J-S60044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
  SCOTT E. RIGGAN                              :
                                               :
                       Appellant               :   No. 755 MDA 2018

          Appeal from the Judgment of Sentence December 20, 2017
              in the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0002000-2016

BEFORE:      SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED DECEMBER 20, 2018

       Scott E. Riggan (Appellant) appeals from his December 20, 2017

judgment of sentence imposed after he was found guilty of driving under the

influence of alcohol (DUI)–general impairment and a summary offense relating

to driving a vehicle within a single lane. We affirm.

       The trial court provided the following factual summary.

             Trooper [James] Paparella testified that on June 10, 2016,
       at approximately 6:00 p.m., he received a dispatch call for a
       reported [] single-vehicle accident involving a motorcycle[,] with
       the operator [lying] in the middle of the road. When Trooper
       Paparella arrived on the scene, he observed the motorcycle, which
       ha[d] sustained heavy damage, [lying] in the southbound lane,
       and noticed debris from the motorcycle had been drug across the
       center line[,] indicating that the motorcycle had been traveling in
       the northbound lane. Trooper Paparella spoke with EMS on the
       scene[,] who directed [Trooper Paparella] to the motorcycle
       operator, identified as [Appellant], in the back of an ambulance.
____________________________________________


* Retired Senior Judge assigned to the Superior Court.
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      Trooper Paparella then spoke with [Appellant], who was lying on
      a stretcher in the back of the ambulance. As he spoke with
      [Appellant], Trooper Paparella stated that he was inches away
      from [Appellant] and could smell the overwhelming odor of
      alcohol. Trooper Paparella also indicated that [Appellant’s] eyes
      were bloodshot and his speech was slurred while [Trooper
      Paparella] asked him questions. When Trooper Paparella asked
      [Appellant] if he had been drinking, [Appellant] responded that he
      had three drinks about twenty minutes prior to the accident.
      When asked about what caused the accident, [Appellant] replied
      that he “lost control and [] crashed.” Trooper Paparella stated
      that he did not perform any field sobriety tests because the
      priority was to take care of [Appellant’s] injuries.

            Trooper Paparella prepared a crash report after the initial
      investigation. …[T]he weather conditions were dry and clear and
      there was still daylight outside. Trooper Paparella indicated that
      there were no potential weather, environmental[,] or roadway
      conditions that appeared to be a factor in the accident.

            On cross-examination, Trooper Paparella admitted that he
      had not actually seen [Appellant] driving the motorcycle as
      [Appellant] was in the ambulance when [Trooper Paparella]
      arrived on the scene. Trooper Paparella also admitted that he had
      not taken specific measurements at the accident scene to
      determine speed or performed an extensive investigation as to
      other possible causes of the accident. Trooper Paparella further
      indicated that he could[ not] be certain that medications received
      in treatment by EMTs or injuries sustained could have caused
      [Appellant’s] slurred speech and bloodshot eyes.

            [Appellant] then called Wade Bartlett (“Bartlett”) to testify.
      Bartlett has an extensive background in mechanical engineering
      and was qualified to give his expert opinion in the area of accident
      reconstruction. Bartlett testified as to various extensive research
      into motorcycles and crash statistics and then offered his opinion
      that[,] based on the information provided in Trooper Paparella’s
      report and his review of other materials including maps of the
      area, he could not conclude [whether] alcohol was a contributing
      factor to the accident or not.

Trial Court Opinion, 4/20/2018, at 2-3 (citations to the record omitted).




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       Following the trooper’s investigation, Appellant was charged with two

DUI offenses and two summary offenses. A nonjury trial was held on August

29, 2017.       The trial court found Appellant guilty of the DUI–general

impairment offense charged pursuant to 75 Pa.C.S. § 3802(a)(1) and a

summary offense relating to driving within a single lane, and not guilty of a

summary offense relating to driving at a safe speed.1 On December 20, 2017,

the trial court sentenced Appellant to 48 hours to 6 months of incarceration.

       Appellant timely filed a post-sentence motion challenging, inter alia, the

weight of the evidence, which the trial court denied. This timely-filed appeal

followed. Appellant complied with Pa.R.A.P. 1925(b), and the trial court, in

lieu of a Rule 1925(a) opinion, directed us to its April 20, 2018 opinion denying

Appellant’s post-sentence motion.

       On appeal, Appellant challenges the sufficiency of the evidence

supporting his DUI–general impairment conviction. Appellant’s Brief at 4. He

also contends that the trial court abused its discretion by denying his post-

sentence motion challenging the weight of the evidence. Id. at 4, 21.

       With respect to his sufficiency claim, the following principles apply.

       The standard of review for a challenge to the sufficiency of the
       evidence is to determine whether, when viewed in a light most
       favorable to the verdict winner, the evidence at trial and all
       reasonable inferences therefrom is sufficient for the trier of fact to
       find that each element of the crimes charged is established beyond
       a reasonable doubt. The Commonwealth may sustain its burden
____________________________________________


1The Commonwealth nolle prossed the DUI–highest rate offense charged
pursuant to 75 Pa.C.S. § 3802(c).


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     of proving every element beyond a reasonable doubt by means of
     wholly circumstantial evidence.

     The facts and circumstances established by the Commonwealth
     need not preclude every possibility of innocence. Any doubt raised
     as to the accused’s guilt is to be resolved by the fact-finder. As
     an appellate court, we do not assess credibility nor do we assign
     weight to any of the testimony of record. Therefore, we will not
     disturb the verdict 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.

Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)

(citations and quotations omitted).

     The crux of Appellant’s argument is that there was insufficient evidence

to prove Appellant was “substantially impaired to a degree which rendered

him incapable of driving safely.” Id. at 13-14. Thus, we bear in mind the

following. Subsection 3802(a)(1) of the Vehicle Code 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.

75 Pa.C.S. § 3802(a)(1). As this Court has explained,

     [w]ith respect to the type, quantum, and quality of evidence
     required to prove a general impairment violation under
     [Subs]ection 3802(a)(1) … :

           [Subs]ection 3802(a)(1), like its predecessor [DUI
           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.


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           …The types of evidence that the Commonwealth may
           proffer in a subsection 3802(a)(1) 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.

                                     ***

           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)(1) remains
           on the inability of the individual to drive safely due to
           consumption of alcohol—not on a particular blood
           alcohol level.

Commonwealth v. Eichler, 133 A.3d 775, 790 (Pa. Super. 2016), quoting

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). The “classic signs

of intoxication [include] red, glassy eyes and slurred, slow speech.”

Commonwealth v. Teems, 74 A.3d 142, 147 (Pa. Super. 2013).

     The trial court offered the following in support of its determination that

Appellant was incapable of safely driving due to alcohol consumption.

     [A] police officer, having perceived a defendant’s appearance and
     acts, is competent to testify upon opinion as to the defendant’s
     state of intoxication and ability to drive a vehicle safely.
     Com[monwealth] v. Neiswonger, 488 A.2d 68, 70 (Pa. Super.
     1985). Trooper Paparella observed [Appellant’s] bloodshot and
     glass[y] eyes, his slurred speech[,] and the strong odor of alcohol,
     which was amplified as he moved closer to [Appellant. Appellant]
     also admitted to having three drinks twenty minutes prior to the
     accident.


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             It is true that [some of Appellant’s] symptoms could have
      resulted from the injuries sustained or from the treatment thereof.
      However, the Commonwealth is not tasked to invalidate every
      possibility of innocence. “Rather, the court needed only to be
      convinced beyond a reasonable doubt.” Com[monwealth] v.
      Sibley, 972 A.2d 1218, 1220 (Pa. Super. 2009). Moreover, the
      fact that Trooper Paparella failed to administer any field sobriety
      tests is not dispositive as “the law is well settled that reasonable
      grounds to arrest does not require the failure of field sobriety
      tests.” Com[monwealth] v. Slonaker, 795 A.2d 397, 402 (Pa.
      Super. 2002).

             Upon review of all the testimony and evidence at trial, and
      upon weighing the totality of the circumstances, [the trial court]
      found [Appellant] guilty of driving under the influence of alcohol
      after imbibing a sufficient amount of alcohol so as to render him
      unable to safely operate the motorcycle. In [its] analysis, [the
      trial court] noted that [it] did not infer from the accident itself
      [Appellant’s] inability to drive safely. [It] also acknowledged that
      the accident or subsequent treatment might have contributed to
      [Appellant’s] slurred speech.       Nevertheless, [the trial court]
      concluded that the bloodshot eyes, strong scent of alcohol[,] and
      admission to drinking provided the overwhelming factor[s] in
      weighing the totality of the circumstances to convince [the trial]
      court of [Appellant’s] guilt beyond a reasonable doubt.

Trial Court Opinion, 4/20/2018, at 6-7.

      Here, Appellant admitted he was driving, and thus the first element of

the offense is satisfied.   N.T., 8/29/2017, at 90.    However, he argues on

appeal that because the trial court did not consider his motorcycle accident as

evidence of his impairment, and because slurred speech and bloodshot eyes

could have been caused by the accident and medical treatment he received at

the scene, the remaining evidence, i.e., an odor of alcohol and his admission

to drinking three drinks, was not enough to prove he was incapable of safely

driving. Appellant’s Brief at 13.


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     Viewing the evidence at trial and all reasonable inferences therefrom in

the light most favorable to the Commonwealth, we find that the trial court, as

factfinder, could reasonably conclude from the totality of the circumstances

that Appellant was incapable of safely driving due to alcohol consumption.

Our review of the record reflects Trooper Paparella testified that, upon

entering the ambulance where Appellant was being treated, he “smelled an

overwhelming odor of alcoholic beverage.” N.T., 8/29/2017, at 11. As he

spoke with Appellant, Trooper Paparella was only inches away from him and

noticed the odor of alcohol smelled “even stronger.” Id. at 10-11. He stated

that Appellant’s eyes were bloodshot and his speech was slurred and slow as

he asked Appellant questions.        Id. at 11.   Based on his training and

experience, these signs indicated to Trooper Paparella that Appellant was

under the influence of alcohol. Id. In addition, when Trooper Paparella asked

Appellant whether he had been drinking, Appellant responded that “he had

three drinks … 20 minutes before he crashed.”      Id. at 12. When Trooper

Paparella asked him what caused the accident, Appellant replied that he “lost

control and [] crashed.”   Id.   Trooper Paparella opined that no potential

weather, environmental, or roadway conditions appeared to be a factor in the

accident because at the time of accident, it was daylight, the weather

conditions were dry and clear, and the accident occurred on a straightaway

section of the road. Id. at 14-15.




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      We agree with the trial court that Appellant’s emitting an overwhelming

odor of alcohol, physical signs of intoxication, and admission to drinking three

drinks 20 minutes prior to the accident are sufficient to support the inference

that Appellant was incapable of safely driving due to alcohol consumption.

See Eichler, 133 A.3d at 790. Based on the foregoing, when viewing all the

evidence at trial in the light most favorable to the Commonwealth, we

conclude that the Commonwealth introduced sufficient evidence to sustain

Appellant’s DUI–general impairment conviction.

      We now turn to Appellant’s second claim, where he contends

alternatively that the verdict is contrary to the weight of the evidence. See

Appellant’s Brief at 19-21.   His weight-claim is based on the trial court’s

determination that his slurred speech and bloodshot eyes were caused by

alcohol and not some other factor. Id. at 21.

      The following standard is applicable to challenges to the trial court’s

discretion in determining whether the verdict is against the weight of the

evidence.

      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 and the defendant.
      Our 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.

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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)).

      Because we find sufficient evidence to establish Appellant was incapable

of safely driving due to alcohol consumption, we discern no abuse of discretion

in the trial court’s denial of his post-sentence motion.       Because this was a

non-jury trial, the verdict clearly did not shock the trial court’s sense of justice.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2018




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