J-A24009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CRAIG DORIAN HALL                          :
                                               :
                       Appellant               :   No. 389 MDA 2018

           Appeal from the Judgment of Sentence February 14, 2018
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001229-2016


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 21, 2018

       Craig Dorian Hall appeals from the judgment of sentence entered

February 14, 2018, in the Court of Common Pleas of Lebanon County, to serve

a term of imprisonment of six months to two years less one day of

incarceration, after he was found guilty by the trial judge of driving under the

influence (DUI) (highest rate of alcohol), DUI (general impairment), driving

on roadways laned for traffic, and careless driving.1         Hall contends the

evidence presented at his stipulated bench trial was insufficient to prove him

guilty of DUI (highest rate of alcohol), because the Commonwealth did not

establish his blood alcohol content (BAC) in whole blood.       Based upon the

following, we affirm.


____________________________________________


1   75 Pa.C.S. §§ 3802(c), 3802(a)(1), 3309(a), and 3714(a), respectively.
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      The non-jury trial in this case consisted of a Stipulation (Exhibit 1), with

four exhibits, numbered one through four, entered into evidence.              The

Stipulation and exhibits set forth the following:

      (1)   On April 12, 2016, at approximately 7:30 P.M., [Hall], was
            charged with two (2) counts of Driving Under the Influence
            of Alcohol and two summary offenses by Trooper Manuel
            Cabrera-Maldonado of the Pennsylvania State Police.

      (2)   The charges relate to an incident that occurred on or about
            11:35 A.M. on December 26, 2015 on [R]oute 934,
            approximately four (4) miles south of Jonestown Road in
            East Hanover Township, Lebanon County, Pennsylvania,
            where Trooper Cabrera-Maldonado has jurisdiction.

      (3)   On December 26, 2015 at 11:35 A.M., Trooper
            [Cabrera-]Maldonado of the Pennsylvania State Police
            responded to the scene of a single vehicle accident at PA-
            9[34] in Lebanon County, PA.

      (4)   Upon arrival, Tpr. [Cabrera-]Maldonado found [Hall’s]
            vehicle, a gold 2000 Chevrolet Malibu with disabling damage
            to the front of the vehicle.

      (5)   Tpr. [Cabrera-]Maldonado observed an ambulance on scene
            and entered the rear of the ambulance and observed [Hall]
            being treated for injuries.

      (6)   Tpr. [Cabrera-]Maldonado questioned [Hall] who admitted
            to being the driver of the aforementioned vehicle, and [Hall]
            accurately provided his name and date of birth.

      (7)   Tpr. [Cabrera-]Maldonado further questioned [Hall] who
            provided a thorough description of the accident.

      (8)   Tpr. [Cabrera-]Maldonado observed the strong odor of
            alcohol emanating from [Hall’s] breath and that he had
            slurred speech and blood shot glassy eyes.

      (9)   Tpr. [Cabrera-]Maldonado questioned [Hall] if he had
            consumed an alcoholic beverage prior to him driving and


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          [Hall] related the day before he had one-half of a case of
          beer, but denied he consumed beer before driving.

     (10) [Hall] was transported to the Penn State Hershey Medical
          Center for treatment for his injuries sustained during the
          vehicle    crash    at    the     conclusion    of    Tpr.
          [Cabrera-]Maldonado's questions.

     (11) [Hall’s]  blood    was     drawn   pursuant    to   Tpr.
          [Cabrera-]Maldonado's request memorialized in a Law
          Enforcement Agency Certification of Request for Blood or
          Urine Testing under the Pennsylvania Vehicle Code.
          (Attached hereto as Exhibit 1).

     (12) Hershey Medical Center staff drew [Hall’s] blood and
          submitted it to the Department of Pathology and Lab
          Medicine for toxicology analysis.

     (13) At all times [Hall’s] blood sample was appropriately
          maintained and preserved for chain of custody purposes.

     (14) Penn State Hershey Medical Center's Department of
          Pathology and Lab Medicine is approved to determine the
          Blood Alcohol Content (BAC) of blood serum samples under
          the Vehicle Code.

     (15) Tests for BAC of [Hall’s] blood serum sample were certified
          by Monica Straub, a Supervisor in the Automated Testing
          Laboratory in the Chemistry Department at the Hershey
          Medical Center at 12:41 [P.M.] on December 26, 2015.

     (16) Ms. Straub has been appropriately educated and trained to
          conduct such work. (Attached hereto as Exhibit 2).

     (17) The testing revealed [Hall’s] blood serum to possess a 391
          mg/dL ethanol level. [Hall’s] medical records memorialize
          the results of the test. (Attached hereto as Exhibit 3).

     (18) Ms. Straub would testify that BAC is measured in g/dL.

     (19) Ms. Straub would testify that dividing a mg/dL unit of
          measurement by 1,000 results in a g/dL measurement,
          therefore dividing a blood serum ethanol level measured in
          mg/dL by 1,000 would give the sample owner's BAC.

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       (20) Ms. Straub would testify that Defendant's BAC was .391.

       (21) Ms. Straub's testimony would be consistent with the
            statements contained within paragraphs fifteen (15)
            through nineteen (19).

       (22) Defendant admits to the allegations contained in the
            Criminal Information filed in the above–captioned matter as
            an accurate description of the events in question. (Attached
            hereto as Exhibit 4).

Stipulation, Commonwealth Exhibit 1, 11/20/2017.

       The trial judge found Hall guilty of the above stated crimes, and upon

the trial court’s finding of guilt, Hall’s counsel made an oral motion for acquittal

on the DUI – highest rate of alcohol charge, on the basis that Hall’s blood

alcohol reading was not established in whole blood.2 The trial court denied

the motion. Thereafter, the trial court sentenced Hall. Prior to sentencing,

Hall’s counsel renewed his oral motion for judgment of acquittal of the DUI –

highest rate of alcohol charge. The trial court again denied the motion, and

sentenced Hall. This appeal followed.3

       The sole issue presented in this appeal is a challenge to the sufficiency

of the evidence to sustain the conviction for DUI (highest rate of alcohol). Our

standard of review of a sufficiency claim is, as follows:


____________________________________________


2Pursuant to Pennsylvania Rule of Criminal Procedure 606, “A defendant may
challenge the sufficiency of the evidence to sustain a conviction of one or more
of the offenses in one or more of the following ways: … a motion for judgment
of acquittal made orally immediately after the verdict.”            Pa.R.Crim.P.
606(A)(4).



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      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying [the above] test, we may not
      weigh the evidence and substitute our judgment for the fact-
      finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant's guilt
      may be resolved by the fact-finder 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. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the [finder] of fact 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. Haight, 50 A.3d 137, 140 (Pa. Super. 2012) (citation

omitted).

      A conviction of DUI (highest rate of alcohol) requires proof that (1) the

defendant was driving, operating, or in actual physical control of the

movement of a vehicle, and (2) the defendant's blood alcohol content was

0.16% or higher within two hours of driving, operating, or being in control of

the vehicle. 75 Pa.C.S. § 3802(c). Hall concedes he was operating a vehicle

within two hours of when his blood was drawn at the Penn State Hershey

Medical Center.   However, Hall contends the evidence stipulated to by the

parties was insufficient because the Commonwealth only presented blood

serum testing results and therefore, the trial court could not determine Hall’s

blood alcohol level, in whole blood, beyond a reasonable doubt. In support,


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Hall cites Commonwealth v. Karns, 50 A.3d 158, 161 (Pa. Super. 2012),

for the proposition that “evidence of testing performed on blood serum,

plasma, or supernatant, ‘without conversion, will not suffice.’” Hall’s Brief at

11.

      Hall claims the Stipulation contains no reference to Hall’s blood serum

being converted, and the words “convert,” “conversion factor,” and “whole

blood” are not found in the stipulated facts. Hall argues there is no mention

that Ms. Straub’s dividing the blood serum reading by 1,000 in order to change

the unit of measurement from milligrams per deciliter (mg/dL) to grams per

deciliter (g/dL) was a conversion factor. Hall states that dividing the serum

results by 1,000 changed the unit of measurement for presenting the blood

serum results. Hall asserts the division “did not convert his serum results to

whole blood results; it simply changed the formatting of the presentation.”

Hall’s Brief at 14.

      The Commonwealth takes the position that the Stipulation and exhibits

set forth the testimony that would have been provided by Monica Straub. The

Commonwealth maintains:

      The stipulation provided clear evidence of a conversion factor to
      [Hall’s] BAC from serum. As stipulated by the parties, the
      conversion factor that would be testified to by Ms. Straub would
      be to divide the serum alcohol concentration by 1,000 to
      determine the correct BAC. Defense did stipulate that [Hall’s] BAC
      was .391.

Commonwealth’s Brief at 9.




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      The trial court found “[t]he Stipulation sets forth that Ms. Straub would

testify to the results of testing on [Hall’s] blood serum and explained how that

result would be converted to indicate [Hall’s] accurate blood alcohol content.

(See Stipulation, at Paras. 17-20). The toxicology report confirms this result.

(Exhibit 3).” Trial Court Opinion, 4/30/2018, at 5.

      Based on our review of the record, we conclude there is no basis upon

which to disturb the judgment of sentence. By entering into the Stipulation,

Hall agreed with Ms. Straub’s calculations, and he agreed she would testify

“Defendant’s BAC was .391” — without reservation. Stipulation, supra, ¶20.

Moreover, apart from Hall’s agreement with Ms. Straub’s proposed testimony,

Hall agreed to the allegations in the Information that he

      unlawfully drove operated or was in actual physical control of a
      vehicle, after imbibing a sufficient amount of alcohol such that
      the alcohol concentration in the individuals blood or breath
      was at least .16% or higher, to wit .391%, within two hours
      after the individual has driven, operated, or been in actual physical
      control of the movement of the vehicle.

Stipulation, supra, Exhibit 4 (Information) (emphasis added); see also,

Stipulation, supra, ¶22. Accordingly, the evidence of record was sufficient to

convict Hall of DUI – highest rate of alcohol.




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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2018




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