J-S46035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,     :             IN THE SUPERIOR COURT OF
                                  :                   PENNSYLVANIA
             Appellee             :
                                  :
                v.                :
                                  :
DAVID COLEMAN A/K/A MARK COLEMAN, :
                                  :
             Appellant            :             No. 3057 EDA 2011

          Appeal from the Judgment of Sentence October 13, 2011
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006209-2010

BEFORE:    BENDER, P.J.E., OTT, J., and STRASSBURGER,* J.

MEMORANDUM BY STRASSBURGER, J.:          FILED AUGUST 23, 2016

     David Coleman (Appellant) appeals from the judgment of sentence of

90 days to five years of imprisonment following his conviction of his third

offense of driving under the influence (DUI). We affirm.

     The trial court summarized as follows the evidence offered at

Appellant’s non-jury trial, at which he was represented by David Seth

Glanzberg, Esquire.

           On September 26, 2008 at approximately 9:56 p.m.,
     [Appellant] was traveling southbound on the 6200 block of
     Stenton Avenue in Philadelphia, Pennsylvania, toward the
     intersection of Stenton Avenue and Washington Lane.
     [Appellant] was traveling with one passenger in his car, Donald
     Young, Jr. [Appellant] turned his vehicle across two lanes of
     opposing traffic on Stenton Avenue, causing another vehicle to
     strike [Appellant’s] vehicle in the rear-quarter panel. Donald
     Young [] testified [that Appellant] stopped at the stop sign
     before turning across traffic. The vehicle that collided with
     [Appellant’s] car had no stop sign, and thus the right of way.
     Donald Young testified that although [Appellant] proceeded

*Retired Senior Judge assigned to the Superior Court.
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     through the stop sign with caution, the colliding vehicle was
     traveling “fast” and appeared to be racing another vehicle.
     Donald Young further testified he did not smell alcohol on
     [Appellant’s] breath, notice blurry eyes, or notice a swaggered
     gait. Donald Young further testified that after the accident,
     [Appellant] struggled to breathe, limped, and grabbed his chest
     in pain.

           Officers Kristie Trenwith and Lisa Bailey responded to the
     auto accident at Stenton Avenue and Washington Lane. Both
     Officers noticed [Appellant] had a strong smell of alcohol on his
     breath, glassy and bloodshot eyes, and an unbalanced walk.
     Both officers testified [Appellant] was not capable of safely
     operating a motor vehicle at that time because he was
     intoxicated. Officer Trenwith testified that [Appellant] did not
     complain about shortness of breath, chest pains, or ask for
     medical attention. When Officer Trenwith informed [Appellant]
     he was under arrest, [Appellant] replied that he was not the
     vehicle’s driver. Officer Bailey testified that when she told
     [Appellant] she believed he was under the influence of alcohol,
     [Appellant] replied he was not driving the vehicle at the time of
     the accident. [Appellant] was placed under arrest for driving
     under the influence of alcohol.

           [Appellant] testified he did not drink any alcohol on
     September 26, 2008. [Appellant] also denied he told Officers
     Trenwith and Bailey that he was not driving his vehicle that
     evening. [Appellant] testified that he complained to the Officers
     he was experiencing shortness of breath and tightness in his
     chest. After [Appellant] was arrested and processed, he was
     transported by police to Jefferson Hospital approximately two (2)
     hours after the arrest. At Jefferson Hospital, [Appellant’s urine]
     tested positive for opiates and cannabis. [There was no chemical
     evidence offered at trial of the presence of alcohol in Appellant’s
     system.]

Trial Court Opinion (TCO), 4/2/2014, at 1-3.

     Upon the above evidence, the trial court convicted Appellant for DUI in

violation of 18 Pa.C.S. § 3802(a)(1) (“An individual may not drive, operate

or be in actual physical control of the movement of a vehicle after imbibing a


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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.”). On October 13, 2011, Appellant was sentenced to a term

of incarceration of 90 days to five years. On November 3, 2011, Appellant

pro se timely filed a notice of appeal. Also on November 3, 2011, the docket

reflects the newly-entered appearance of Jerome M. Brown, Esquire, on

behalf of Appellant.     On November 9, 2011, Attorney Brown filed on

Appellant’s behalf a concise statement of errors complained of on appeal,

and a motion to proceed in forma pauperis as to fees and costs, noting

therein that Appellant had paid 40% of Attorney Brown’s retainer for

pursuing a motion for bail pending appeal.

        On January 17, 2012, this Court dismissed the appeal based upon

noncompliance with Pa.R.A.P. 3517 (requiring the filing of a docketing

statement).    Appellant pro se filed an application to reinstate the appeal,

which this Court granted by order of March 2, 2012.       In that order, this

Court noted that Attorney Brown had not been permitted to withdraw, and

directed Attorney Brown to enter his appearance in this Court within ten

days.    Attorney Brown complied on March 6, 2012, and filed the required

docketing statement on March 21, 2012.

        Without any explanation we can glean from the record, neither the

trial court nor this Court took further action on the appeal for more than two

years.     On April 2, 2014, the trial court filed its Rule 1925(a) opinion.


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Shortly thereafter, this Court issued a briefing schedule.      Attorney Brown

then filed a motion to withdraw, alleging therein that Appellant had made no

payment to counsel since the initial payment, and that counsel “has not

even heard from [Appellant], except for one phone call, over the past two

years, and he has ignored Counsel’s request for payment or cooperation.”

Petition to Withdraw as Counsel, 5/9/2014, at 1.          Thus, Attorney Brown

sought to withdraw based upon Appellant’s breach of the representation

agreement and “a complete breakdown in communication and in the

relationship between the parties.” Id.

      On May 27, 2014, this Court entered an order allowing Attorney Brown

to withdraw, vacating the briefing schedule, and directing the trial court to

determine within 60 days whether Appellant was eligible for court-appointed

counsel.   On October 9, 2014, Kevin Holleran, Esquire was appointed to

represent Appellant.          A new briefing schedule was established, and both

parties filed briefs following the grant of extensions. Thus, the appeal finally

is ripe for decision.

      Appellant presents one issue for our review: “Did the trial court

commit error by convicting Appellant of DUI[–]general impairment where

the evidence at trial was insufficient to establish that Appellant operated a

motor vehicle after consuming alcohol to [the] point that he was incapable of

safely operating        the   vehicle?”   Appellant’s Brief at 2   (unnecessary

capitalization omitted).


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           In reviewing the sufficiency of the evidence, we consider
     whether the evidence presented at trial, and all reasonable
     inferences drawn therefrom, viewed in a light most favorable to
     the Commonwealth as the verdict winner, support the [] verdict
     beyond a reasonable doubt. The Commonwealth can meet its
     burden by wholly circumstantial evidence and any doubt about
     the defendant’s guilt is to be resolved by the fact finder unless
     the evidence is so weak and inconclusive that, as a matter of
     law, no probability of fact can be drawn from the combined
     circumstances. As an appellate court, we must review the entire
     record ... and all evidence actually received[.] [T]he trier 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. Because evidentiary sufficiency is a question of law,
     our standard of review is de novo and our scope of review is
     plenary.

Commonwealth v. Dawson, 132 A.3d 996, 1001-02 (Pa. Super. 2015)

(internal citations and quotation marks omitted).

     “[S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense,

requiring that the Commonwealth prove the following elements: the accused

was driving, operating, or in actual physical control of the movement of a

vehicle during the time when he or she was rendered incapable of safely

doing so due to the consumption of alcohol.” Commonwealth v. Segida,

985 A.2d 871, 879 (Pa. 2009).      “[A] police officer who has perceived a

defendant’s appearance and acts is competent to express an opinion as to

the defendant’s state of intoxication and ability to safely drive a vehicle.”

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000).

     Appellant’s primary complaint is that the Commonwealth failed to

prove the second element (that he was incapable of driving safely) because



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it did not establish that the collision was his fault.   Appellant’s Brief at 7.

That argument warrants Appellant no relief.

      To establish the second element, it must be shown that alcohol
      has substantially impaired the normal mental and physical
      faculties required to safely operate the vehicle. Substantial
      impairment, in this context, means a diminution or enfeeblement
      in the ability to exercise judgment, to deliberate or to react
      prudently to changing circumstances and conditions. Evidence
      that the driver was not in control of himself, such as failing to
      pass a field sobriety test, may establish that the driver was
      under the influence of alcohol to a degree which rendered him
      incapable of safe driving, notwithstanding the absence of
      evidence of erratic or unsafe driving.

Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003) (quoting

Palmer, 751 A.2d at 228).

      Thus,   in   order   to   obtain    DUI   conviction   of   Appellant,   the

Commonwealth was not required to offer evidence to establish that

Appellant had driven unsafely prior to his arrest (i.e., that the collision was

Appellant’s fault); rather, it had to prove that Appellant drove his vehicle,

and that when he did he so was in an alcohol-induced state that rendered

him incapable of driving safely.

      Mr. Young, Appellant’s passenger, testified that Appellant had been

driving his truck at the time of the collision, and that police arrived between

25 to 30 minutes afterwards. N.T., 1/20/2011, at 11, 30. Officer Trenwith

testified that, when she spoke with Appellant, she “noticed a strong smell of

alcohol coming off his breath, glassy eyes, bloodshot eyes and an

unbalanced walk.” Id. at 41. Officer Bailey also noted the odor of alcohol


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on Appellant’s breath along with his “bloodshot watery eyes and an

unbalanced walk.”      Id. at 55.   The officers also opined, based upon their

experience, that Appellant was under the influence of alcohol and was

unable to operate his vehicle safely.1 Id. at 43, 56. Further, when Officer

Bailey expressed to Appellant her belief that he was under the influence of

alcohol, Appellant lied by claiming that he had not been driving. Id. at 55.

        Viewing this evidence in the light most favorable to the Commonwealth

and giving the Commonwealth the benefit of all reasonable inferences

therefrom, we hold that the Commonwealth’s evidence is sufficient to prove

each element of DUI–general impairment.         See, e.g., Commonwealth v.

Hartle, 894 A.2d 800, 804-05 (Pa. Super. 2006) (holding evidence was

sufficient to sustain general impairment conviction sans a vehicle collision or

chemical proof of alcohol consumption where the defendant “ran a stop sign,

smelled of alcohol, had bloodshot and glassy eyes, was unsteady on his feet,

refused to perform field sobriety tests, and refused a breath test”);

Commonwealth v. Feathers, 660 A.2d 90, (Pa. Super. 1995) (reversing

the trial court’s post-verdict judgment of acquittal, and reinstating the jury’s

guilty verdict, where the record showed that the defendant was found by

police with her car hanging over the edge of a newly-constructed roadway,

and had bloodshot, glassy eyes, slurred speech, staggered when walking,

and the strong odor of alcohol on her breath).


1
    The trial court found the officers to be credible. TCO, 4/2/2014, at 5.

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      Appellant also argues that the evidence was insufficient based upon

(1) a view of the evidence in a light most favorable to himself, crediting his

testimony and that of his longtime friend over the contrary testimony of the

officers, Appellant’s Brief at 7 (“Mr. Young testified that while in Appellant’s

vehicle, he did not detect the odor of alcohol emanating from Appellant and

did not observe[] blood shot or watery eyes.”); and (2) conjecture as to

other possible causes for his post-collision behavior, id. at 8 (“While the

Commonwealth presented evidence that Appellant had difficulty walking and

maintaining balance, it is entirely possible that these physical observations

were the result of Appellant[’s] having recently been in the collision.”).

Those contentions do not support a claim that the evidence was insufficient

to sustain a conviction. See, e.g., Commonwealth v. Kriegler, 127 A.3d

840, 847 (Pa. Super. 2015) (“In reviewing the sufficiency of the evidence,

we view all the evidence admitted at trial in the light most favorable to the

Commonwealth….        [T]he Commonwealth need not establish guilt to a

mathematical certainty.” (citation and quotation marks omitted)).

      Thus, the verdict is supported by sufficient evidence and Appellant is

entitled to no relief from this Court.

      Judgment of sentence affirmed.

      P.J.E. Bender joins.

      Judge Ott concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/23/2016




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