J-S36029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                   Appellee

                   v.

BRYAN RICHARD LOVE,

                   Appellant                       No. 3788 EDA 2016


       Appeal from the Judgment of Sentence of November 2, 2016
            In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-0001744-2016

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

MEMORANDUM BY OLSON, J.:                             FILED JULY 13, 2017

     Appellant, Bryan Richard Love, appeals from the judgment of sentence

entered on November 2, 2016. We affirm.

     The factual background and procedural history of this case are as

follows. On March 12, 2016, between 2:00 and 3:00 a.m., Trooper William

Everett pulled Appellant over after witnessing him driving behind another

vehicle, with his high beams on, through a steady red light. N.T. 8/22/16,

at 11. During the traffic stop, Trooper Everett noticed Appellant’s eyes were

glassy and bloodshot and his breath smelled of alcohol.      Id. at 14, 16.

Appellant admitted to having had two beers that night. Id. at 15. Appellant

was agitated throughout the stop and told Trooper Everett numerous times

that he was nervous. Id. at 41. Trooper Everett asked Appellant to perform

a field sobriety test known as the walk and turn.         Id. at 20.    After
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completing half the test, Appellant stopped and indicated he wanted Trooper

Everett to take him to a hospital to have a blood test administered.      Id.

According to Trooper Everett, Appellant was unable to perform the walk and

turn test properly.    Id. at 27.    At some point during the stop, Appellant

informed Trooper Everett of a then-recent gunshot wound to his leg. Id. at

24. Trooper Everett arrested Appellant and took him to the Chester County

Hospital for a blood test to determine his blood alcohol content. Id. at 21.

The mobile video recorder (“MVR”) in Trooper Everett’s patrol vehicle

recorded the entire stop. Id. at 10.

        On June 3, 2016, the Commonwealth charged Appellant via criminal

information with 14 offenses, including inter alia, driving under the

influence-general impairment (“DUI-general impairment”),1 traffic-control

signals,2 and use of multiple beam road lighting equipment.3      On July 29,

2016, Appellant filed a motion to suppress evidence. On August 12, 2016,

Appellant filed a supplemental motion to suppress the blood test results. On

August 22, 2016, the trial court conducted a suppression hearing to

determine the admissibility of the blood test results. In light of the Supreme

Court of the United States’ decision in Birchfield v. North Dakota, 136

S.Ct. 2160 (2016), the trial court suppressed the blood test results.      On

1
    75 Pa. C.S.A. § 3802(a)(1).
2
    75 Pa. C.S.A. § 3112(a)(3)(i).
3
    75 Pa. C.S.A. § 4306(a).


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October 25, 2016, the parties proceeded to a stipulated fact non-jury trial.

The parties stipulated to the facts found during the suppression hearing, the

admission of the MVR recording, and the date of Appellant’s gunshot wound.

N.T., 10/25/16, at 5, 9. Moreover, the parties stipulated that, if called to

testify, Trooper Everett would state that based on his experience and

training, he believed Appellant was inebriated past the point of safe driving

at the time of his arrest. Id. at 8.

      The trial court found Appellant guilty of DUI-general impairment,

traffic control signals, and use of multiple beam road lighting equipment.

The Commonwealth withdrew the remaining 11 charges.               The trial court

immediately sentenced Appellant to an aggregate term of one to six months’

incarceration. This timely appeal followed.4

      Appellant presents one issue for our review:

      Did the trial court, sitting without a jury, err in finding sufficient
      evidence to convict Appellant on the charge of [DUI-general
      impairment]?


4
  On December 7, 2016, the trial court ordered Appellant to file his concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).      On January 6, 2017, Appellant filed his concise
statement. On January 23, 2017, the trial court issued a Rule 1925(a)
opinion. In its 1925(a) opinion, the trial court suggests that Appellant’s
sufficiency of the evidence claim is waived for lack of specificity in that,
“[Appellant] has failed to identify the element or elements which he claims
are insufficiently supported by the record[.]” Trial Court Opinion, 1/23/17,
at 8. However, a sufficiency challenge will not be deemed waived in a rather
straightforward case, in which the trial court is able to discern the
appellant’s claim and address it in detail. Commonwealth v. Laboy, 936
A.2d 1058, 1060 (Pa. 2007). As this is such a case, we decline to find
Appellant’s sufficiency challenge waived.

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Appellant’s Brief at 2.

      “Whether sufficient evidence exists to support the verdict is a question

of law; our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017)

(citation omitted).   In assessing Appellant’s sufficiency challenge, we must

determine “whether viewing all the evidence admitted at trial in the light

most favorable to the [Commonwealth], there is sufficient evidence to

enable the fact–finder to find every element of the crime beyond a

reasonable doubt.” Commonwealth v. Williams, 153 A.3d 372, 375 (Pa.

Super. 2016) (citation omitted).      “The evidence need not preclude every

possibility of innocence and the fact-finder is free to believe all, part, or none

of the evidence presented.” Commonwealth v. Kennedy, 151 A.3d 1117,

1121 (Pa. Super. 2016) (citation omitted).

      In order to sustain a DUI-general impairment conviction, “the

Commonwealth [must] 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. Eichler, 133 A.3d

775, 790 (Pa. Super. 2016), appeal denied, 2016 WL 6883294 (Pa. Nov. 22,

2016).   Appellant concedes that he was driving, operating or in physical

control of the vehicle.   Therefore, we must only determine whether there




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was sufficient evidence to prove he was intoxicated to the point of being

incapable of safe driving.

      Our Supreme Court has established,

      [t]he types of evidence that the Commonwealth may proffer in a
      [DUI-general impairment] 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.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

      Appellant makes a great deal of the fact that Trooper Everett followed

Appellant for one-half mile before initiating the traffic stop and did not

witness any swerving or reckless driving during that time. Appellant’s Brief

at 17, 21. However, evidence of erratic driving is not necessary to a finding

of guilt under the statute, it is only one factor that the factfinder may

consider. Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011)

(citation omitted).

      Appellant contends that his use of the high beams and failure to stop

at the red light are not indicia of intoxication. Appellant’s Brief at 21. We

disagree. In the instant case, Appellant drove through a steady red light,

with his high beams activated, after 2:00 a.m., in plain view of a marked

police vehicle.   That type of driving leads to the reasonable inference that

Appellant was intoxicated. See Commonwealth v. Stanley, 629 A.2d 940,

943 (Pa. Super. 1993) (“These observations [alcohol on the breath and


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glassy, bloodshot eyes], combined with the officer's testimony that he saw

appellant run a red light, clearly are sufficient to convict on the charge of

DUI/incapable of safe driving.”).

      Furthermore, Appellant had glassy and bloodshot eyes, smelled of

alcohol, admitted to having been drinking, conducted himself in an agitated

manner, and was unable to pass the walk and turn field sobriety test. He

argues that his eyes were bloodshot because he worked more than 50 hours

that week and that his inability to perform the walk and turn test was a

result of a gunshot wound to his leg.       Appellant’s Brief at 19.   However,

Appellant smelled of alcohol, so it was reasonable to infer that his bloodshot

and glassy eyes were a result of his drinking. Appellant did not indicate to

Trooper Everett that the gunshot wound was the reason for his problems

with the walk and turn test.      Moreover, Appellant did not have a problem

getting out of the car or walking to the back of the car to perform the field

sobriety tests. His leg did not prevent him from walking normally, or feeling

comfortable enough to drive, so it does not excuse his inability to perform

the sobriety test. See Segida, 985 A.2d at 879 (the Commonwealth may

offer evidence of failure to pass a field sobriety test and physical signs of

intoxication, e.g., odor of alcohol, or bloodshot eyes, as proof the defendant

was incapable of safe driving).

      Additionally, Appellant told Trooper Everett that he was headed to the

Brickette to pick up his car and had missed the exit, but his girlfriend


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testified that they were on their way to her home in Frazer. N.T. 8/22/16, at

14, 15, 60. Either way, Appellant had missed the appropriate exit, which is

another indication of his impaired state.       Finally, at trial, the parties

stipulated that if called to testify, Trooper Everett would testify that based

on his training and experience, he believed Appellant was impaired to the

point that he was incapable of safe driving. After reviewing the evidence in

a light most favorable to the Commonwealth, we conclude the evidence was

sufficient to support Appellant’s conviction.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2017




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