J-S05024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEVON LAVAR WELLINGTON                     :
                                               :
                       Appellant               :   No. 1414 MDA 2019


        Appeal from the Judgment of Sentence Entered June 20, 2019,
              in the Court of Common Pleas of Dauphin County,
            Criminal Division at No(s): CP-22-CR-0005951-2018.


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                   FILED: APRIL 13, 2020

       Devon Wellington appeals from the aggregate judgment of sentence of

six months of county intermediate punishment, a year of county supervision,

and fines totaling $1,125. He challenges the sufficiency of the evidence to

convict him on three counts of driving under the influence.1 We affirm.

       The trial court summarized the facts of the case as follows:

                 On May 20, 2018, Officer Yeager of the Harrisburg City
          Police Department, was dispatched to a car crash at
          approximately 1:14 a.m. The caller had reported that two
          parked vehicles had been struck by another vehicle, which
          fled the scene. Upon Officer Yeager’s arrival, he did find the
          struck vehicles parked in the 2300 block of North Sixth
          Street.    Subsequently, Officer Yeager interviewed both
          owners of the vehicles involved in the crash. They described
          the vehicle that had hit their respective cars as crossing the
____________________________________________


1 See 75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3802(b), and 75 Pa.C.S.A. §
3802(d)(1). The trial court also convicted Wellington of other, lesser offenses
that are not in question on appeal.
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         double yellow line and entering the oncoming lane of traffic
         which resulted in the first vehicle being struck in the front
         drivers side and then striking the second vehicle parked
         directly behind it. After striking the two parked vehicles,
         the owners described that the driver of the vehicle made a
         hard right hand turn over the curb through a grassy hill,
         where a front bumper and grill assembly for a blue Buick
         sedan was found.

                At approximately 1:50 that same morning,
         [Wellington] places a call to 911 relaying that his Buick
         sedan was stolen two blocks north of the crash scene.
         Officer Yeager ends up responding to this dispatch call
         because he believed it was related to the crash scene he
         was already investigating. After arriving to speak with
         [him], Officer Yeager described [Wellington] as having
         heightened emotions, stumbling around, pacing back and
         forth, and [he] lacked any kind of balance. Further, Officer
         Yeager identified [Wellington] as “very obviously
         intoxicated: red eyes, dilated pupils, heavy eyelids, slurred
         speech, and smelled heavily of an alcoholic beverage.”

                When Officer Yeager began asking [Wellington] basic
         questions about the stolen vehicle, he provided four
         different renditions about that evening. At some point
         during the Officer’s questions, [Wellington] pulls a key to his
         stolen Buick out of his pocket. This key is later confirmed
         to be the key belonging to the stolen Buick. Officer Yeager
         also travels to [Wellington’s] home where he speaks to
         [Wellington’s] girlfriend. She informs Officer Yeager that
         [Wellington] hadn’t been home all night. Based on this
         information, Officer Yeager arrests [Wellington] for public
         drunkenness.     [Wellington] is then transported to the
         booking center. [Wellington] consents to a blood draw, and
         is found to have a BAC level of .141 and the presence of a
         cocaine compound.

               Officer Yeager continues his search in the area for the
         stolen vehicle and locates it approximately one block away
         from [Wellington’s] home. The vehicle had damage that
         was consistent with the car crash. After locating [the]
         vehicle, Officer Yeager then charges [Wellington] with DUI.

Trial Court Opinion, 10/22/19, at 1-3 (citations to the record omitted).


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      Following a non-jury trial, the court convicted Wellington on all charges,

including three, separate counts of driving under the influence. The three DUIs

were based on (1) general impairment, (2) high rate of alcohol, and (3) having

metabolites from a controlled substance (cocaine) in the bloodstream. The

trial court merged these DUI convictions for sentencing purposes. Wellington

filed a post-sentence motion, which the trial court denied.

      He then timely appealed to this Court.

      On appeal, Wellington attacks all three of his DUI convictions as follows:

         Whether the Commonwealth failed to present sufficient
         evidence to sustain [his] convictions, where the
         Commonwealth presented no substantive evidence that
         [Wellington] was under the influence of alcohol or a
         controlled substance at the time of driving his vehicle.

Wellington’s Brief at 4.

      Wellington argues the Commonwealth presented insufficient evidence

that he was DUI, because he introduced “credible evidence . . . demonstrating

that [he] consumed alcohol and cocaine after [he] ceased operating his

vehicle.” Id. at 10. First, he claims the Commonwealth failed to prove that

he consumed any cocaine prior to driving and wrecking his car into the parked

vehicles. See id. at 14. Second, Wellington argues the Commonwealth did

not prove that he had a high rate of alcohol while driving his vehicle, because

“the record is absent sufficient evidence to support the Commonwealth’s

allegation that Wellington, before he operated his vehicle, [had] consumed

enough alcohol to elevate his BAC to between .10% and .16%.” Id. at 15.



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And third, he suggests the Commonwealth did not prove he had consumed

enough alcohol to render himself incapable of safe driving.

      The crux of all three of these theories is Wellington imbibed intoxicants

after wrecking his car and returning home. He relies upon the testimony of

his girlfriend to support his version of events. She testified that Wellington

drank two beers and did cocaine between the car wreck and when Officer

Yeager responded to Wellington’s 911 call. Because his girlfriend provided the

only in-court account of Wellington’s actions before Officer Yeager arrived,

Wellington believes the Commonwealth failed to prove its case beyond a

reasonable doubt.

      We disagree.    His girlfriend’s contradictory out-of-court statement to

Office Yeager, coupled with other evidence was sufficient to convict

Wellington.

      Evidence is sufficient to support a criminal conviction if “it establishes

each material element of the crime charged and the commission thereof by

the accused, beyond a reasonable doubt.         Where the evidence . . . is in

contradiction to the physical facts, in contravention to human experience and

the laws of nature, then the evidence is insufficient as a matter of law.”

Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa.Super. 2004). We “view

the evidence in the light most favorable to the [Commonwealth and give it]

the benefit of all reasonable inferences to be drawn from the evidence.” Id.

      Critically, when reviewing a sufficiency claim following a bench trial, this

Court must treat the trial judge’s decision with the same deference that we

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would afford a jury’s verdict. Thus, the trial judge, “while passing upon the

credibility of witnesses and the weight of the evidence produced, is free to

believe all, part, or none of the evidence.” Commonwealth v. Kearney, 92

A.3d 51, 64 (Pa.Super. 2014).

      As this Court recently explained:

               The facts and circumstances established by the
         Commonwealth need not preclude every possibility of
         innocence. Any doubt raised as to the accused’s guilt is to
         be resolved by the fact-finder. As an appellate court, we do
         not assess credibility nor do we assign weight to any of the
         testimony of record. Therefore, we will not disturb the
         verdict unless the evidence is so weak and inconclusive that
         as a matter of law no probability of fact may be drawn from
         the combined circumstances.         Evidence is weak and
         inconclusive when two equally reasonable and mutually
         inconsistent inferences can be drawn from the same set of
         circumstances.

Commonwealth v. Akhmedov, 216 A.3d 307, 322 (Pa.Super. 2019), appeal

denied, ___ A.3d ___, 2020 WL 548091 (Pa. 2020) (citations and some

punctuation omitted).

      After examining the evidence that the Commonwealth offered through

the testimony of Officer Yeager and toxicologist Jolene Bierly, the trial court

convicted Wellington of three types of DUI. The statute in question provides,

in relevant part:

         (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,


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              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.

                          *     *     *     *     *

         (d) Controlled substances.--An individual may not drive,
         operate or be in actual physical control of the movement of
         a vehicle under any of the following circumstances:

          (1) There is in the individual’s blood any amount of a:

              (i) Schedule I controlled substance, as defined in the
                  act of April 14, 1972 (P.L. 233, No. 64),1 known as
                  The Controlled Substance, Drug, Device and
                  Cosmetic Act;

              (ii) Schedule II or Schedule III controlled substance,
                   as defined in The Controlled Substance, Drug,
                   Device and Cosmetic Act, which has not been
                   medically prescribed for the individual; or

              (iii) metabolite of a substance under subparagraph (i)
                    or (ii).

75 Pa.C.S.A. § 3802.

      In explaining its decision to convict Wellington under these three

subsections, the trial court relied heavily upon the circumstantial evidence

that arose from the wreck that Wellington caused, as well as his confession to

Officer Yeager that he had been drinking. The court opined as follows:



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       We believe that the Commonwealth presented sufficient
       evidence to prove that the defendant was driving under the
       influence of alcohol and controlled substances.

              “Circumstantial evidence is, in the abstract, nearly, if
       not quite as strong as positive; in the concrete, it may be
       much stronger.” Commonwealth v. Harman, 4 Pa. 269,
       270 (1846). [Wellington’s] sole argument on appeal is that
       the Commonwealth failed to present [direct] evidence
       proving that he was under the influence of alcohol or a
       controlled substance at the time of driving his vehicle. In
       the case at hand, the Commonwealth very clearly proved
       that on the night of the incident [Wellington] had been both
       under the influence of alcohol and drugs. With blood results
       showing a BAC level of .141 and the presence of cocaine, it
       is difficult to argue otherwise.      However, [Wellington]
       argues that while the Commonwealth may have proven that
       he was under the influence of those substances, the
       Commonwealth failed to prove that he had been driving
       while under the influence of those substances.

             As cited above, the Court in Harman held that
       circumstantial evidence can be just as strong, if not
       stronger, than other forms of evidence. Here, there is a
       plethora of circumstantial evidence that ties [Wellington] to
       [the] crime of driving under the influence. First, at the
       scene of the crash, Officer Yeager found debris left from the
       vehicle that had crashed into the two parked vehicles. The
       leftover debris was concluded to have come from a blue
       Buick sedan; the same exact color and model [Wellington]
       had reported as “stolen.” After speaking with [him] on that
       night, Officer Yeager described [Wellington] as stumbling
       around, pacing back and forth, and lacking any kind of
       balance.    Based upon Officer Yeager’s experience he
       described [Wellington] as being very obviously intoxicated:
       red eyes, dilated pupils, heavy eyelids, slurred speech, and
       smelled heavily of an alcoholic beverage.             Further,
       [Wellington] had presented the officer with approximately
       four different renditions of how the evening progressed.
       Secondly, [Wellington] provided Officer Yeager with a key
       to his car that unlocked the car and was able to start the
       car. Finally, all of the damage found on [Wellington’s] car
       was consistent with car parts located at the scene of the
       crash.


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               In viewing all of these facts in the light most favorable
         to the Commonwealth, we believe that sufficient evidence
         was presented to find that [Wellington] had driven while
         being under the influence.

Trial Court Opinion, 10/22/19, at 3-5.

      We agree with the trial court. All of the circumstantial evidence, which

the trial court found to be true, provides sufficient proof of each element of

subsection (a)(1) of Section 3802 of the Vehicle Code.

      Wellington’s arguments to the contrary are unavailing. He first asserts

that “the Commonwealth failed to prove that [he] unlawfully drove or was in

actual physical control of the movement of a vehicle after imbibing a sufficient

amount of alcohol that rendered him incapable of driving safely.” Wellington’s

Brief at 9. To support this claim Wellington provides an argument as to each

of his convictions. We address each separately.

      With regard to section 3802(a)1), Wellington argues that “[m]erely

being involved in a car accident proves nothing definitive about [his] capability

of operating his vehicle safely.”     Wellington’s Brief at 19.     In addition,

Wellington cites Officer Yeager’s trial testimony that it had been raining “all

night long.” Id.

       We agree that the happening of an accident alone is insufficient to

establish driving under the influence.    However, in making this argument,

Wellington ignores the “plethora” of circumstantial evidence found by the trial

court to support this conviction. Moreover, rainy weather usually does not

cause drivers to cross double, yellow lines to the point that they hit cars



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parked along the opposing sidewalk. Finally, even if an act of God had caused

this incident, it does not explain why Wellington fled the scene of the accident

or falsely reported that his car was stolen.

        Hence, Wellington’s theory does not comport with “human experience

and the laws of nature . . . .”    See Smith, supra.      He therefore fails to

persuade this Court that the Commonwealth’s evidence was so weak or

inconclusive that the trial court could not reasonably convict him under 75

Pa.C.S.A. § 3802(a)(1).

        We also affirm his convictions under subsections (b) and (d) of Section

3802.

        Wellington indicates the Commonwealth produced no direct evidence

definitively establishing his BAC at the time he drove his car into the parked

vehicles. However, the Commonwealth proved that his BAC was .141 only a

few hours after the incident.       It also produced evidence that he had

metabolites from cocaine in his system.

        Under the plain language of subsection (d) any amount of metabolites

are sufficient to render one DUI in this Commonwealth.         In other words,

Pennsylvania is a zero-tolerance jurisdiction for DUI by illicit drugs. Again

Wellington responds that the Commonwealth did not provide any direct

evidence definitively showing that he did the cocaine prior to driving his car.

        The weakness of Wellington’s arguments lies in his reliance upon his

girlfriend’s in-court rendition of events. She testified that, on the morning in

question, she and Wellington were together at home. See N.T., 6/18/19, at

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36. She said that he had two beers and did cocaine while in the house – i.e.,

after he wrecked his vehicle but before Officer Yeager responded to his 911

call.   See id. at 36-37.      However, this testimony did not correspond with

Officer Yeager’s recollection of her statements on the morning in question.2

        Upon arriving at Wellington’s residence, Officer Yeager went:

           on the porch [and] spoke with Ms. Ashley Randall . . . [He]
           later found out [that she] was Mr. Wellington’s girlfriend.

                  [Officer Yeager] asked [her] about Mr. Wellington’s
           whereabouts and kind of how everything conspired. Maybe
           she had seen something about the vehicle being stolen. She
           told [the policeman] that [Wellington] hadn’t been home all
           night and that she didn’t know anything further.

Id. at 17.

        Ms. Randall therefore offered two, conflicting version of events, one at

the time of the crimes and one in court. The trial court was “free to believe

all, part, or none of the evidence.” Kearney, 92 A.3d at 64. This freedom to

accept or reject evidence allowed the court, as fact-finder, to believe either

Ms. Randall’s report to Officer Yeager or her inconsistent testimony during

Wellington’s case-in-chief. Because it convicted Wellington of DUI, the trial

court obviously rejected Ms. Randall’s in-court story as incredible.      Thus,

neither Wellington nor this Court may rely upon her in-court statement to

conclude that the Commonwealth’s evidence of DUI was insufficient.



____________________________________________


2Wellington did not object to Officer Yeager’s testimony regarding what Ms.
Randall had said regarding Wellington’s whereabouts.

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      As a matter of fact, according to Officer Yeager, Wellington “hadn’t been

at home all night and [Ms. Randall] didn’t know anything further.”        N.T.,

6/18/19, at 17.     Therefore, Wellington’s theory of the case collapses.

Moreover, although Wellington further argues that that the Commonwealth’s

expert could not opine if his “BAC was raising or falling when he submitted to

a blood draw at 3:14 a.m, ” Wellington’s Brief at 18, he did not reach a BAC

of .141 by drinking two beers at home before Officer Yeager arrived. Nor did

he do cocaine in his home between the time he crashed his car and when

Officer Yeager arrived, because, as Ms. Randall told Officer Yeager, he “had

not been in the house all night.”

      Because Wellington relayed four versions of events to Officer Yeager and

because Ms. Randall apparently lied on the stand to defend her boyfriend, the

trial court had a basis to infer that Wellington and Ms. Randall were trying to

cover up his crimes. From Wellington’s false report of a stolen car onward,

the trial court clearly found that Wellington and Ms. Randall were not

trustworthy individuals. It therefore reconciled the conflicting versions of the

facts against Wellington in light of the unbelievablility of these witnesses and

the other evidence that the Commonwealth presented.

      Accordingly, we agree with the trial court. There was sufficient evidence

from which a finder of fact could rationally conclude that Wellington committed

all three types of DUI beyond a reasonable doubt.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/13/2020




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