blood draw, which occurred approximately one hour and fifteen minutes after Officer Gentile first encountered Appellant. Laboratory tests indicated Appellant had a blood alcohol content ("BAC") of 0.108%. The Commonwealth charged Appellant with two counts of DUI and one count of reckless driving.

Appellant retained counsel who filed an omnibus pre-trial Motion, including a Motion to Suppress the results of the blood alcohol test. The court scheduled the Motion for a hearing, but on the day of the hearing, counsel chose not to pursue the Motion at that time. The court scheduled the matter for trial several times, but on each occasion, Appellant's counsel reported having a conflict shortly before the trial. The court subsequently scheduled trial for the week of September 21, 2017, to accommodate defense counsel's schedule.

On September 21, 2017, prior to the start of Appellant's bench trial, the court held a hearing on the Motion to Suppress, at which the custodian and Officer Gentile testified regarding the vehicle stop precipitating Appellant's detention. The court denied the Motion to Suppress, and Appellant's bench trial proceeded.

At trial, the Commonwealth presented testimony from Nadine Koenig, the manager and custodian of records of Health Network Laboratories. Over Appellant's objections, she testified regarding the laboratory's report showing that Appellant's blood sample contained a BAC of .108%, although she had not conducted the testing, prepared the report, or certified its contents. Appellant's counsel vigorously cross-examined Ms. Koenig.

After the Commonwealth rested, Appellant's counsel indicated that Appellant's expert witness was not present in the courthouse and counsel was unable to contact him by phone. At no time prior to trial had Appellant informed the court or the Commonwealth that he intended to present evidence from an expert. At trial, Appellant did not proffer an expert report, nor did he state the name of the expert for the record. Appellant's counsel requested a continuance, which the court denied. The defense then rested without submitting evidence.

The court found Appellant guilty and ordered a pre-sentence investigation. Appellant retained new counsel.

On November 3, 2017, the court sentenced Appellant as a second DUI offender to, inter alia, a term of 45 days to 6 months' incarceration and a $25.00 fine plus costs on the careless driving conviction. Appellant filed a Post-Sentence Motion and a Supplemental Post-Sentence Motion, which the court denied on February 13, 2018. See Order and Statement of Reasons, filed Feb. 13, 2018.

The DUI convictions merged for purposes of sentencing.

Appellant timely appealed. Appellant filed an ordered Pa.R.A.P. 1925(b) Statement; the trial court filed an Opinion pursuant to Rule 1925(a).

Appellant presents the following Statement of Questions Presented:

1. Where the Commonwealth's evidence at the Suppression Hearing fell short of establishing probable cause that Appellant was driving under the influence, did the lower [c]ourt err in not suppressing the blood evidence? 2. Where the Commonwealth did not present evidence as to when Appellant last drove, was the evidence insufficient as a matter of law to prove convictions under 75 Pa.C.S. § 3802(a)(1) which is an "at the time of driving" offense, or under § 3802(b), which requires the blood to be taken within two hours of driving? Further was the evidence insufficient as a matter of law to prove § 3802(a)(1) where the BAC was barely .10%, and there was no evidence of erratic driving, blood shot eyes, lack of balance, strong odor of alcohol or any of the other typical indicia of unsafe driving? 3. Where the Commonwealth merely presented a surrogate witness and not the "analyst" required by Commonwealth v. Yohe , 79 A.3d 520 [ ] (Pa. 2013), to testify as to the blood alcohol testing and analysis, did the lower [c]ourt deny the right of confrontation when the [c]ourt overruled trial [c]ounsel's objection to this testimony? 4. Where Appellant's expert toxicologist was unable to either appear or be contacted by defense [c]ounsel and had expertise which could have contradicted the Commonwealth's evidence and/or would have been able to present evidence reflecting that the Commonwealth blood alcohol evidence was not reliable and/or was below .10%, did the lower [c]ourt err in not granting a new trial?

Appellant's Brief at 4-5.

Suppression Motion

In his first issue, Appellant contends that "[t]he police lacked probable cause to place [Appellant] under arrest for suspicion of driving under the influence based on the evidence presented at the Suppression Hearing. This evidence fell short of establishing probable cause, and this Court should hold that the evidence should have been suppressed[.]" Appellant's Brief at 17. He asserts that because "[t]here was no testimony presented at that hearing that he was swaying, slurring his words, smelling of alcohol, any evidence he was unable to drive safely or any other indicia of impaired driving," the Commonwealth's "presentation fell woefully short of that required to demonstrate probable cause. Accordingly, the evidence should have been suppressed[.]" Id. at 23. We conclude Appellant waived this issue by failing to preserve it in his Motion to Suppress.

"Although the burden in suppression matters is on the Commonwealth to establish 'that the challenged evidence was not obtained in violation of the defendant's rights,' Pa.R.Crim.P. 581(D), that burden is triggered only when the defendant 'state[s] specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.'" Commonwealth v. Freeman , 128 A.3d 1231, 1241-42 (Pa. Super. 2015) (quoting Commonwealth v. McDonald , 881 A.2d 858, 860 (Pa. Super. 2005). Thus, "[w]hen a defendant's motion to suppress does not assert specifically the grounds for suppression, he or she cannot later complain that the Commonwealth failed to address a particular theory never expressed in that motion." Freeman , supra at 1242. See also Commonwealth v. Quaid , 871 A.2d 246, 249 (Pa. Super. 2005) ("[W]hen a motion to suppress is not specific in asserting the evidence believed to have been unlawfully obtained and/or the basis for the unlawfulness, the defendant cannot complain if the Commonwealth fails to address the legality of the evidence the defendant wishes to contest.").

In his Suppression Motion, after noting only that he was arrested for suspicion of DUI after parking in the parking lot, Appellant baldly asserted that his initial arrest for suspicion of DUI was made without probable cause or reasonable grounds to believe he was DUI. See Motion to Suppress at ¶¶ 14, 17. He then sought suppression only of the blood test results based on a Birchfield claim. See Motion to Suppress, filed 6/8/17, at ¶¶ 17-19, 27-32. Nothing in his Motion to Suppress mentioned the circumstances leading up to his arrest for DUI, and the only evidence he sought to suppress in the Motion was the blood test result. Accordingly, we conclude Appellant failed to preserve this issue in his Motion to Suppress and it is, thus, waived.

Birchfield v. N. Dakota , 136 S.Ct. 2160 (U.S. 2016) (holding tests results of a blood sample obtained under threat of enhanced sentencing for refusal to consent to blood test are inadmissible).

Sufficiency of the Evidence supporting DUI convictions under 75 Pa.C.S. § Section 3802(a)(1) and (b)

Appellant next contends that "[t]here is an absolute dearth of evidence as to when [he] drove although we cannot deny that he did so" and, thus, "the Commonwealth did not prove that [he] drove within [the] two-hour window of time [provided in 75 Pa.C.S. § 3802(b)], except for the involuntary act [after] being awakened by the Officer after he was parked in the parking lot." Appellant's Brief at 25-26. He, thus, contends that the Commonwealth could not prove that he had a blood alcohol content over .10% within two hours of last driving (§ 3802(b)) or was under the influence of alcohol so as to be incapable of safe driving at the time he pulled into the school parking lot (3802(a)(1)[)]." Id. at 23-24.

Appellant also summarily asserts that because there was "no evidence of [a] volitional act and no evidence that [Appellant] had voluntarily driven the vehicle after being awakened," the conviction for careless driving pursuant to Section 3714 is based "on an improper footing." Id. at 25-26. That is the sum and substance of his argument challenging the sufficiency of the evidence supporting his careless driving conviction. He cites no supporting case law and fails to develop his argument. "The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority. Failure to do so constitutes waiver of the claim." Giant Food Stores , LLC v. THF Silver Spring Dev., L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (citations omitted). See Pa.R.A.P. 2101 (conformance with briefing rule required); 2111 (briefing requirements); 2119 (requiring that a brief has, among other things, argument with citation to authorities and reference to the record). As this Court has made clear, we "will not act as counsel and will not develop arguments on behalf of an appellant." Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) (citation omitted). Where defects in a brief "impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived." Id. (citations omitted). Because of Appellant's failure to develop his careless driving challenge, we are unable to provide meaningful review. The challenge is, thus, waived.

Our standard of review applicable to challenges to the sufficiency of evidence is well settled. "Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, and taking all reasonable inferences in favor of the Commonwealth, the reviewing court must determine whether the evidence supports the fact-finder's determination of all of the elements of the crime beyond a reasonable doubt." Commonwealth v. Hall , 830 A.2d 537, 541-42 (Pa. 2003). A conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014). In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for that of the fact-finder. Id.

Further, "[t]he facts and circumstances proved must, in order to warrant a conviction, be such as to establish the guilt of the defendant, not necessarily beyond a moral certainty, nor as being absolutely incompatible with his innocence, but at least beyond a reasonable doubt." In Interest of J.B., 189 A.3d 390, 408 (Pa. 2018) (citation omitted).

The court convicted Appellant of DUI pursuant to Section 3802(a)(1) and (b), which provide:

(a) General impairment.—

(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. * * *

(b) High rate of alcohol.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802.

To establish that one is incapable of safe driving ... the Commonwealth must prove that alcohol has substantially impaired the normal mental and physical faculties required to operate the vehicle safely; "substantial impairment" means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. The meaning of substantial impairment is not limited to some extreme condition of disability. Section 3802(a)(1), like its predecessor, is a general provision and provides no specific restraint upon the Commonwealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving.

Commonwealth v. Kerry , 906 A.2d 1237, 1241 (Pa. Super. 2006) (citations and internal quotation marks omitted).

"The types of evidence that the Commonwealth may proffer in a subsection 3802(a)(1) prosecution include[,] but are not limited to . . . the offender's actions and behavior, including manner of driving[;] ... demeanor, including toward the investigating officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech." Commonwealth v. Segida , 985 A.2d 871, 879 (Pa. 2009).

Appellant concedes he drove the car into the parking lot. At trial, Officer Gentile testified that Appellant had stopped his vehicle perpendicular to the parking spaces in the school lot, left the engine running in reverse gear with his foot on the brake, and was unresponsive as he sat slumped over his steering wheel. After Appellant's vehicle rolled backwards into the patrol car, Appellant got out of the driver's seat exuding an odor of alcohol. Officer Gentile then saw an open can of beer in the car, along with a case of beer. In addition, Officer Gentile testified that Appellant performed poorly on his field sobriety tests and admitted to Officer Gentile that he had been drinking at a friend's house and did not know how he got to the school parking lot. The officer testified that he transported Appellant to the hospital where the phlebotomist drew Appellant's blood within an hour and fifteen minutes of the officer's initial encounter with Appellant.

The totality of this evidence and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to show beyond a reasonable doubt that Appellant was incapable of safe driving due to the consumption of alcohol when he was in actual physical control of the movement of the vehicle. Accordingly, Appellant's challenge to the sufficiency of the evidence garners no relief.

Appellant's sufficiency challenge is primarily based on an argument that the Commonwealth did not present certain evidence, i.e., when Appellant pulled into the parking lot, "how full [the opened can of beer in the car] was, when it was drunk, how cold it was or any other indicia of when it could have been drunk," and the fact that "the Commonwealth presented no evidence as to how drinking that much beer may have affected the BAC." Id. at 28. Our standard of review requires us to consider whether the evidence that was presented supports the convictions.

Confrontation Clause-BAC Report

Appellant next asserts that the court violated his Sixth Amendment right to confront witnesses by admitting the toxicology report through the testimony of Nadine Koenig, the manager of the blood-testing laboratory that generated the report. He contends that Ms. Koenig was an impermissible "surrogate witness" because she was neither the lab technician who performed the blood test nor the scientist who certified the test results. See Appellant's Brief at 34. Accordingly, pursuant to Commonwealth v. Yohe , 79 A.3d 520 (Pa. 2013), Bullcoming v. New Mexico , 564 U.S. 647 (2011), and Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009), Appellant asserts, the admission of the laboratory report violated his constitutional right to confront the witnesses against him. We agree.

"Whether the admission of the [t]oxicology [r]eport violated an [a]ppellant's rights under the Confrontation Clause is a question of law, for which our standard of review is de novo and our scope of review is plenary." Yohe , supra at 530.

The Confrontation Clause in the Sixth Amendment to the United States Constitution applies to both federal and state prosecutions and provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. Amend. VI. The right is a procedural one intended to ensure the reliability of evidence through cross-examination. Yohe , supra , at 530-31 (Pa. 2013) (citations omitted). Laboratory reports introduced at trial to establish a defendant's blood alcohol content are "testimonial" for purposes of the Confrontation Clause, thus requiring a witness competent to testify to the results in order to comport with the Sixth Amendment. Id. at 533-34 (reviewing Melendez-Diaz , supra , and Commonwealth v. Barton-Martin , 5 A.3d 363 (Pa.Super.2010)).

In DUI cases, the witness considered competent to testify regarding a blood analysis report is the analyst who certified the BAC level results or the laboratory technician who conducted the tests. See Yohe , supra at 527 (citing Bullcoming , 131 S.Ct. at 2713 (2011) (holding "the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess "the scientific acumen of Mme. Curie and the veracity of Mother Teresa.") (citation omitted)). "[S]urrogate testimony ... does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Bullcoming , supra at 2710.

In Yohe , supra , the Pennsylvania Supreme Court found no confrontation clause violation where the laboratory's forensic toxicologist, who directly supervised the lab technicians, testified regarding the report containing BAC results because he was the individual who certified the results.

Here, Ms. Koenig testified that she is the manager of the laboratory, but she did not prepare the report or certify the results. She described for the court the protocol used by her laboratory in analyzing blood samples. She stated that the laboratory uses both gas chromatography and enzymatic processes to test blood samples, prints out the information, and the technologist then reviews all of the data and prepares the reports that the analyst then reviews and certifies. N.T., 9/21/17, at 12. Ms. Koenig testified that, "in preparation for [Appellant's attorney] when I served [sic] the paper," she reviewed the raw data used to compile the report but stated that she did not "make any analysis or certification of that data [herself]." Id. at 10. Rather, she testified: "That form is correct and there is no problems [sic]." Id.

Ms. Koenig testified that as manager of the laboratory, she is considered the custodian of records. N.T., 9/21/17 at 8.

Ms. Koenig also informed the court of the names of both the laboratory technician who performed the test and the analyst who certified the results. The Commonwealth presented no evidence that those individuals were unavailable to testify at trial and that Appellant had had a prior opportunity to cross-examine them.

We agree with Appellant that, unlike the witness in Yohe , Ms. Koenig was a "surrogate witness:" notwithstanding her contention that she reviewed the raw data, she did not prepare the report or certify the results. Rather, she reviewed the data to ascertain that the form of the report was accurate. Accordingly, pursuant to Melendez-Diaz and Bullcoming , supra, the admission of the report showing Appellant's BAC level of 0.10% through the testimony of an individual who did not prepare the report or certify the results violated Appellant's constitutional right to confrontation.

The trial court concluded that because Ms. Koenig had 28 years' experience with the laboratory, had once been a certifying analyst herself, and had knowledge of the procedures and processes used to determine a patient's blood alcohol content, and because Appellant's counsel had vigorously cross-examined her, her testimony was admissible to support the admission of the BAC report. See Tr. Ct. Op., Feb. 13, 2018, at 16. Neither the Pennsylvania Supreme Court nor the United States Supreme Court has sanctioned such an extension of Melendez-Diaz and Bullcoming.

The Commonwealth urges this Court to conclude that the trial court's error was harmless. We disagree. As noted above, while the evidence sufficiently established that Appellant was generally impaired to support his conviction under 75 Pa.C.S. § 3802(a), the laboratory report was the pivotal piece of evidence showing that Appellant's BAC level fell within the range of defining DUI - High Rate of Alcohol in 75 Pa.C.S. § 3802(b), supra. Accordingly, the Commonwealth was required to call a competent witness, as defined in Bullcoming and Melendez-Diaz , supra, to testify as to Appellant's BAC level, i.e., the analyst who actually certified the BAC level results or the laboratory technician who conducted the tests. The Commonwealth's failure to do so rendered the admission of the laboratory report a constitutional violation. Melendez-Diaz , supra; Yohe , supra. We, thus, vacate Appellant's conviction under Section 3802(b) (High Rate of Alcohol).

Based on our disposition, we need not address Appellant's final issue challenging the court's denial of a new trial based on his expert's report raising "significant questions" about the laboratory's handling and analysis of Appellant's blood sample and opining that the blood alcohol testing was unreliable. Appellant's Brief at 42, 44. --------

Our disposition today leaves intact the convictions for DUI-General Impairment and Careless Driving. Because we vacate the DUI-High Rate of Alcohol, our disposition may upset the sentencing scheme. Accordingly, we vacate the Judgment of Sentence and remand to the trial court for resentencing.

Convictions under 75 Pa.C.S. § 3802(a)(1) and 3714(a) affirmed; conviction under 75 Pa.C.S. § 3802(b) vacated; case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________ Joseph D. Seletyn, Esq. Prothonotary Date: 9/12/19

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mikemortgage · 6 years ago

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Tesla has just 4 weeks for its stock to rally 21% — or pay a $920 million bill on bonds

The clock is now ticking for Elon Musk to avoid a US$920 million bill for Tesla Inc.

That’s the amount of debt coming due March 1 from convertible bonds issued back in 2014. Tesla can dodge the payout by exchanging the note for a mix of cash and stock — but only if the shares jump about 21 per cent from their current level, based on a 20-day averaging period that starts today.

The debt payment, the largest in the company’s history, would take a big bite out of Tesla’s cash just as Musk enters another challenging year. But while a rally to the US$359.87 price needed for a swap may be a long shot, it’s not an impossibility for a stock prone to heavy swings. And with the automaker scheduled to report fourth-quarter earnings Wednesday, a catalyst could be just around the corner.

RBC downgrades Tesla, says profits may have peaked

Tesla breaks ground on first factory outside U.S. in Shanghai

Tesla plunges after price cut on all its cars, disappointing Model 3 deliveries

“There’s always a glimmer of hope,” said Chris Hartman, a senior portfolio manager who specializes in convertible arbitrage at Aegon Asset Management. “With the volatility that can happen inside this stock, the market is clearly saying it’s possible for that stock to be at, near, or above US$360.”

Indeed, Tesla shares were trading as high as US$376 in December, propelled by blowout third-quarter earnings and a Bloomberg report that China was moving toward cutting its trade-war tariffs on imported U.S.-made cars. The Palo Alto, California-based company had eased concerns about upcoming debt maturities by posting US$881 million in positive free cash flow for the three months ended Sept. 30, adding credence to CEO Musk’s assertion that he won’t need to raise money to pay off the bonds.

Some analysts still doubt that’s plausible. Tesla could end the year with around US$2.6 billion in cash, including an additional US$2 billion in outside capital UBS Group AG analyst Colin Langan expects to be raised in 2019. The capital will be used to support the Model 3 ramp, construction of a factory in China, and planned production of the Model Y and Semi in 2020, according to a report Monday. He has a sell rating on the stock, and lowered its price target to US$220 from US$230.

New Woes

But the start of 2019 brought a spate of bad news that’s sent the shares down more than 20 per cent from their December high, to about US$296 at Monday’s close. Musk announced plans to lay off 7 per cent of Tesla’s work force, warning “the road ahead is very difficult” for making its Model 3 sedan more affordable for the masses. The company has cut prices and production on some of its vehicles. And trade tensions with China have yet to improve.

Now, Musk needs to assure investors that Tesla can ramp up production to enable a Model 3 priced at US$35,000 that would still be profitable. The cheapest configuration available so far has cost US$44,000, according to a Jan. 18 blog post.

With the debt maturities looming, analysts will be using Wednesday’s report to look at Tesla’s cash. It’s expected to generate US$411.5 million for the fourth quarter, according to a Bloomberg survey.

As of Sept. 30, Tesla had around US$3 billion of cash and equivalents, which would be more than sufficient to cover the US$920 million in principal, plus US$1.15 million in interest, on the convertible notes. Musk has already said that he plans to pay off the debt rather than refinance it.

Judging by the company’s fourth-quarter delivery figures, the company’s cash as of the end of 2018 could be in the US$3.5 billion to US$4 billion range, said Hitin Anand, an analyst at debt-research firm CreditSights Inc. in New York.

“They have the cash, but would rather have people convert,” Anand said by phone. “Will this put them in distress? No. But it won’t be ideal.”

Cash Calculation

Regardless, the company will be making some sort of payout. If Tesla’s stock rises and investors elect to convert, the automaker plans to settle the maturity with a 50-50 mix of cash and stock, Bloomberg reported last month. Holders have to make their decision two business days prior to maturity, or Feb. 27.

The cash component of that settlement is calculated over a 20-consecutive day trading period leading up to Feb. 26. Each trading day is assigned a value based on a volume weighted average price, or VWAP. To determine the cash amount, the average of the 20 VWAPs is multiplied by a predetermined conversion ratio of 2.7788, according to bond documents. Tesla would have to pay half of that amount in cash (up to US$500 per US$1,000 bond), while the other half would be settled through stock.

Bond investors seem to be less optimistic that this option will become a reality, as the price of the convertible note has fallen along with the shares. However, it’s still trading around par, so all hope is not lost.

–With assistance from Justin Kesheneff, Natasha Pojedinec and Dana Hull.

Bloomberg.com

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investmart007 · 7 years ago

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Miami Condo, Luxury Home Sales Rise in February; Prices Continue to Rise for Residential Properties

New Post has been published on https://goo.gl/Pdjn55

Miami Condo, Luxury Home Sales Rise in February; Prices Continue to Rise for Residential Properties

MIAMI /March 21, 2018 (STLRealEstate.News) — Miami existing condominium and total luxury home sales increased in February, according to a new report by the MIAMI Association of REALTORS® (MIAMI) and the Multiple Listing Service (MLS) system.

Miami-Dade County existing condominium sales—which are competing with one of the most robust new construction markets in the country — rose for the fourth consecutive month in February. Miami luxury $1-million-and-up sales jumped 31 percent, from 116 in February 2017 to 152 in February 2018.

“Miami $1-million-and-up home sales have surged in four of the last five months, a sign of the robust pent-up demand for Miami luxury properties,” said George Jalil, a Miami broker and the 2018 MIAMI chairman of the board. “In regards to Miami existing condos, a spike in condo transactions in the $200,000 to $300,000 range fueled another strong month for the sector.”

Federal tax reform, which was signed into law Dec. 22, sets a deductions cap for income, sales and property taxes at $10,000. The new cap is leading more residents of states with high property values and state income tax to purchase properties in states such as Florida, which has no state income tax and a pro-business tax structure. Condo Sales Rise for Fourth Consecutive Month

Miami existing condo sales increased for the fourth consecutive month, rising 3 percent to 983 from 954. The increase was fueled in a surge in entry-level home sales. Existing condo home sales in the $200,000 to $300,000 price range jumped 21.4 percent, from 220 in February 2017 to 267 in February 2018.

Single-family home sales decreased 6.9 percent, from 881 to 820. Lack of single-family home supply in mid-price ranges is negatively impacting sales despite strong demand.

Total existing Miami-Dade County residential sales decreased 1.7 percent year-over-year from 1,835 to 1,803. Total sales volume for all properties accounted for $864 million last month, up 3.6 percent from $834.1 million a year ago. Sales don’t include Miami’s multi-billion dollar new construction condo market.

Lack of access to mortgage loans continues to inhibit further growth of the existing condominium market. Of the 9,307 condominium buildings in Miami-Dade and Broward counties, only 12 are approved for Federal Housing Administration loans, down from 29 last year, according to Florida Department of Business and Professional Regulation and FHA.

Miami Luxury Sales Surge in February

Total Miami luxury $1-million-and-up sales jumped 31 percent, from 116 in February 2017 to 152 in February 2018.

Miami condo luxury sales jumped 30.9 percent, from 55 to 72, in February 2018. Miami condo luxury sales have risen in four out of the last five months (Feb. 2018, Jan. 2018, Dec. 2017 and Oct. 2017).

Miami single-family luxury home sales rose 31.1 percent, from 61 to 80. Miami single-family luxury sales have risen in four out of the last five months (Feb. 2018, Jan. 2018, Dec. 2017 and Oct. 2017).

More than Six Consecutive Years of Price Appreciation in Miami Miami-Dade County single-family home prices increased 3.6 percent in February 2018, increasing from $321,000 to $332,500. Miami single-family home prices have risen for 75 consecutive months, a streak spanning more than six years. Existing condo prices rose 4.5 percent, from $220,000 to $230,000 in February. Condo prices have increased in 78 of the last 81 months.

According to Freddie Mac, the average commitment rate for a 30-year, conventional, fixed-rate mortgage moved higher for the fifth straight month to 4.33 percent in February (highest since 4.34 percent in April 2014) from 4.03 percent in January. The average commitment rate for all of 2017 was 3.99 percent.

Miami Distressed Sales Continue to Drop

Only 7.6 percent of all closed residential sales in Miami were distressed last month, including REO (bank-owned properties) and short sales, compared to 13.3 percent in February 2017. In 2009, distressed sales comprised 70 percent of Miami sales.

Total Miami distressed sales declined 43.9 percent year-over-year, from 244 to 137 last month. Short sales and REOs accounted for 1.7 and 5.9 percent, respectively, of total Miami sales in February 2018. Short sale transactions dropped 41.2 percent year-over-year while REOs fell 44.6 percent.

Nationally, distressed sales accounted for 4 percent of sales, down from 7 percent a year ago. Miami Real Estate Selling Close to List Price

The median number of days between listing and contract dates for Miami single-family home sales was 46 days, a 24.6 percent decrease from 61 days last year. The median number of days between the listing date and closing date for single-family properties was 94 days, a 16.1 percent decrease from 112 days.

The median time to contract for condos stayed even year over year at 83 days. The median number of days between listing date and closing date decreased 3.1 percent to 123 days.

The median percent of original list price received for single-family homes was 95.4 percent. The median percent of original list price received for existing condominiums was 93.8 percent.

National and State Statistics

Nationally, total existing-home sales grew 3.0 percent to a seasonally adjusted annual rate of 5.54 million in February from 5.38 million in January. After last month’s increase, sales are now 1.1 percent above a year ago. Statewide closed sales of existing single-family homes totaled 18,620 last month, up 3.3 percent compared to February 2017, according to Florida Realtors. Statewide closed condo sales totaled 8,457 last month, up 6.4 percent compared to February 2017.

The national median existing-home price for all housing types in February was $241,700, up 5.9 percent from February 2017 ($228,200). February’s price increase marks the 72ndstraight month of year-over-year gains. The statewide median sales price for single-family existing homes last month was $246,500, up 9.6 percent from the previous year, according to Florida Realtors. The statewide median price for townhouse-condo properties in February was $179,500, up 7.2 percent over the year-ago figure.

Miami’s Cash Buyers Represent almost Double the National Figure

Miami cash transactions comprised 42.8 percent of February 2018 total closed sales, compared to 47.4 percent last year. Miami cash transactions are almost double the national figure (24 percent).

Miami’s high percentage of cash sales reflects South Florida’s ability to attract a diverse number of international home buyers, who tend to purchase properties in all cash. Miami has a higher percent of cash sales for condos due to lack of financing approvals for buildings.

Condominiums comprise a large portion of Miami’s cash purchases as 54.2 percent of condo closings were made in cash in January compared to 29.0 percent of single-family home sales.

Seller’s Market for Single-Family Homes, Buyer’s Market for Condos

Inventory of single-family homes decreased 2.3 percent in February from 6,489 active listings last year to 6,342 last month. Condominium inventory increased 4.0 percent to 15,902 from 15,289 listings during the same period in 2017.

Monthly supply of inventory for single-family homes increased 1.7 percent to 6.0 months, which indicates a seller’s market. Existing condominiums have a 14.4-month supply, which indicates a buyer’s market. A balanced market between buyers and sellers offers between six and nine months supply of inventory.

Total active listings at the end of February increased 2.1 percent year-over-year, from 21,778 to 22.244. Active listings remain about 60 percent below 2008 levels when sales bottomed.

New listings of Miami single-family homes increased 11.3 percent to 2,814 from 2,950. New listings of condominiums increased 7.3 percent, from 2,414 to 2,590.

Nationally, total housing inventory at the end of February rose 4.6 percent to 1.59 million existing homes available for sale, but is still 8.1 percent lower than a year ago (1.73 million) and has fallen year-over-year for 33 consecutive months. Unsold inventory is at a 3.4-month supply at the current sales pace (3.8 months a year ago).

To access February 2018 Miami-Dade Statistical Reports, visit http://www.SFMarketIntel.com

Note: Statistics in this news release may vary depending on reporting dates. MIAMI reports exact statistics directly from its MLS system.

About the MIAMI Association of REALTORS®

The MIAMI Association of REALTORS® was chartered by the National Association of Realtors in 1920 and is celebrating 98 years of service to Realtors, the buying and selling public, and the communities in South Florida. Comprised of six organizations, the Residential Association, the Realtors Commercial Alliance, the Broward Council, the Jupiter Tequesta Hobe Sound (JTHS-MIAMI) Council, the Young Professionals Network (YPN) Council and the award-winning International Council, it represents more than 47,000 real estate professionals in all aspects of real estate sales, marketing, and brokerage. It is the largest local Realtor association in the U.S., and has official partnerships with 171 international organizations worldwide. MIAMI’s official website is http://www.MiamiRealtors.com

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SOURCE: news provide by STL.Properties via PRWeb.com, published on STL.NEWS by St. Louis Media, LLC (PS)

#luxury home sales #Miami Association of REALTORS #MLS #stl.properties #STLRealEstate.News

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playavacationblog-blog · 7 years ago

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The Berkshires in White

Recently, I asked a friend who grew up in the Berkshires how his family had spent their winters in the mountainous region. He answered with an adamant “Inside!” What a shame, I thought. Most people who've been to this western corner of Massachusetts experience it in summer-when stalwart and novice pilgrims alike cram their calendars with world-class performing and visual arts. But snowfall and cold weather hide few of the Berkshires' charms. Quite the opposite, in fact: Winter reveals many more.

This is where to trade splashing through city slush for snowshoeing in woods shared by overwintering moose, bobcats and foxes. Many of the cultural institutions don't hibernate either; the recently, splendidly restored Mahaiwe Performing Arts Center presents a busy winter schedule of filmed performances of plays by London's National Theatre; classic movies; and concerts by musicians on a spectrum from Yo-Yo Ma to Diana Ross.

A little shopping for antiques or contemporary goods, or the appeal of a massage at a mansion-housed spa, pulls some skiers and snowboarders down from the Berkshire Mountains' approximately 1,000 skiable acres. And come dinnertime, you'll find wine and craft-beer bars and locally sourced fare at cozy restaurants-where there's a good chance of finding barstools and tables by a roaring fire.

Schussing Into Winter

Berkshire towns are about 10 to 20 minutes apart by car. Hurrying is discouraged here. Driving on two-lane roads and “highways,” whose speed limits hover no higher than 50 mph, is worth it to see the snow-fluffed fields and villages-straight from a Grandma Moses painting-you'll pass along the way.

Wherever you're staying, downhill skiing for all ages is not too far away. Jiminy Peak, 12 miles from Pittsfield, is the biggest ski center in a collection of small to medium ones. (Compare Jiminy's 45 runs and 1,150-foot drop to, say, the 127 runs and 4,425-foot drop at Colorado's Telluride.) The smaller Bousquet Mountain, just south of town, is more sparsely attended and less expensive than most of its peers, part of the reason the passionately opinionated Skibum.net ranks it the best in the Berkshires. Ski Butternut, east of Great Barrington, suits the “relaxed” skier and has especially kid-friendly slopes.

Taking It Easier

Those preferring a more meditative pace can head to the Arcadian Shop in Lenox to rent cross-country skis or snowshoes. The store suggests customers use its webby footwear on Lenox's 500-acre Kennedy Park, set right behind the store and polka-dotted with walkers, skiers and sledders. After a frosty workout, you can warm up with hot drinks at the in-store Trailside Café.

A less populated swath of the silent white landscape, Hollow Fields' 40 acres are protected by the Berkshire Natural Resources Council. BNRC's occasional guided tours lead participants above the gorgeous sea of snow to look for signs of winter wildlife. Otherwise, a trail map helps you find your own way.

Museums and Performing Arts

Any Berkshire sojourner who skips Mass MoCA's enormous North Adams campus-it's the largest contemporary art museum in the country-will practically be committing a cultural crime, especially since the completion of the latest galleries, in Building Six. Along with installations by artists including Laurie Anderson and Jenny Holzer, the space houses the late Gunnar Schonbeck's handmade instruments of his own invention and appeals to even nonmusical visitors. At The Mount, Edith Wharton's former Lenox residence, the famous garden is dormant in winter, but the house regularly hosts literary events related to both Wharton's work and others'. Tours of the interior can be made by appointment at this time of year. In Stockbridge, the Norman Rockwell Museum celebrates the master American illustrator's trenchant, loving depictions of American life while also championing the work of other artists. A holiday exhibit stays up through February 2018, and “Never Abandon Imagination,” featuring American fantasy artist Tony DiTerlizzi-who cites Rockwell as an influence on a timeline between Hieronymus Bosch and Jim Henson-runs through May 2018. For HD-streamed performances by the Metropolitan Opera and the Bolshoi Ballet, movies and more, check out the schedule at Great Barrington's Mahaiwe Performing Arts Center, a landmark since 1905.

Getting House Proud

The Berkshires' range of unusual, beautiful and useful wares for any room in the house is mind-expanding. At One Mercantile, in Great Barrington, you'll find ceiling lamps with long cords in an array of colors, red metal first-aid kits worth putting on display, and rustic-chic rugs made of flattened firehoses. A short walk north leads to Farm & Home, which has shelves lined with contemporary pottery. Here, large Depression-era reach-in coolers still bear their original signage-“Please serve yourself”-but are filled with tidy rows of notebooks and many-shaped soaps (one in the form of an avocado). In the back of the store, you might run into co-owner Chapin Fish, who practices real estate at a desk in the midst of everything. In Lenox, Design Menagerie promises “Objects of Utility and Beauty” and keeps its word. Women's unusual, minimalist, un-retail-looking accessories is Rei Kawakubo–meets–Eileen Fisher; and quilts by artisan Louise Gray are flexibly designed to use on a bed or hang on a wall.

Taking the Edge Off

After a day of skiing or walking from shop to shop, think about heading to one of two mansions turned resorts for a massage or other soothing services. In Lenox, both The Potting Shed Spa at Blantyre and The Spa at Cranwell are open to nonguests-but even in colder months it's wise to make an appointment in advance.

Tasting Trio

West Stockbridge has an artsy-craftsy Main Street, but if you're not in the mood, consider giving this town its due at three cheek-by-jowl establishments of a different kind. All day at the busy No. Six Depot, the clientele lines up patiently for coffee hand-roasted on-site and takes fresh pastries, salads and paninis to tables beneath a rotating display of sophisticated works by local and international artists. The café also hosts pop-up dinners prepared by up-and-coming New England chefs. Across the street, Shaker Mill Books houses an abundance of new, used and rare books, as well as those by local authors; owner Eric Wilska is restoring a nearby barn to house even more inventory. Down the street, Charles H. Baldwin & Sons makes vanilla extract and other goodies, such as Mr. Baldwin's Proper Bloody Mary Mix and maple syrup, which are tempting enough to make adults feel like kids in a candy store (meanwhile, loads of real candy keep real kids happy too). It was the Mohicans who taught the first settlers here to tap maple trees and boil the sap down to syrup-just one bit of magic from experiencing the Berkshires in winter.

PLAY

Bousquet Mountain

101 Dan Fox Dr., Pittsfield; 413-442-8316; bousquets.com

Hollow Fields

Visit website for detailed directions

Jiminy Peak

37 Corey Rd., Hancock; 413-738-5500; jiminypeak.com

Kennedy Park

Behind the Arcadian Shop, see “Shop”

Ski Butternut

380 State Rd., Great Barrington; 413-528-2000; skibutternut.com

EXPLORE

Mahaiwe Performing Arts Center

14 Castle St., Great Barrington; 413-528-0100; mahaiwe.com

Mass MoCA

1040 Mass MoCA Way, North Adams; 413-662-2111; massmoca.org

The Mount

2 Plunkett St., Lenox; 413-551-5111; call ahead to inquire about winter operating hours; edithwharton.org

Norman Rockwell Museum

9 Glendale Rd., Stockbridge; 413-298-4100; nrm.org

10×10 Upstreet Arts Festival

The annual winter arts festival hosted by Barrington Stage Co. and Pittsfield's Office of Cultural Development hosts 10 days of dozens of events, including fireworks, a wildly popular 10-minute-play festival, art auction, poetry slam and dance performances. Feb. 15–25, 2018, at various venues, Pittsfield; 413-499-9348; discoverpittsfield.com

SHOP

Arcadian Shop

91 Pittsfield Rd., Lenox; 413-637-3010; arcadian.com

Charles H. Baldwin & Sons

1 Center St., West Stockbridge; 413-232-7785; baldwinextracts.com

Design Menagerie

26 Housatonic St., Lenox; 413-551-7528; designmenagerie.com

Farm & Home

276 Main St., Great Barrington; 413-528-9100; farmandhome.us

One Mercantile

8 Castle St., Great Barrington; 413-528-1718; one-mercantile.myshopify.com

Shaker Mill Books

3 Depot St., West Stockbridge; 413-232-0251; shakermillbooks.com

RELAX

The Potting Shed Spa at Blantyre

16 Blantyre Rd., Lenox; 844-881-0104; blantyre.com; spa services, from $125

The Spa at Cranwell

55 Lee Rd., Lenox; 413-637-1364; cranwell.com; massages, from $60

EAT

Freight Yard Pub and Restaurant

A good stop for its broad-ranging menu-think soup to nuts (or omelets to steaks)-near Mass MoCA. 1 Furnace St., North Adams; 413-663-6547; thefreightyardpub.com; dinner for two, $60*

Mission Bar + Tapas

On Thursday nights a local music collective plays at this classic neighborhood haunt with American “tapas,” like mac 'n' cheese. 438 North St., Pittsfield; 413-499-1736; missionbarandtapas.com; dinner for two, $30

No. Six Depot

6 Depot St., West Stockbridge; 413-232-0205; sixdepot.com; lunch for two, $25

Nudel

A small, airy storefront restaurant that collaborates with local farmers and craft-food makers to realize a creative yet comforting menu. 37 Church St., Lenox; 413-551-7183; nudelrestaurant.com; dinner for two, $100

The Old Inn on the Green

High-style local fare, such as Hudson Valley foie gras, served in rooms lit entirely by candle- and firelight. 134 Hartsville–New Marlborough Rd., New Marlborough; 413-229-7924; oldinn.com; dinner for two nonguests, $70

Rubi's Coffee and Sandwiches

In a sunny space at the end of an alley off Main Street, with espresso, fresh pastries, sandwiches and an enormous fireplace. 264 Main St., Great Barrington; 413-528-0488; rubiners.com; lunch for two, $25

Widow Bingham's Tavern

Dine on the likes of turkey sandwiches and Lion's Ale beer-battered haddock in a bar connected to the oldest hotel in Stockbridge. The Red Lion Inn, 30 Main St., Stockbridge; 413-298-5545; redlioninn.com; dinner for two, $50

STAY

RCI® affiliated resorts in the Berkshires include:

Vacation Village in the Berkshires 6057

All of the cushy accommodations feature a kitchen and a hot tub. 276 Brodie Mountain Rd., Hancock Member Review: “Serene and quiet setting.”

Holiday Inn Club Vacations Oak 'n Spruce Resort 1243

Equipped with an indoor pool and lots of other on-site activities for families. 190 Meadow St., South Lee Member Review: “Fantastic location.”

Berkshire Mountain Lodge D567

When you're not out and about, you'll appreciate the resort's modern amenities and plush living and dining areas. 8 Dan Fox Dr., Pittsfield Member Review: “Lots of hiking trails nearby and great scenery.”

Wind in the Pines 1903

Access to outdoor activities, shopping and great restaurants makes this an idyllic Berkshire getaway. 949 S. Main St., Great Barrington Member Review: “The rooms were excellent.��

Wyndham Bentley Brook II 7819

At the base of Jiminy Peak, this resort offers a reprieve after full days visiting the nearby attractions. 1 Corey Rd., Hancock Member Review: “Nice pool and waitstaff.”

For complete member reviews (as member reviews have been condensed) and additional resort listings, visit RCI.com or call 800-338-7777 (Weeks) or 877-968-7476 (Points). Club Members, please call your specific Club or RCI telephone number.

Search Now

Non-RCI affiliated resorts in the Berkshires include:

The Briarcliff Motel

A retro '60s-style motel conveniently located at Monument Mountain. 506 Stockbridge Rd., Great Barrington; 413-528-3000; thebriarcliffmotel.com; doubles from $90 a night

Hotel on North

No two rooms are alike at this boutique property. 297 North St., Pittsfield; 413-358-4741; hotelonnorth.com; doubles from $159 a night

The Red Lion Inn

Guests can choose between the main inn and private guest houses, many named for former residents. 30 Main St., Stockbridge; 413-298-5545; redlioninn.com; doubles from $114 a night

The Old Inn on the Green

This historic inn-a former stagecoach relay-has candlelit dining rooms and pastoral murals. 134 Hartsville–New Marlborough Rd., New Marlborough; 413-229-7924l; oldinn.com; doubles from $260 a night (including breakfast and one overnight dinner)

The post The Berkshires in White appeared first on Endless Vacation.

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