J-S10016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AARON LAWHORN

                            Appellant                 No. 902 EDA 2014


             Appeal from the Judgment of Sentence March 5, 2014
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0006163-2013


BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 13, 2015

        Appellant, Aaron Lawhorn, appeals from the trial court’s March 5, 2014

judgment of sentence imposing four days to six months of incarceration for

driving under the influence of alcohol (“DUI”) in violation of 75 Pa.C.S.A.

§ 3802(b).1 Appellant argues the Commonwealth failed to produce sufficient

evidence to prove his blood alcohol content was at least .10%. We affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    That section provides:

        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 alcohol concentration in the
        individual’s blood or breath is at least 0.10% but less than
        0.16% within two hours after the individual has driven, operated
(Footnote Continued Next Page)
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       In the early morning hours of December 8, 2012, police observed

Appellant’s car twice swerve across a double yellow line. The second time,

Appellant overcorrected and nearly collided into several parked vehicles.

Police stopped Appellant after he failed to stop at a stop sign. Officer Russell

Valenza (“Officer Valenza”) of the Philadelphia Police Department observed

Appellant’s “watery and bloodshot eyes” and ordered Appellant out of his

vehicle. Trial Court Opinion, 11/17/14, at 2. Appellant leaned on his car to

maintain balance.        Based on these observations, Officer Valenza arrested

Appellant for DUI. Officer Mark Ibe (“Officer Ibe”) of the Philadelphia Police

Department administered two breath tests to Appellant.        The lower of the

two results revealed Appellant’s BAC to be .102%.

       The trial court conducted a bench trial on March 5, 2014, at the

conclusion of which it found Appellant guilty of DUI (general impairment and

high rate of alcohol2). Immediately after the trial the court concluded the

former conviction merged into the latter, and imposed sentence as set forth




                       _______________________
(Footnote Continued)

       or been in actual physical control of the movement of the
       vehicle.

75 Pa.C.S.A. § 3802(b).
2
    75 Pa.C.S.A. §§ 3802(a)(1) and (b), respectively.



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above. Appellant filed this timely appeal challenging the sufficiency of the

evidence revealing his BAC.3

       We begin by setting forth the applicable standard of review:

              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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).

       Appellant frames the issue as follows:

              The evidence was insufficient to convict [Appellant] of 75
       Pa.C.S.A. § 3802(b) because, taking into consideration the
       breathalyzer machine’s margin of error for the blood alcohol
       concentration reading, the Commonwealth did not prove that
       [Appellant] had an alcohol concentration in his blood that was at
       least .10% but less than .16%.

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3
   In his Pa.R.A.P. 1925(b) concise statement, Appellant challenged his
convictions under both subsections. In his brief, he does not challenge his
conviction under § 3802(a)(1).



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Appellant’s Brief at 12.

       At trial, Appellant offered an expert witness who opined that the

breathalyzer test Officer Ibe administered has an inherent margin of error of

.004%. Appellant’s expert based his opinion on a United States Department

of Transportation Document dated September 17, 1993. N.T. Trial, 3/5/14,

at 35.     Since the breathalyzer showed Appellant’s BAC to be .102%,

Appellant asserts his BAC could have been as low as .098% and still be

within the margin of error. Since the margin of error includes BAC values

too low to sustain a conviction under § 3802(b), Appellant argues the

evidence is insufficient to support his conviction.

       In Commonwealth v. Sibley, 972 A.2d 1218 (Pa. Super. 2009), this

Court rejected the precise argument Appellant offers here, reasoning that it

implicates the weight of the evidence. In Sibley, the trial court, sitting as

factfinder, found the defendant guilty under § 3802(c)4 because a blood test

placed his BAC at .162%.             Id. at 1219.     The defendant argued the

“coefficient of variation” for the blood test was plus or minus 3%, which

meant the defendant’s BAC could have been as low as .157% or as high as

.167%. Id. Since the low end of that range would result in a violation of

§ 3802(b), a lesser offense, Appellant challenged the sufficiency of the


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4
   A violation of § 3802(c) occurs where the defendant’s BAC is .16% or
higher. See 75 Pa.C.S.A. § 3802(c).



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evidence in support of his conviction under subsection (c).          This Court

denied relief:

              As factfinder in this case, the court was presented with
       specific evidence that [defendant’s] BAC test result was 0.162%.
       It was then for the court to weigh the evidence of the 0.162%
       BAC test result in light of the possibility that the actual BAC
       could have been anywhere within the variation range. Thus, the
       coefficient of variation in this case implicates the weight, not the
       sufficiency of the evidence.

Id. at 1219 (citation omitted); see also Commonwealth v. Mongiovi, 521

A.2d 429, 431 (Pa. Super. 1987) (“It should be pointed out that the term

‘variance’ could imply a test result which would be to [defendant’s]

detriment as well as his advantage. Because we lack a legal presumption as

to how a variance should be considered, its weight must be left with the trier

of fact.”).5

       More recently, in Commonwealth v. Landis, 89 A.3d 694 (Pa. Super.

2014), this Court awarded a new trial where the defendant was convicted

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5
   Under a prior version of the DUI statute, this Court found the evidence
insufficient where a defense expert testified the BAC test in question had a
margin of error of 10% and that the defendant’s BAC likely rose after he
stopped driving and before he took the test. Commonwealth v. Lippert,
887 A.2d 1277, 1278-79 (Pa. Super. 2005). The Commonwealth conceded
that it was impossible to ascertain whether the defendant’s BAC rose or fell
after he stopped driving. Id. at 1279. The Commonwealth also conceded
the test had a margin of error of at least 5%. Id. We believe Lippert is
distinguishable. Lippert was decided under an earlier version of the statute
pursuant to which the Commonwealth had to prove the defendant’s BAC at
the time he was driving. See 75 Pa.C.S.A. § 3731(a)(4), repealed by Act of
Sept. 30, 2003, P.L. 120, No. 24, § 14, effective Feb. 1, 2004. As we
describe in the main text, Sibley is directly on point and controlling here.



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under § 3802(c) for having a BAC of .164% based on a test with an inherent

10% margin of error. Id. at 696. The defendant’s expert witness testified

that the test performed on the defendant’s blood was not the most reliable

test available, and, based on the margin of error, the defendant’s BAC could

have been anywhere from .147% to .180%.           Id. at 698.   We noted the

defendant’s “evidence that a reading of .164% merely reflected a range of

equally possible results from between .147% and .180% was not clarified or

challenged by the Commonwealth.” Id. at 701. Since the verdict was based

on pure speculation, we awarded a new trial. Id.

        Here, Appellant admittedly has not preserved a challenge to the weight

of the evidence.    Despite the results in Sibley and Landis, Appellant has

chosen to challenge the sufficiency of the evidence and portray Sibley as

distinguishable or limited to its facts.   Appellant argues the trial court in

Sibley seemingly declined to credit a portion of the defense expert’s

testimony. Appellant’s Brief at 22. In contrast, Appellant believes the trial

court credited the entirety of the defense expert’s testimony in the instant

case.     Id.    Appellant also argues his expert’s testimony establishes

conclusively that the trial court based its guilty verdict on pure speculation.

Id. at 22-23.    That is, Appellant believes the evidence here establishes a

much greater possibility than the evidence in Sibley that Appellant’s BAC

was below the legal limit.




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       None of these arguments provides a basis for overlooking Sibley’s

holding that margin of error evidence is relevant to the weight to be

assigned to the result of a blood alcohol test. Under the binding authority of

Sibley, Appellant’s failure to challenge the weight of the evidence is fatal to

the argument he raises on appeal.6

       In addition to Appellant’s failure to recognize the binding legal

authority of Sibley, Appellant’s arguments are factually flawed. The record

does not support Appellant’s assertion that the trial court credited the

entirety of his expert’s testimony. The parties stipulated that Officer Ibe, if

he testified, would state that he tested the machine he used immediately

prior to his shift and found the machine to be working accurately with an

error rate of 0%.      N.T Trial, 3/5/14, at 23-25. The parties also stipulated

that the machine Officer Ibe used had been calibrated five days prior to

Appellant’s arrest.      Id. at 25-26.         In three separate rounds of testing

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6
   Appellant argues Sibley is flawed because it forces appellants to challenge
weight of the evidence and seek a new trial even though an acquittal is the
only appropriate remedy. Appellant posits that Sibley and Landis create a
no-win regime whereby an defendant could obtain a new trial based on a
test’s margin of error but have no chance to prevail at the new trial because
the test result, regardless of margin of error, is sufficient for a conviction.
Appellant argues a sufficiency of the evidence challenge is the appropriate
means of obtaining relief because, if successful, it results in acquittal.
Sibley and Landis are binding on this panel. It is our duty to apply them
faithfully and we have done so in this case. The merit of Appellant’s
argument, if any, must be determined either by an en banc panel of this
Court or the Pennsylvania Supreme Court. Given the record before us, we
are very doubtful this is an appropriate test case.



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conducted during calibration, with five tests conducted in each round, the

machine consistently demonstrated a margin of error of no more than

.001%. Id. at 25-28.

       The Commonwealth’s expert testified, to a reasonable degree of

scientific certainty, that the machine Officer Ibe used produced an accurate

BAC reading, and the trial court relied on that testimony in support of its

verdict. Id. at 49; Trial Court Opinion, 7/17/14, at 3. In other words, the

defense expert offered his opinion on the tolerable margin of error for

analytical breath tests in general.7 The Commonwealth produced evidence

detailing the accuracy of the specific machine Officer Ibe used to test

Appellant’s breath, based on a calibration of that machine five days earlier

and testing immediately prior to Officer Ibe’s shift on the day of Appellant’s

arrest.8 The trial court was entitled to rely on stipulated evidence and the

Commonwealth’s expert testimony regarding the accuracy of Officer Ibe’s

____________________________________________


7
    Appellant’s expert testified as follows:

              To make it short, the test [sic] that were conducted on
       analytical breath tests, the instrument, not just the one that
       was used in this case, but all instruments, have been
       certified since ’93 allow for a standard deviation error of .004,
       plus or minus .004.

N.T. Trial, 3/5/14, at 35 (emphasis added).
8
   Appellant concedes the machine was properly calibrated and determined
to be accurate in accordance with all applicable regulations. Appellant’s Brief
at 15-16, n.7. See 67 Pa. Code §§ 77.24 – 77.26.



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machine, and it did so.      The record therefore contains evidence that

Appellant’s BAC was .102%, as determined by an accurate breathalyzer

machine.      We are required to defer to the trial court’s credibility

determinations and we must view the evidence in a light most favorable to

the Commonwealth as verdict winner. Plainly, this is not a case where the

evidence is “so weak and inconclusive that as a matter of law no probability

of fact may be drawn from the combined circumstances[.]” Cahill, 95 A.3d

at 300.     For purposes of our review of a sufficiency of the evidence

argument, that is the end of the matter.

     Appellant’s argument invites this Court to reweigh the evidence in his

favor. Despite this, he chose not to challenge the weight of the evidence.

Since Appellant’s argument does not merit relief, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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