J-A15001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCIA L. PERRY                            :
                                               :
                       Appellant               :   No. 1441 MDA 2017

              Appeal from the Judgment of Sentence May 16, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005498-2016


BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                              FILED AUGUST 08, 2018

       Marcia L. Perry appeals from the judgment of sentence imposed

following her conviction of Driving under influence of alcohol, General

impairment.1 We affirm.

       On August 25, 2016, an Officer of the Lower Swatara Township Police

Department was conducting routine checks of vehicle license plate numbers.

An initial check on Perry’s vehicle came up as suspended due to insurance



____________________________________________


1Driving under the influence of alcohol, general impairment, is defined in 75
Pa.C.S.A. §3802(a)(1) as: “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.”
J-A15001-18


cancellation.2 Perry was pulled over for a further check on her insurance,

however, the Officer noticed that she operated her car in a reckless manner

and cut off another car. As the Officer approached the vehicle he detected

the odor of an alcoholic beverage, and upon further contact with Perry, he

noticed that she had bloodshot and glassy eyes.

        Although Perry initially refused a field sobriety test, she later agreed.

The tests did not go well for Perry, who later complained that her high heels

interfered with her ability to engage in the field sobriety tests. At trial, the

court found credible the Officer’s testimony that she had earlier stated she

could walk fine in the shoes, and refused the opportunity to remove them prior

to taking the tests. After she was arrested, Perry refused a blood test.

        Following a bench trial held on March 30, 2017, Perry was convicted of

DUI, General Impairment. On May 16, 2017, the trial court ordered Perry to

pay a $300 fine and the costs of prosecution, serve local probation for six

months, perform fifty hours of community service, and to follow-up on the

recommendations of a CRN evaluation.3

____________________________________________


2   It was later determined that Perry’s vehicle was properly insured.

3 “A CRN evaluation is [a] uniform prescreening evaluation procedure for all
[driving under the influence (“DUI”) offenders to aid and support clinical
treatment recommendations offered to the judiciary, prior to sentencing. 67
Pa.Code § 94.2 (emphasis added); see 75 Pa.C.S.A. § 3816 (emphasis
added) (CRN evaluations are used to assist the court in determining what
sentencing, probation[,] or conditions of Accelerated Rehabilitative
Disposition would benefit the person or the public.).” Commonwealth v.



                                           -2-
J-A15001-18


       Perry filed a timely Notice of Appeal and a court-ordered Pennsylvania

Rule of Appellate Procedure 1925(b) Concise Statement of Errors Complained

of on Appeal. The trial court addressed these issues in a memorandum opinion

filed on October 19, 2017.

       On appeal, Perry raises the following questions for our review:

       1.     Whether there was insufficient evidence for the conviction of
              DUI: General Impairment, when there was no evidence that
              Perry was substantially impaired due to alcohol?

       2.     Whether the judge’s finding of guilt for DUI: General Impairment
              is against the weight of the evidence when Perry’s witnesses
              testified that she did not appear impaired and other typical
              indicia of intoxication were discredited?

Brief for Appellant at 4.

       There are well-established distinctions between a claim challenging the

sufficiency    of   the   evidence     and     one   which   challenges the weight of

the evidence.

       The distinction between these two challenges is critical. A
       claim challenging the sufficiency of the evidence, if granted, would
       preclude retrial under the double jeopardy provisions of the Fifth
       Amendment to the United States Constitution, and Article I,
       Section 10 of the Pennsylvania Constitution, Tibbs v.
       Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652
       (1982); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604
       (1983), whereas a claim challenging the weight of the evidence if
       granted would permit a second trial. Id.




____________________________________________


Parsons, 166 A.3d 1242, 1244 n.1 (Pa. Super. 2017) (internal quotation
marks and emphasis omitted).


                                           -3-
J-A15001-18


Commonwealth         v.   Widmer,    744    A.2d   745,   751   (Pa.   2000).    A

claim challenging the sufficiency of the evidence is a question of law, and we

must review whether each material element of the crime charged was proved

beyond a reasonable doubt. See Commonwealth v. Karkaria, 625 A.2d

1167, 1170 (Pa. 1993). A motion for new trial on the grounds that the verdict

is contrary to the weight of the evidence, which may be pursued in the

alternative, concedes that there is sufficient evidence to sustain the

verdict. Commonwealth v. Whiteman, 485 A.2d 459, 462 (Pa. Super.

1984).

      In her first claim, Perry contends that the evidence was insufficient to

sustain her conviction. Perry argues that the evidence did not prove that

alcohol had substantially impaired her faculties required to safely operate

the vehicle. In a perceptive statement, Perry argues that this is “a drunk

driving case with no evidence of drunk driving.” Id. at 16. Perry also asserts

that the field sobriety tests were unfairly conducted because she was wearing

“five-inch heels.”

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence presented at trial, combined with all reasonable

inferences therefrom, is sufficient to conclude that the Commonwealth

established   each    element   of    the    offense   beyond    a     reasonable

doubt. Commonwealth v. Lyons, 79 A.3d 1053, 1062 (Pa. 2013).                    We

evaluate the record in the light most favorable to the Commonwealth as


                                     -4-
J-A15001-18


verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence. See Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007). However, the Commonwealth need not establish

guilt to a mathematical certainty. See id. In addition, this Court may not

substitute its judgment for that of the factfinder, and where the record

contains support for the convictions, they may not be disturbed. See

id. Lastly, we note that the finder of fact is free to believe some, all, or none

of the evidence presented. See Commonwealth v. Hartle, 894 A.2d 800,

804 (Pa. Super. 2006).

      To support a conviction under Section 3802(a)(1), which is a “time of

the driving” offense, the prosecution must prove “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. Teems, 74 A.3d 142, 145 (Pa.

Super. 2013) (quoting Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.

2009)).

      The type, quantum and quality of evidence that may satisfy this burden

include but are not limited to:

      [T]he 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 ether physical signs of intoxication; odor of
      alcohol, and slurred speech. Blood alcohol level may be added to
      this list, although it is not necessary and the two hour time limit
      for measuring blood alcohol level does not apply. . . The weight to
      be assigned these various types of evidence presents a question

                                      -5-
J-A15001-18


      for the fact-finder, who may rely on his or her experience,
      common sense, and/or expert testimony. Regardless of the type
      of evidence that the Commonwealth proffers to support its case,
      the focus of subsection 3802(a)(1) remains on the inability of the
      individual to drive safely due to consumption of alcohol-not on a
      particular blood alcohol level.

Teems, 74 A.3d at 145 (quoting Segida, 985 A.2d at 879).

      The trial court aptly addressed each of Perry’s contentions. In its

memorandum opinion, the trial court referred to the testimony of the arresting

officer, much of which was corroborated by a Sergeant of the same police

department. The trial court found the evidence of the Appellant’s unsafe

driving, the odor of an alcohol beverage, bloodshot eyes, admission by the

Appellant that she had had at least two alcoholic drinks before driving, and

her failure to pass the field sobriety tests, as sufficient to support the

conviction.

      Perry’s second issue contends that her conviction should be vacated

because the trial court failed to properly weigh the evidence presented

by Appellant and to consider the evidence presented on Appellant's behalf by

her two other witnesses. An appellate court’s purpose in evaluating a

challenge to the weight of the evidence is to “determine whether the trial court

abused its discretion and not to substitute its own judgment for that of the

trial court.” Commonwealth v. Murray, 597 A.2d 111, 114 (Pa. Super.

1991)(en banc)(citations omitted). In a bench trial, the trial judge is the

appropriate fact-finder and it is up to the judge to determine the facts of the




                                     -6-
J-A15001-18


case while passing on the credibility of witnesses and the weight of the

evidence produced.

      A true “weight of the evidence” claim contends the verdict is a product

of speculation or conjecture.

      Such a claim requires a new trial only when the verdict is so
      contrary to the evidence as to shock one's sense of
      justice. Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d
      334. . . A decision regarding the weight of the evidence is within
      the sound discretion of the trial judge whose decision will not be
      reversed     on    appeal     absent    an    abuse    of     that
      discretion. Commonwealth v. Fox, 422 Pa.Super. 224, 619 A.2d
      327 (1993) . . . .

Commonwealth v. Dougherty, 679 A.2d 779, 785 (Pa. Super. 1996).

      The trial judge found that the verdict clearly did not shock his sense of

justice. Having found that the two officers provided credible evidence, the trial

court determined the challenge to the weight of the evidence to be without

merit.

      Upon review, we conclude that the trial court did not err in denying

Perry’s Post-Sentence Motion, and we affirm upon the sound reasoning of

President Judge Richard A. Lewis, as filed in the Court of Common Pleas of

Dauphin County, Criminal Division, at No. CP-22-CR-0005498-2016. See Trial

Court Opinion, 10/19/17.




                                      -7-
J-A15001-18




     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2018




                                 -8-
                                                                                             Circulated 07/16/2018 03:20 PM




     COMMONWEALTH OF PENNSYLVANIA                              : IN THE COURT OF COMMON PLEAS
                                                               : DAUPHIN COUNTY, PENNSYLVANIA
                               v.
                                                               : NO.: CP·22-CR-0005498-2016
                                                                      (1441 MDA 2017)
     MARCIA PERRY,                                             : CRIMINAL MATTER
           Defendant/Appellant

                                          MEMORANDUM OPINION

            Presently before this Court is the Appeal filed in the above-captioned matter. This opinion

    is written pursuant to Pa.R.A.P. 1925(b).

                                           PROCEDURAL BACKGROUND

            A bench trial was held on March 30, 2017 fo1lowing which this Court found the Appellant

    guilty of Count 1 - DUI general impairment'. On May 16, 2017, Appellant was sentenced to pay

costs, a fine of $300, and placed on a period of county probation for a term of six (6) months.

Appellant was ordered to follow through on any recommendations that grew out of the CRN

evaluation, perform 50 hours of community service, and comply with any and all conditions of a

DUI sentence. Appellant's post-sentence motion was denied on August 29, 2017. A timely notice

of appeal was filed on September 6, 2017. In compliance with this Court's 1925(b) order,

Appellant filed a 1925(b) Statement. The basis for this appeal has been expressed by the Appellant

as follows:

            1. The Court erred in finding sufficient evidence for Count I, DUI, General lmpainnent

                because Perry was not substantially impaired.

           2. Alternatively, the Court erred in finding the conviction for Count l, DUI, General

                Impairment, was not against the weight of the evidence because Perry was not

               substantially impaired beyond a reasonable doubt.2


1
    75 Pa.C.S.A. §3802(a)(l). This Court took the matter under advisement and issued a ruling on April 17, 2017.
2
    See Appellant's 1925(b) Statement, filed September 27, 2017.

                                                           1
                                                FACTUAL BACKGROUND
           The testimony at the bench trial showed that on August 25, 2016, Officer Patrick Ribec, of

the Lower Swatara Township Police Department, was on duty performing a routine check of a

    vehicle license plate number. Transcript of Proceedings, Bench Trial, March 30, 2017, pages 4, 6

    (hereinafter "N.T. at_"). Officer Ribec initially decided to pull the vehicle over for a suspended

    insurance registration. 3 N. T. at 6. As Officer Ribec was pulling over the Appellant, he noticed that

the Appellant "got over at the last second and cut over into the vehicle which was in front of

    [Officer Ribec]." Id Officer Ribec approached the vehicle and detected an odor of an alcoholic

beverage. He also noticed that the Appellant had bloodshot and glassy eyes. N.T. at 7. The

appellant initially indicated that she did not consume any alcoholic beverages but when confronted

with the odor of alcohol, admitted that she had one mixed drink. N.T. at 7-8. Appellant initially

refused a field sobriety test but eventually agreed to submit to one. N.T. at 8. Officer Ribec

testified that the Appellant was wearing high heels but that the Appellant indicated that she could

walk fine in those shoes. N.T. at 9. Officer Ribec conducted the walk-and-tum test and noticed

the Appellant swaying during the instructional phase. N.T. at 9. Appellant was unable to complete

the task and missed heel-to-toe on every step of her first nine steps. N.T. at 10. Appellant did not

conduct a proper turn by taking choppy steps and had to use her arms to balance herself. N.T. at

11. During the one-leg stand, Appellant counted incorrectly and dropped her foot twice during the

test. N.T. at 12. Officer Ribec had to stop the test because he did not want the Appellant to fall.

N. T. at 13. After the field sobriety tests, AppeJlant was placed under arrest and taken to the judicial




3 Officer Ribec, while on routine patrol, decided to run the registration of the vehicle beside him. The license plate
initially came back suspended due to insurance cancellation. It was later determined that Appellant had proper
Insurance.

                                                          2
    center for a blood draw. N.T. at 13. Officer Ribec read Appellant the PennDOT DL-26 form and

    Appellant refused the requested blood draw. Id.

            Sergeant Daniel Tingle, of the Lower Swatara Township Police, also responded to the

    incident on August 25, 2016.4 N.T. at 40. Sergeant Tingle was present during the field sobriety

    tests and also indicated that Appellant was not able to complete the walk-and-turn test. N.T. at 43.

    Sergeant Tingle also testified that Appellant was unable to keep her foot up and was swaying

    during the one-leg stand test. N.T. at 44. Throughout the incident, Sergeant Tingle was able to

    detect the smell of odor coming from the Appellant. Id.             Based off his training and experience,

    Sergeant Tingle testified that it was his opinion that Appellant was incapable of safe driving. N. T.

    at 45-46.

            Frank Arendt testified on behalf of the Appellant. Mr. Arendt testified that he met with

Appellant on the date of the incident and that she had one glass of wine and some food. N.T. at

47-50. John Bey, a retired Captain in the Pennsylvania State Police, also testified on behalf of the

Appellant. N.T. at 55. Mr. Bey testified that he saw the Appellant on the date of the incident at a

local bar and testified that she did not appear intoxicated. N.T. at 59-60. Finally, the Appellant

testified that she had two drinks. N.T. at 68-70. Appellant also admitted to initially telling the

officer that she had not been drinking. N.T. at 82. Additionally, the Appellant introduced a video

of the incident (Commonwealth's Exhibit 2). N.T. at 84.




4
    Sergeant Tingle is a 19 year veteran and has made 75 DUI arrests and has assisted on hundreds of others.

                                                           3
                                               DISCUSSION

        1. Sufficiency of the evidence:

        Prior Pennsylvania courts have set forth the standard for challenging a sufficiency of the

evidence claim as follows:

            A challenge to the sufficiency of the evidence is a question of law, subject
            to plenary review. When reviewing a sufficiency of the evidence claim,
            the appellate court must review all of the evidence and all reasonable
            inferences drawn therefrom in the light most favorable to the
            Commonwealth, as the verdict winner. Evidence will be deemed to
            support the verdict when it establishes each element of the crime charged
            and the commission thereof by the accused, beyond a reasonable doubt.
            The Commonwealth need not preclude every possibility of innocence or
            establish the defendant's guilt to a mathematical certainty. Finally, the
            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.

            Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citing
            Commonwealth v. Toland, 995 A.2d 1242, 1242 (Pa. Super.
            2010))(citations omitted).


       As previously noted, we found the Appellant guilty of DUI under Section 3802(a)(l) which

provides:

       (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.

       Additionally, we note that "[Subsection 3802(a)(I) 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




                                                 4
    v. Segida, 604 Pa. 103, 114·116, 985 A.2d 871, 879 (Pa. 2009). The Pennsylvania Supreme Court

    in Segida also set forth the following:

               Section 3802(a)(l), like its predecessor [statute], 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 .... The types of evidence that the Commonwealth may proffer in
               a subsection 3802(a)(l) 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. Blood alcohol level may be added to this list, although it is not
               necessary and the two hour time limit for measuring blood alcohol level
               does not apply. Blood alcohol level is admissible in a subsection
               3801(a)(l) case only insofar as it is relevant to and probative of the
               accused's ability to drive safely at the time he or she was driving. The
               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. Regardless of the type of evidence that the
               Commonwealth proffers to support its case, the focus of subsection
               3802(a)(l) remains on the inability of the individual to drive safely due to
               consumption of alcohol-not on a particular blood alcohol level.

              Id at 115-1 16, 985 A.2d at 879 ( cited by Teems at 145).

           Appellant contends that the Commonwealth "presented no evidence to show that Perry's

ability to exercise judgment and ability to react prudently to changing conditions was impaired.

Therefore, the Commonwealth did not present sufficient evidence for Count 1, DUI, General

Impairment, "5


5
  192S(b) Statement, page 2, paragraph 4.1.3. Appellant also contends that she was pulled over for a technical
violation of the vehicle code and that there was no evidence that her actual driving was impaired and that she
displayed no difficulty with walking or standing despite wearing heels.

                                                        5
            Here, the Commonwealth introduced evidence that the vehicle was initially stopped for a

    suspended insurance.6 Officer Ribec, of the Lower Swatara Police Department, testified that he

    saw the Defendant "[get] over at the last second and cut over into the vehicle which was in front

    of me." Additionally, Officer Ribec testified that he smelled an odor of alcohol, saw bloodshot

    eyes and that the Defendant first said she did not consume alcohol but later admitted to having a

    mixed drink. Testimony revealed that Appellant had at least two drinks on the date of the incident.

    Defendant initially refused to submit to a field sobriety test and when she did, Defendant refused

    to take off her high heels telling the officer that "she walks fine in them." As such, Defendant

    failed the walk and tum (taking the wrong number of steps) and the one leg test (leaning/swaying

    and dropping leg). Accordingly, Officer Ribec testified, based off his training and experience, that

it was his opinion that Appellant was under the influence of alcohol to a degree that rendered her

incapable of safe driving. Additionally, Sergeant Tingle of the Lower Swatara Township Police

Department, was also present during the traffic stop. He also testified that based off his training

and experience, Defendant was under the influence of alcohol to a degree that rendered her

incapable of safe driving. The Officers' credible observations along with testimony that Defendant

cut-off a vehicle are sufficient to sustain a conviction of DUI, general impairment. Accordingly,

this issue on appeal is without merit.

           2. Weight of the evidence:

           In reviewing a weight claim, we are mindful of the following:

               The decision of whether to grant a new trial on the basis of a challenge to the
               weight of the evidence is necessarily committed to the sound discretion of the
               trial court due to the court's observation of the witnesses and the evidence. A
               trial court should award a new trial on this ground only when the verdict is so
               contrary to the evidence as to shock one's sense of justice. A motion alleging
               the verdict was against the weight of the evidence should not be granted where
               it merely identifies contradictory evidence presented by the Commonwealth
6
    It was later determined that Defendant had proper Insurance.

                                                          6
            and the defendant. [The Superior Court's] review on appeal is limited to
            determining whether the trial court abused its discretion in denying the motion
            for a new trial on this ground.

        Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations omitted). "Not

merely an error in judgment, an abuse of discretion occurs when the law is overridden or

misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, as shown by the evidence on record." Commonwealth v. Handfield,

34 A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d 3, 6 (Pa. Super.

2011)). In order to prove a violation of this section, the Commonwealth must show: (1) that the

defendant was the operator of a motor vehicle and (2) that while operating the vehicle, the

defendant was under the influence of alcohol to such a degree as to render him or her incapable

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

        Appellant cites the following to support his argument that the verdict is against the weight

of the evidence: (I) the officer did not see any impaired or careless driving behavior; (2) Appellant

displayed no difficulty with walking or. standing despite wearing five (5) inch heels); (3)

Witnesses testified on Appellant's behalf that they saw her shortly before her arrest and she did

not appear impaired in any way; and ( 4) Appellant testified that she was not substantially impaired

nor incapable of safe driving at the time that she was pulled over and arrested. Appellant's

l 925(b) Order at 3, paragraphs 4.2.1-4.2.4. We disagree.

       Because this was a non-jury trial, the verdict clearly does not shock our sense of justice.

We have had the opportunity to hear and see the evidence presented, including the credible

testimony presented by the officers in this case. Here, the Commonwealth established that the

defendant was the operator of the vehicle. Additionally, as mentioned above, Officer Ribec

testified that the Defendant cut-off another vehicle while driving. Officer Ribec detected the odor



                                                  7
of alcohol and noticed that the Defendant had bloodshot eyes. Defendant was unable to perform

the walk and turn test and the one leg stand test. The two expert opinions established that the

Defendant was under the influence of alcohol to such a degree that it rendered her incapable of

safe driving. Accordingly, this issue on appeal is without merit.




Date: October        /_J. . ., 2017



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Distribution: ,olo-tf 1 'l p· -t"t" �
Michael Sprow, Esquire - District Attorney's Office .1:>
Justin J. McShane, Esquire, 3601 Vartan Way, 2nd Fl., Harrisburg, PA 17110 �
Court Administration - Criminal "Jo
Clerk of Courts
Pennsylvania Superior Court, Prothonotary \-rt;J:;I
FILE COPY -Chambers of the Honorable Richard A. Lewis


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