J-A31028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHAD EVERETT WANDEL

                            Appellant                 No. 554 MDA 2015


            Appeal from the Judgment of Sentence January 16, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0004005-2012


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED JANUARY 29, 2016

        Appellant, Chad Everett Wandel, appeals from the judgment of

sentence entered January 16, 2014, in the Court of Common Pleas of

Luzerne County, following his conviction of Driving Under the Influence of

Alcohol, Minors – 1st Offense.1 We affirm.

        A panel of this Court previously described the history of this case as

follows.

              On April 21, 2011, shortly after midnight, Sergeant
        Damian Hoover (“Sergeant Hoover”) of the Lehman Township
        Police Department responded to a motor vehicle crash on State
        Route 118 near Pike’s Creek Park involving a silver Audi and a
        motorcycle. By the time Sergeant Hoover arrived at the scene,
        paramedics had transported the driver of the motorcycle to the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802(e).
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     local hospital and Wandel, the driver of the silver Audi, had fled
     the scene of the crash. However, while Sergeant Hoover was
     investigating the crash, Wandel’s father returned Wandel to the
     scene. While Sergeant Hoover questioned Wandel, who was 18-
     years-old on the night in question, he noticed an odor of alcohol
     on Wandel’s person and breath. Sergeant Hoover placed Wandel
     under arrest and transported him to Wilkes-Barre General
     Hospital for a blood alcohol concentration (“BAC”) test. The test
     revealed that Wandel’s BAC was .047 percent.

            On November 25, 2013, following a bench trial, the trial
     court found Wandel guilty of DUI – minors. On January 6, 2014,
     the trial court sentenced Wandel to seven days to six months of
     house arrest. Additionally, the trial court also fined Wandel
     $500.00, required him to enroll in an alcohol highway safety
     program, undergo evaluation for drug and alcohol treatment,
     and pay $307.00 to Wilkes-Barre General Hospital in restitution
     for his BAC test. Wandel also received a PENNDOT imposed
     driver’s license suspension. That same day, Wandel filed post-
     sentence motions. On January 14, 2014, the trial court denied
     Wandel’s post-sentence motions.

Commonwealth v. Wandel, 106 A.3d 155 at *1-2 (Pa. Super.              2014)

(memorandum opinion).

     On appeal, Wandel challenged the sufficiency of the evidence to

support his convictions, arguing that the Commonwealth failed to present

evidence that the BAC result was reliable and accurate.     See id. at 2-3.

Finding that this argument incorrectly presented a weight of the evidence

argument, rather than a challenge to the sufficiency of the evidence, the

panel rejected Wandel’s claim and affirmed the judgment of sentence. See

id. at 7-8. Subsequent thereto, the trial court granted Wandel permission to

file a nunc pro tunc post-sentence motion challenging the weight of the

evidence.   Wandel filed a post-sentence motion raising a weight of the




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evidence claim on January 15, 2015. The trial court denied Wandel’s motion

on February 25, 2015. This timely appeal followed.

        Wandel phrases the issue raised on appeal as follows.

        A blood test’s reliability.       For DUI-minor, blood-alcohol
        content may not be 0.02% or higher within two hours after the
        minor has driven. Here, the Commonwealth presented sufficient
        evidence     for   Wandel’s   blood-alcohol     result.      The
        Commonwealth’s evidence, however, demonstrates the approved
        laboratory    blood-testing  machine’s    calibration   produces
        unreliable and inaccurate results at low alcohol concentrations.
        Therefore, did the lower court abuse its discretion in finding
        Wandel’s alcohol concentration was .02% or higher with-in two
        hours of driving?

Appellant’s Brief at 4.

        Wandel concedes that the evidence was sufficient to support his

conviction of DUI-Minors.2         He argues, however, that the BAC result is

inaccurate and unreliable because, according to his expert’s opinion, the

laboratory at the Wilkes-Barre General Hospital incorrectly calibrates the gas

chromatograph instrument used to measure his BAC. See Appellant’s Brief

at 12-25.
____________________________________________


2
    Section 3802(e) of the Vehicle Code states that

        [a] minor 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 minor’s
        blood or breath is 0.02% or higher within two hours after the
        minor has driven, operated or been in actual physical control of
        the movement of the vehicle.

75 Pa.C.S.A. § 3802(e).



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      We disagree with Wandel’s argument.                  As this Court noted when

Wandel raised a similar, if not identical argument on his prior direct appeal,

Wandel essentially asks us to “afford more weight to the testimony of his

expert witness over that of the Commonwealth’s expert, the medical

technologist who ran Wandel’s BAC test.”             Wandel, 106 A.3d 155 at *7.

This we cannot do.

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review. Moreover, where the trial court
      has ruled on the weight claim below, an appellate court’s role is
      not to consider the underlying question of whether the verdict is
      against the weight of the evidence. Rather, appellate review is
      limited to whether the trial court palpably abused its discretion in
      ruling on the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

      Initially, it is uncontested that Wilkes-Barre General Hospital is

licensed and approved by the Pennsylvania Department of Health to conduct

BAC testing.    See N.T., Trial, 11/25/13 at 112-113.            Thus, there exists a

rebuttable    presumption       that   the    BAC   test   results   are   valid.    See

Commonwealth v. Renninger, 682 A.2d 356, 359 (Pa. Super. 1996)

(judicial   notice   of   the   laboratory’s    certification   created    a   rebuttable

presumption of validity).

      At trial, Wilkes-Barre General Hospital medical technologist Susan

Androckitis testified that she ran a calibration and control sample in the gas

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J-A31028-15



chromatograph machine prior to testing Wandel’s blood sample and that the

machine she utilized to test Wandel’s BAC on April 23, 2011, was properly

calibrated in accordance with the procedures established by the College of

American Pathologists.     See N.T., Trial, 11/25/13 at 117-120.          Ms.

Androckitis certified that “[a]ll the samples I have reviewed before court

here today have been – have been acceptable and correct.” Id. at 125.

     “[T]he finder of fact was free to believe the testimony of certain of the

Commonwealth's witnesses and to disbelieve the testimony of another.”

Gibbs, 981 A.2d at 282 (citation omitted). This Court cannot substitute its

judgment for that of the trier of fact. See id. Here, the trial court credited

the testimony of the medical technologist with 28 years of experience who

ran Wandel’s BAC test and conducted the calibration testing on the gas

chromatograph machine rather than that of Wandel’s expert, who reviewed

the analytical data for the BAC test.     See Trial Court Opinion, 2/24/15

(incorporating by reference the Opinion dated 3/18/14 at 6-7).        As Ms.

Androckitis testified that the machine was properly calibrated and she had

extensive experience using the machine, the court was free to accept her

testimony.   We therefore find no abuse of discretion in the denial of the

weight of the evidence claim.

     .




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J-A31028-15



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




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