J-S18015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ARDEN C. OLDT, III,

                        Appellant                   No. 871 EDA 2014


     Appeal from the Judgment of Sentence Entered October 21, 2013
              In the Court of Common Pleas of Carbon County
           Criminal Division at No(s): CP-13-CR-0001025-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 02, 2015

     Appellant, Arden C. Oldt, III, appeals from the judgment of sentence

of 48 hours’ to six (6) months’ imprisonment, imposed after he was

convicted of driving under the influence of alcohol incapable of safe driving

and reckless driving. Appellant challenges the sufficiency of the evidence to

sustain his convictions and alleges the verdict is against the weight of the

evidence. After careful review, we affirm.

     Appellant’s convictions stem from an incident on August 2, 2012,

where Appellant caused a three-car accident on State Route 248 in Carbon

County, Pennsylvania. Appellant was arrested for suspicion of drunk driving

and was ultimately found guilty of the following charges at a non-jury trial

held on August 9, 2013: driving under the influence of alcohol incapable of
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safe driving,1 and reckless driving.2          The court sentenced Appellant to 48

hours’ to six (6) months’ incarceration.          Following the denial of his post-

sentence motions, Appellant filed a notice of appeal.

        Subsequently, the court issued an order dated March 10, 2014, in

conformance with Pa.R.A.P. 1925(b)(3), directing Appellant to:

        within twenty-one (21) days from the date of this Order’s entry
        on the docket, to file of record and serve upon the undersigned,
        a Concise Statement of the Matters Complained of in the appeal
        to the Superior Court pursuant to Pennsylvania Rule of Appellate
        Procedure 1925(b). Any issue not properly included in the
        Concise Statement shall be deemed waived.

Order of Court, 3/10/14.          Accordingly, the deadline for filing a concise

statement was March 31, 2014.3             Appellant’s 1925(b) statement was not

served on the court or docketed until April 2, 2014.4 The trial court found
____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 3736(a).
3
 “When any period of time is referred to in any statute, such period in all
cases … shall be so computed as to exclude the first and include the last day
of such period.” 1 Pa.C.S. §1908. Accordingly, we will exclude March 10,
2014, the entry date of the order directing the concise statement, from our
computation of the relevant filing deadline and begin counting from March
11, 2014. We calculate that the twenty-first day after the entry of the trial
court’s order was March 31, 2014, which did not fall on a Saturday or
Sunday, or on a legal holiday.
4
  Appellant did file a certificate of service dated March 30, 2014, claiming
that the 1925(b) statement was mailed to all relevant parties by first class
mail. Trial Court Opinion (TCO), 4/30/14, at 13. However, Appellant failed
to provide the court with any evidence as per Rule 1925(b)(1) as verification
of the mailing date. Furthermore, the court notes that Appellant’s cover
letter attached to the 1925(b) statement, indicating that the original concise
(Footnote Continued Next Page)


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that Appellant failed to timely file his concise statement of errors in

compliance with the 1925(b) order. TCO, at 11. We agree. However, “if

there has been an untimely filing, this Court may decide the appeal on the

merits if the trial court had adequate opportunity to prepare an opinion

addressing the issues being raised on appeal.” Commonwealth v. Burton,

973 A.2d 428, 433 (Pa. Super. 2009). Here, the trial court has addressed

the issues at length in its 1925(a) opinion. Therefore, we will overlook the

untimeliness of Appellant’s concise statement and address the merits of the

issues contained therein.

      Appellant presents the following two questions for our review:

      I.     Was the admissible evidence presented sufficient to
             convict beyond a reasonable doubt for the offenses of
             reckless driving and driving under the influence of alcohol
             to such a degree that [Appellant] was rendered incapable
             of safe driving?

      II.    Was the verdict of the trial court that the [Appellant] was
             recklessly driving and under the influence of alcohol to
             such a degree that it rendered him incapable of safe
             driving against the weight of the evidence?

Appellant’s Amended Brief, at 4.

      Before addressing Appellant’s sufficiency and weight of the evidence

claims, we review the facts of the incident which led to Appellant’s




                       _______________________
(Footnote Continued)

statement is enclosed, is dated April 1, 2014, which conflicts with the date
on the certificate of mailing. TCO, at 14.



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convictions, as summarized by the trial court in the following portion of its

Rule 1925(a) opinion:

            [O]n August 2, 2012, [Appellant] was driving erratically on
     State Route 248 in Carbon County, Pennsylvania. [Appellant]’s
     driving caused a three-car accident involving himself, Gary
     Dimovitz (hereinafter “Dimovitz”), and Larry Mosser (hereinafter
     “Mosser”). After investigating the accident, the officer called to
     the scene, Officer Robert Cohowicz, arrested [Appellant] for
     suspicion of drunk driving after: 1) he detected an odor of
     alcohol emanating from [Appellant]; 2) [Appellant] readily
     admitted that he drank three beers the day of the accident,
     including one beer a mere one hour before; and 3) [Appellant]
     failed a standardized field sobriety test.

            At trial, both Dimovitz and Mosser offered similar accounts
     of the accident. Dimovitz testified that on the day of the
     accident he was driving a silver BMW westbound on State Route
     248. Construction on Route 248 caused the right-hand lane of
     the highway to be closed; all traffic had to proceed in the left-
     hand lane. To close the right lane, a construction crew had
     tapered off cones to prevent a driver from entering the right-
     hand lane. These cones then continued down the highway,
     partitioning the two westbound lanes. This closed right-hand
     lane caused traffic to move slowly through the construction zone.

            While proceeding through the construction zone, Dimovitz
     observed … [Appellant] driving a black Mercedes convertible
     directly in front of him. About halfway through the construction
     zone, Dimovitz observed [Appellant] drive through the
     construction cones into the closed right-hand lane. According to
     Dimovitz, [Appellant] was able to navigate through the cones
     and proceed down the right-hand lane because, at [Appellant]’s
     point of entry into the right-hand lane, all construction workers
     and vehicles were behind him. Once in the right-hand lane,
     [Appellant] accelerated in an attempt to pass the line of cars
     slowly traveling through the construction zone in the left-hand
     lane.

           Unlike the beginning of the construction zone where the
     entrance was tapered off, the end of the construction zone was
     not tapered off with cones. Thus, as vehicles started to exit the
     construction zone they were able to merge back into the right-


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     hand lane.       When [Appellant] reached the end of the
     construction zone, he was forced to apply his brakes as other
     vehicles were merging into the right-hand lane and preventing …
     [Appellant] from exiting that lane. Observing [Appellant] apply
     his brakes, Dimovitz assumed [Appellant] wanted to merge back
     into the left-hand lane to pass the line of traffic. Consequently,
     Dimovitz slowed his vehicle, allowing [Appellant] to cross back
     into the left-hand lane. Once Appellant re-entered the left-hand
     lane, he was faced with clear and open road ahead of him, but
     [Appellant] traveld slowly as if he was still in the construction
     zone. Dimovitz then observed [Appellant] stick his hand out the
     window, wave, and accelerate ahead.

           Up ahead, about one-half mile past the construction zone,
     Dimovitz noticed [Appellant’s] brake lights as … [Appellant]
     moved back into the right-hand lane. Since [Appellant] was
     approaching the Palmerton exit on Route 248, Dimovitz assumed
     that [Appellant] was about to exit the hightway. However, his
     assumption was incorrect because after Dimovitz passed the exit
     … [he] now noticed, in his rearview mirror, that [Appellant] was
     back in the left-hand lane some distance behind him.

           As Dimovitz continued past the traffic in the right-hand
     lane, he took another quick glance into his rearview mirror and
     noticed that [Appellant] had closed the gap between them.

           Shortly thereafter, as Dimovitz passed the last car in the
     right-hand lane, [Appellant’s] vehicle struck Dimovitz’s vehicle.
     The impact caused Dimovitz to slightly lose control of his vehicle,
     but he was quickly able to regain control. Thereafter, Dimovitz
     looked into his rearview mirror and noticed that [Appellant’s]
     vehicle had collided with the median. … Dimovitz pulled over
     onto the right-hand shoulder and called 911.

           Like Dimovitz, Mosser testified that on August 2, 2012, he
     was also traveling westbound on Route 248. While traveling
     down the highway, Mosser noticed in his rearview mirror two
     vehicles approaching him from behind.7        As these vehicles
     approached him, Mosser described [Appellant] as driving as if
     Mosser was not even on the road. Conversely, Mosser did not
     perceive the other vehicle, driven by Dimovitz, as a threat to
     him.
           7
            Mosser stated that despite setting his cruise control
           to sixty-two (62) miles per hour in a fifty-five (55)


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            mile per hour zone, both vehicles were rapidly
            drawing near him.

            Accordingly, Mosser, who was already in the right-hand
      lane, slowed his vehicle and moved onto the shoulder of the
      highway in an attempt to allow both vehicles to pass him;
      however, he was not able to get completely off the road due to a
      guide rail. As [Appellant] approached Mosser, his vehicle began
      to swerve.     When [Appellant] attempted to pass Mosser,
      Appellant’s vehicle struck the left rear panel of Mosser’s vehicle.
      Upon collision, [Appellant’s] vehicle veered hard to the right,
      struck the guide rail which then caused [Appellant’s] vehicle to
      travel back across the two lane highway and into the median
      separating the westbound lanes from the eastbound lanes.

            Once     his vehicle was at rest, Mosser approached
      [Appellant]   to inquire into whether or not he was injured.
      [Appellant]   stated that he was fine; he then apologized for
      causing the   accident.

            Responding to Dimovitz’s 911 phone call, Officer Cohowicz,
      of the Palmerton Borough Police Department arrived at the
      accident scene. Upon arrival, Officer Cohowicz observed that
      just past Mosser’s vehicle were skid marks on the road leading
      up to [Appellant]’s vehicle that was resting against the median.

TCO, at 1-6. (citations and some footnotes omitted).

      Appellant first argues that the evidence presented at trial was

insufficient to sustain his convictions.   To begin, we note our standard of

review:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyong a reasonable doubt.
      Morena, supra at 136.

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Commonwealth v. Koch, 39 A.3d 966, 1001 (Pa. Super. 2011).

       Specifically, Appellant challenges the sufficiency of the evidence to

support his conviction under 75 Pa.C.S. § 3802(a)(1), which states:            “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.”             In order to

sustain a conviction under subsection 3802(a)(1), “the Commonwealth must

prove:     (1) that [Appellant] was operating a motor vehicle, (2) after

imbibing a sufficient amount of alcohol such that the individual is rendered

incapable of safely driving.”        Commonwealth v. Kerry, 906 A.2d 1237,

1241 (Pa. Super. 2006). Appellant does not contest that he was driving the

vehicle that caused the accident.5             However, Appellant contends that the

Commonwealth failed to establish that his ingestion of alcohol rendered him

incapable of safely driving.         Appellant’s Amended Brief, at 12.      To the

contrary, Appellant asserts that the accident was not directly attributable to

any alcohol consumption on his part. Id.

       In Kerry, we held:



____________________________________________


5
  “In response to Officer Cohowicz’s questions about the accident, Appellant
stated that he was the driver of the black Mercedes convertible.” TCO, at 7.
Appellant also apologized to Mosser for causing the accident immediately
following the incident. TCO, at 6.



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       [t]o 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.

Id. at 1241 (quoting Commonwealth v. Gruff, 822 A.2d 773, 781 (Pa.

Super. 2003)). “[The] meaning [of substantial impairment] is not limited to

some extreme condition of disability.”           Id. (quoting Commonwealth v.

Griscavage, 517 A.2d 1256, 1258 (Pa. 1986)).             In Commonwealth v.

Segida, 985 A.2d 871 (Pa. 2009), our Supreme Court determined:

       [t]he types of evidence that the Commonwealth may proffer in a
       subsection 3802(a)(1) prosecution include but are not limited to,
       the following: the offender’s actions and behavior, including
       manner of driving and ability to pass field sobriety tests;
       demeanor, including toward the investigating officer; physical
       appearance, particularly bloodshot eyes and other physical signs
       of intoxication; odor of alcohol, and slurred speech.

Id. at 879. The Court further declared, “[t]he weight to be assigned these

various types of evidence presents a question for the fact-finder, who may

rely on his or her experience, common sense, and/or expert testimony.” Id.

       Here, Appellant admitted to consuming three twelve-ounce cans of

beer prior to the incident, with the last beer being consumed a mere hour

before the accident.6 TCO, at 8. Officer Cohowicz testified that Appellant’s

____________________________________________


6
  The trial court found Appellant’s testimony regarding his consumption of
alcohol to be contradictory, as he testified that he consumed the three beers
over a four hour period of time; however, Michelle Everett, the female
(Footnote Continued Next Page)


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eyes were glossy and bloodshot and that he detected an odor of alcohol

emanating from Appellant.            TCO, at 7.   Based on Appellant’s admission

regarding the consumption of alcohol, Officer Cohowicz asked Appellant to

submit to a standardized field sobriety test.       Appellant agreed to the test.

However, during the second phase of a three-phase test, “Officer Cohowicz

stopped Appellant due to his lack of coordination as the Officer had to catch

[Appellant] in order to prevent him from falling to the ground.” TCO, at 8.

Appellant’s physical appearance and inability to pass the field sobriety test,

combined with the testimony of Dimovitz and Mosser regarding Appellant’s

erratic driving, not to mention the fact that Appellant clearly demonstrated a

diminution in his ability to exercise judgment when he ignored the cones and

drove in the prohibited right-hand lane of a construction zone, all support

the trial court’s finding that Appellant was driving under the influence of

alcohol to such a degree that it rendered him incapable of safe driving.

      Appellant also challenges the sufficiency of the evidence to support his

conviction of reckless driving under 75 Pa.C.S. § 3736, which provides that

“[a]ny person who drives any vehicle in willful or wanton disregard for the

safety of persons or property is guilty of reckless driving.” Thus, to sustain a

conviction of reckless driving, the Commonwealth must prove, “two
                       _______________________
(Footnote Continued)

passenger in Appellant’s car who had accompanied him to the bar on the day
of the incident, testified that they did not arrive at the bar until after three
o’clock in the afternoon and the accident occurred sometime before five
o’clock. TCO, at 25.



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elements: an actus reus – driving a vehicle; and a mens rea – “in willful or

wanton disregard for the safety of persons or property.” Commonwealth

v. Bullick, 830 A.2d 998, 1001 (Pa. Super. 2003). Appellant argues that his

ingestion of alcohol is not per se recklessness and that the Commonwealth

failed to establish the mens rea required for this offense.       Appellant’s

Amended Brief, at 15-16.

     We have held that “driving under the influence of intoxicating

substances does not create legal recklessness per se but must be

accompanied with other tangible indicia of unsafe driving to a degree that

creates a substantial risk of injury which is consciously disregarded.”

Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super.

1998).    After analyzing the history of the offense of reckless driving in

Bullick, we concluded that:

     the mens rea necessary to support the offense of reckless
     driving is a requirement that Appellant drove in such a manner
     that there existed a substantial risk that injury would result from
     his driving, i.e., a high probability that a motor vehicle accident
     would result from driving in that manner, that he was aware of
     that risk and yet continued to drive in such a manner, in essence
     callously disregarding the risk he was creating by his own
     reckless driving.

Bullick, 830 A.2d at 1003.

     At the non-jury trial, the Commonwealth presented eyewitness

testimony from Dimovitz and Mosser, who observed Appellant disregard the

construction cones and travel in the prohibited right-hand lane. TCO, at 27-

28. “Once in the prohibited right-hand lane, Dimovitz saw [Appellant] travel

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at an accelerated rate of speed in an attempt to pass the line of traffic

traveling in the proper left-hand lane, despite this area being an active

construction work zone.” Id. at 28. (emphasis added). Appellant ultimately

lost control of his vehicle and struck both Dimovitz’s and Mosser’s vehicles

before colliding with the guide rail. Id. Appellant should have known that a

high probability of causing an accident existed as a result of driving in such a

manner.

      These facts are analogous to the facts in Commonwealth v. Jeter,

937 A.2d 466 (Pa. Super. 2007), where we upheld a reckless driving

conviction based on the following tangible indicia of unsafe driving: 1) the

defendant was traveling on the Pennsylvania turnpike, presumably at an

increased speed; 2) an eyewitness observed the defendant weaving in and

out of the roadway for several miles before losing control and crashing into

the center barrier; 3) the defendant’s blood alcohol level was 0.21 within

two hours of his operation of the vehicle; and 4) the officer on the scene

found a half-empty bottle of liquor on the front passenger-side floor of the

defendant’s vehicle. While there was no valid blood alcohol test results in

the case presently before this Court, Officer Cohowicz concluded based on

his knowledge, experience, training, and his observations of Appellant, that

Appellant had been driving under the influence of alcohol. TCO, at 28-29.

Furthermore, Appellant admitted to consuming alcohol a mere hour before

the accident. TCO, at 8. Based on the evidence presented, the trial court

was reasonable in its finding of reckless driving.

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      Appellant next challenges the weight of the evidence to support his

convictions.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury’s verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant bases his weight of the evidence claim on his assertion that

the trial court “gave short shrift” to the testimony of Michelle Everett.

Appellant’s Amended Brief, at 17. However, the trial court considered Ms.

Everett’s testimony presented at trial and found her testimony to be not

credible. TCO, at 30. “[O]n issues of credibility and weight of the evidence,

an appellate court defers to the findings of the trial judge, who has had the

opportunity to observe the proceedings and demeanor of the witnesses.”

Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002).

The trial court, as fact finder, concluded that the elements of driving under

the influence of alcohol incapable of safe driving and reckless driving were




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proven beyond a reasonable doubt. We ascertain no abuse of discretion in

the trial court’s denial of Appellant’s challenge to the weight of the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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