J-S41013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ZACHARY ALAN BAYLER,

                            Appellant                 No. 3173 EDA 2015


            Appeal from the Judgment of Sentence October 20, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001325-2015


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JULY 14, 2016

        Appellant, Zachary Alan Bayler, appeals from the judgment of

sentence of three to six months’ incarceration, imposed after he was

convicted of driving under the influence (DUI) - general impairment, 75

Pa.C.S. § 3802(a)(1), and speeding, 75 Pa.C.S. § 3361(a)(3).        Appellant

challenges the sufficiency of the evidence to support his DUI conviction.

After careful review, we affirm.

        Appellant was charged with the above-stated offenses and proceeded

to a non-jury trial on July 20, 2015. There, Officer Andrew Adams of the

Plymouth Township Police Department testified that he was conducting

routine patrol when he observed Appellant’s silver Mercedes traveling “much

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*
    Former Justice specially assigned to the Superior Court.
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faster if not double the posted speed limit.” N.T. Trial, 7/20/15, at 4, 5-6.

Officer Adams immediately activated his lights and siren and began following

Appellant’s car.   Id. at 7.     As the officer pursued Appellant’s car for

approximately one-half mile, he observed Appellant “swerve[] two times

from the direct travel lane into the turning lane.”        Id. at 8, 9.    Once

Appellant stopped his vehicle and Officer Adams made contact with him, the

officer noticed Appellant “had red glassy eyes” and “an odor of alcoholic

beverage coming from what appeared to be his person.” Id. at 6, 7. Officer

Adams further testified that Appellant “had severely slurred speech.” Id. at

7.

      Officer Andrew Monaghan of the Plymouth Township Police Department

also testified at trial, stating that he responded to Officer Adams’ traffic stop

of Appellant’s vehicle. Id. at 15. Officer Monaghan, who has training in the

detection of impaired drivers, explained that when he came into contact with

Appellant, he noticed an odor of alcohol emanating from Appellant’s person,

and observed that Appellant’s eyes were glassy and bloodshot.         Id. at 15,

17. The officer also noticed that Appellant was “slurring his speech.” Id. at

17.   Officer Monaghan asked Appellant if he had been drinking, and

Appellant admitted that “he had [consumed] two beers.” Id.

      The officer further testified that he conducted three field sobriety tests

with Appellant, including “the fingertip to the tip of [the] nose[,]” the “nine

steps heel to toe[,]” and “the one leg stand” tests. Id. at 17-18. During the

“finger to nose test,” Officer Monaghan observed that Appellant “was

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swaying and he was having a hard time maintaining his balance.” Id. at 18.

Officer Monaghan also testified that during the next “heel to toe contact”

test, Appellant “failed to make heel to toe contact and also … took ten steps

out, nine steps back and the entire time he did not count his steps.” Id. at

18. Finally, the officer asked Appellant to perform the “one legged stand”

test.   Officer Monaghan described Appellant’s performance on this test, as

follows:

        [Officer Monaghan]: On that night [Appellant] raised his … right
        foot off the ground first. He was able to hold his foot off the
        ground for approximately three to four seconds before placing it
        down. He then tried the test again. He raised it up, again, once
        again he maintained about three to four seconds before placing
        it on the ground. At which point he then advised me that he had
        broken his left ankle at some point and I advised him that he
        could then lift his left leg off the ground and stand on his right
        leg. At which point he advised me again that he had broke [sic]
        his left leg and he refused to continue with the test.

Id. at 19.    Based on Appellant’s performance on these three field sobriety

tests, and considering “the smell of alcohol, the glassy bloodshot eyes, [and]

the slurred speech,” Officer Monaghan concluded that Appellant was

committing the offense of DUI. Thus, Appellant was arrested and taken to

the police department. Id.

        Once there, Appellant was asked to submit to a certified breath test.

Id. at 20.     In response, Appellant asked to speak to an attorney.         Id.

Officer Monaghan informed Appellant “that he has no right to speak to an

attorney or ask to talk to anyone else[,]” but Appellant again asked to talk




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to an attorney. Id. The officer then asked Appellant if he was refusing the

test, and Appellant responded, “yes.” Id. at 21.

       Based on this evidence, the trial court convicted Appellant of DUI and

speeding.1    On October 20, 2015, the court sentenced him to three to six

months’ imprisonment, as well as to fines and court costs.2 Appellant filed a

timely notice of appeal, and also timely complied with the trial court’s order

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Herein, he presents one issue for our review:

             Whether Appellant’s conviction of [DUI-]Incapable of
       Safely Driving must be reversed where the record indicates that
       the trial judge, sitting as fact finder, concluded that under the
       law, a fact finder had no choice but to find Appellant guilty of
       [DUI] because Appellant refused to submit to blood alcohol
       testing, where there was otherwise insufficient evidence for the
       judge to make a determination as to whether or not Appellant
       was impaired beyond a reasonable doubt?

Appellant’s Brief at 5.

       Preliminarily, we note that,

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1
  We note that in rendering its verdict, the trial court stated that it was
“totally disregard[ing]” the evidence about field sobriety tests performed on
Appellant, as Appellant testified at trial that he had a medical condition that
impacted his ability to perform those tests. See N.T. Trial at 45-46, 48
(Appellant’s testifying regarding his medical condition); Id. at 59-60 (court’s
explaining it would not consider the evidence regarding the field sobriety
tests).
2
  Appellant’s sentence of incarceration stemmed from the fact that this was
his second DUI offense, and he refused to take a breathalyzer test. See 75
Pa.C.S. § 3804(c)(2)(i) (setting forth a minimum sentence of 90 days under
such circumstances).



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            [a]s a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record “in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.”
      “Evidence will be deemed sufficient to support the verdict when
      it establishes each material element of the crime charged and
      the commission thereof by the accused, beyond a reasonable
      doubt.” Nevertheless, “the Commonwealth need not establish
      guilt to a mathematical certainty.” Any doubt about the
      defendant's guilt is to be resolved by the fact finder unless the
      evidence is so weak and inconclusive that, as a matter of law, no
      probability of fact can be drawn from the combined
      circumstances.

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, “[t]he fact that the
      evidence establishing a defendant's participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence.” Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant's crimes beyond a reasonable doubt,
      the appellant's convictions will be upheld.

Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013)

(internal citations omitted).

      Here, Appellant challenges his conviction for DUI under section

3802(a)(1), which states:
      (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). This Court has also explained:



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     “[S]ubsection 3802(a)(1) 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 v. Segida, 604 Pa.
     103, 114–116, 985 A.2d 871, 879 (Pa.2009). With respect to the
     type, quantum, and quality of evidence required to prove a
     general impairment violation under Section 3802(a)(1), the
     Pennsylvania Supreme Court in Segida continued:

       Section 3802(a)(1), 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)(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. 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)(1) 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)(1)
       remains on the inability of the individual to drive safely
       due to consumption of alcohol-not on a particular blood
       alcohol level.

     Id. at 115–116, 985 A.2d at 879.

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013).




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      In challenging the sufficiency of the evidence in the present case,

Appellant essentially attacks the basis upon which the court allegedly

premised its verdict. Specifically, he avers that,

      [t]he trial judge found [him] guilty based upon an error of law
      under which the court believed it had no[] choice but to adjudge
      Appellant guilty due to his failure to submit to [breathalyzer]
      testing. While the trial judge concluded that Appellant’s blood
      shot eyes, slurred speech and smell of alcohol gave probable
      cause to arrest [Appellant], [the court] acknowledged that other
      than the foregoing indicia of impairment, there was no evidence
      to permit the court to make any further determination as to
      whether Appellant was impaired. In this regard the trial judge
      indicated that while she could conclude that the indicia of
      impairment established probable cause, she could not conclude
      based upon the evidence presented that Appellant was impaired
      beyond a reasonable doubt as to find Appellant guilty of [DUI-]
      Incapable of Safely Driving.

            On the contrary, the trial judge’s finding of guilt was
      predicated on her mistaken belief that a fact[-]finder had no
      choice but to find Appellant guilty because he refused to submit
      to blood or breath testing when police had probable cause to
      arrest [Appellant] for driving under the influence. The judge’s
      legal error in this regard is no different than if the judge sitting
      with a jury instructed the jury that they must find [Appellant]
      guilty if the police had probable cause to arrest him for [DUI]
      and if they concluded that Appellant refused Blood Alcohol
      Testing.     Such a standard of law contravenes the well-
      established burden of proof in a criminal trial and the provisions
      of 75 Pa.C.S. § 1547(e) which prohibit presumptions based
      upon an accused’s refusal of testing.

Appellant’s Brief at 16-17.

      Initially, Appellant’s comparison of his case to a court’s providing a

jury with a legally incorrect instruction is unavailing. We are not reviewing

the propriety of the court’s jury instructions; instead, we are evaluating the

sufficiency of the evidence to sustain Appellant’s conviction. Our standard of

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review of a sufficiency claim does not include an assessment of the reasons

for the fact-finder’s verdict, which is precisely what Appellant is asking us to

do in this case.3      Rather, it is well-settled that in reviewing a sufficiency
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3
  In any event, we note that Appellant’s interpretation of the court’s
reasoning is questionable. In rendering its verdict, the court stated, in
pertinent part:

       [The Court:] [T]his Court has heard overwhelming evidence,
       consistent evidence, that there was slurred speech, red, glassy,
       bloodshot eyes, an odor of alcohol about the person that would
       give or justifiably or even reasonably give an officer reasonable
       suspicion or cause to make an arrest in this matter.

       …

             So today I have heard convincing evidence … that there
       was probable cause for an arrest in this matter, but I don’t have
       anything other than the indicia of impairment to tell me whether
       or not [Appellant] was intoxicated or impaired, and that’s
       because [Appellant] refused [testing]. So there is a statute for
       that and in that case this statute is captured under Count 1 of
       the criminal charge in this matter, which is 1325 of 2015. On
       that Bill of Information it states 3804(c) where [Appellant]
       refused testing of the blood, and in this case that happened, so I
       have to find you guilty of that because it happened. I haven’t
       heard anything where it didn’t happen, and I heard credible
       testimony and evidence that you did refuse the request for
       blood.

             So I find you guilty, [Appellant], of Count 1 [DUI] based
       on the evidence that was presented before me.

N.T. Trial, 7/20/15, at 60-61.

      The court’s statement, read as a whole, is rather confusing. Again,
Appellant interprets the court’s remarks as indicating that the court believed
it must convict him of DUI simply because he refused the breathalyzer test.
However, an equally reasonable interpretation of the court’s statement,
especially considering the court’s reference to 75 Pa.C.S. § 3804(c)
(Footnote Continued Next Page)


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claim, we are required to evaluate the record, in the light most favorable to

the verdict winner, and to determine if the evidence proved each material

element of the crime charged beyond a reasonable doubt. See Teems, 74

A.3d at 145.     Having done so in this case, we easily conclude that the

evidence was sufficient to convict Appellant of DUI under section 3802(a)(1).

      Namely, the testimony of Officer Adams established that Appellant’s

vehicle was speeding, and Appellant twice swerved into the turning lane

while the officer was following him.             Both Officers Adams and Monaghan

noticed a smell of alcohol on Appellant’s person, and observed that his eyes

were glassy, red, and bloodshot, and he was slurring his speech. Appellant

also admitted that he was drinking that evening.            He then failed two field



                       _______________________
(Footnote Continued)

(discussing the penalties where the defendant refused testing of blood or
breath), is that the court was explaining why it must conclude that Appellant
refused chemical testing, thus triggering the penalty provisions set forth in
section 3804(c).      The court’s discussion, in its Rule 1925(a) opinion,
regarding why it found the evidence sufficient to convict Appellant of DUI,
supports our interpretation, rather than Appellant’s. See Trial Court Opinion
(TCO), 12/12/15, at 4 (discussing the totality of evidence that proved
Appellant committed DUI, including the officers’ testimony regarding
Appellant’s driving, his physical appearance and smell, his admission to
drinking, and his refusal to submit to a breathalyzer). Moreover, the court
was permitted to consider Appellant’s refusal to submit to a breathalyzer as
evidence of his guilt. See 75 Pa.C.S. § 1547(e) (permitting the defendant’s
failure to submit to chemical testing to be admitted as evidence where the
defendant is charged with a violation of section 3802, and stating that such
evidence “may be considered along with other factors concerning the
charge”).




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sobriety tests, and essentially refused to participate in a third.4 Based on his

performance on those tests, and Officer Monaghan’s observations of

Appellant’s physical appearance, his slurred speech, and the odor of alcohol

emanating from his person, the officer concluded that Appellant was DUI.

After Appellant was arrested, he refused to take a breathalyzer test to

establish his level of intoxication.               This evidence was sufficient to

demonstrate that Appellant was driving a vehicle when he was incapable of

safely doing so due to the consumption of alcohol. See Commonwealth v.

Hartle, 894 A.2d 800, 804 (Pa. Super. 2006) (finding sufficient evidence to

sustain Hartle’s conviction of DUI (general impairment) where an officer

testified that Hartle’s breath smelled of alcohol, his eyes were bloodshot and

glassy, he kept repeating himself, he refused to participate in field sobriety

tests or take a breath test, and he swayed when standing outside his

vehicle).

       Judgment of sentence affirmed.




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4
  The trial court’s decision to “totally disregard the field sobriety tests” was
essentially an assignment of weight (or lack thereof) to that evidence.
However, in reviewing a sufficiency claim, we consider “all the evidence
admitted at trial….” Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa.
2008) (citations omitted; emphasis added).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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