J-S33011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

OTTO A. BROWN,

                            Appellant                No. 1264 MDA 2016


         Appeal from the Judgment of Sentence Entered April 13, 2016
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0001548-2015


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 16, 2017

        Appellant, Otto A. Brown, appeals from the judgment of sentence

imposed after a jury convicted him of one count of driving under the

influence of alcohol (DUI), pursuant to the ‘general impairment’ provision set

forth in 75 Pa.C.S. § 3802(a)(1). Appellant challenges the sufficiency of the

evidence to sustain his conviction, and he also argues that he is entitled to a

new trial due to prosecutorial misconduct. After careful review, we reverse

Appellant’s judgment of sentence and order him discharged.

        Briefly, Appellant was arrested and charged with DUI on November 29,

2014, following a traffic stop of his vehicle. He proceeded to a jury trial on

February 10, 2016, and, at the close thereof, the jury convicted him of the
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*
    Retired Senior Judge assigned to the Superior Court.
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DUI charge. Appellant was subsequently sentenced on April 13, 2016, to a

term of 1 to 4 years’ incarceration, which included a mandatory minimum

sentence under 75 Pa.C.S. § 3804(c)(3), based on Appellant’s failure to

submit to chemical blood testing.

       On April 22, 2016, Appellant filed a timely post-sentence motion

challenging the weight of the evidence to support the jury’s verdict.      The

court scheduled oral argument on Appellant’s post-sentence motion for July

15, 2016. However, on July 1, 2016, Appellant filed a supplemental post-

sentence motion, adding a claim that his mandatory sentence under section

3804(c)(3) is illegal in light of the United States Supreme Court’s decision in

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (holding that a state

may not criminalize a motorist’s refusal to comply with a demand to submit

to blood testing). On July 19, 2016, the trial court issued an order denying

Appellant’s weight-of-the-evidence claim, but granting his challenge to the

legality of his sentence under Birchfield.          The court scheduled a

resentencing hearing for August 31, 2016.

       However, before the resentencing hearing, Appellant filed a timely

notice of appeal with this Court on July 26, 2016.1      Thereafter, the court
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1
  Nevertheless, the trial court resentenced Appellant on August 31, 2016, to
a term of incarceration of 6 to 23 months’ incarceration. In light of our
disposition herein, we need not assess whether the trial court had the
inherent authority to correct Appellant’s illegal sentence, even though he
had previously filed a notice of appeal. See Commonwealth v. Holmes,
933 A.2d 57, 65 (Pa. 2007) (concluding that, while a trial court typically
(Footnote Continued Next Page)


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

complained of on appeal, and he timely complied.            Herein, Appellant

presents two issues for our review:

      1. Was the evidence at trial insufficient to prove beyond a
      reasonable doubt that [] Appellant was guilty of [DUI] where the
      Commonwealth failed to prove that Appellant was incapable of
      safe driving?

      2. Whether the trial court erred in denying Appellant’s motion
      for a mistrial where the [Commonwealth’s] statements in closing
      were inflammatory and included argument about facts not in
      evidence[,] creating an unavoidable effect of prejudice to the
      jurors by forming in their minds a fixed bias and hostility to
      [Appellant], thus impeding their ability to weigh the evidence
      objectively and render a true verdict?

Appellant’s Brief at 6 (emphasis and unnecessary capitalization omitted).

      To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
                       _______________________
(Footnote Continued)

loses jurisdiction to correct a sentencing order after a notice of appeal has
been filed, the court retains “the inherent power … to correct obvious and
patent mistakes in its orders, judgments and decrees”).



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      In this case, Appellant challenges the sufficiency of the evidence to

sustain his conviction of DUI, general impairment, which is defined as

follows:

      (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). Additionally, our Court has explained that,

      [i]n order to prove a violation of this section, the Commonwealth
      must show: (1) that the defendant was the operator of a motor
      vehicle and (2) that while operating the vehicle, the defendant
      was under the influence of alcohol to such a degree as to render
      him or her incapable of safe driving. To establish the second
      element, it must be shown that alcohol has substantially
      impaired the normal mental and physical faculties required to
      safely operate the vehicle. Substantial impairment, in this
      context, means a diminution or enfeeblement in the ability to
      exercise judgment, to deliberate or to react prudently to
      changing circumstances and conditions. Evidence that the driver
      was not in control of himself, such as failing to pass a field
      sobriety test, may establish that the driver was under the
      influence of alcohol to a degree which rendered him incapable of
      safe driving, notwithstanding the absence of evidence of erratic
      or unsafe driving.

Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003) (quoting

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000) (citations

and footnote omitted)).

      At Appellant’s trial, the Commonwealth presented the testimony of one

witness, Lower Swatara Township Police Officer Patrick Ribec. Officer Ribec



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testified that on November 29, 2014, he “was on the 11:00 p.m. to 7:00

a.m. shift” and was patrolling in a marked police car. N.T. Trial, 2/10/16, at

36, 40.     At approximately 2:20 a.m., Officer Ribec “noticed a blue Honda

Civic[,]” which was driven by Appellant.         Id. at 41, 45-46.     Appellant’s

vehicle attracted the officer’s attention because Appellant had “merge[d]

onto the on-ramp to I-283” at the “last second possible[,]” and had “also

failed to signal….” Id. at 41. Officer Ribec began following Appellant’s car,

and observed him fail to signal again when he merged onto I-283. Id. at

44. The officer also “paced [the vehicle as] going ten miles under the speed

limit….”    Id.   Based on these traffic violations, the officer decided to stop

Appellant’s vehicle. Id. Officer Ribec testified that at the time he initiated

the stop of Appellant’s vehicle, he had no “opinion as to [Appellant’s]

condition[,]” but stopped him solely for the traffic violations. Id. at 45.

         Officer Ribec testified that Appellant pulled his vehicle “over in a safe

and timely manner.” Id. When the officer approached the car, he saw that

there was a female passenger, but he did not “observe her condition as far

as whether she was impaired or not” because it “was a basic, simple traffic

stop.”     Id. at 46.    The officer testified that Appellant was cooperative,

coherent, and explained to the officer that he failed to signal “because his

passenger gave him … last-minute directions[.]”         Id. at 86.   Officer Ribec

asked for Appellant’s information, and Appellant had no trouble locating the

documents, and he did not fumble with them when handing them to the

officer. Id. at 87. The officer also testified that Appellant’s speech was not

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slurred. Id. However, Officer Ribec did “smell an odor commonly associated

with an alcoholic beverage.”   Id. at 47.   Accordingly, Officer Ribec asked

Appellant if he had been drinking, and Appellant told the officer he “had just

one beer.” Id. at 48. The officer then asked Appellant to submit to field

sobriety tests, and Appellant agreed. Id. at 48. When Appellant exited the

vehicle, the officer was able to determine that the smell of alcohol was

“coming from the vehicle[,]” rather than Appellant’s person, yet the officer

still did not speak to the passenger to determine if she was intoxicated. Id.

at 87-88.

     Officer Ribec instructed Appellant to walk to the back of the vehicle for

the field sobriety tests. Id. at 48. The officer noted that, “on his way back

from his vehicle, [Appellant] did sway, and he was unsteady on his feet.”

Id. at 50.    The officer first conducted “the walk and turn” test, and he

explained Appellant’s performance on that test as follows:

     [Officer Ribec]: … While in the instructional position, he got out
     of the instructional position. He lost his balance and then
     remained standing with his feet together for the remainder of my
     demonstration. Once he started the test -- his 9 heel-to-toe
     steps forward -- he ended up taking 12 steps. He missed heel to
     toe on every step, except number 3, and that was his first 9
     heel-to-toe steps. That’s what I observed.

     …

     [Appellant’s performance] wasn't good.

     …

     [Appellant then] turned around incorrectly.         When I
     demonstrated, I kept my front foot on the ground and took a
     series of small steps and went backwards. He used both feet to


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      turn around, which is incorrect. After turning around, he was to
      take nine steps heel to toe back in a straight line. He walked
      toward me and stopped. And I asked him why he did this, and
      he said because he was done with the test. And my instructions
      were clear, nine steps forward, turn around, nine steps back.

Id. at 56, 57-58.

      Officer Ribec also testified that for the walk and turn test, the “general

rule” is that if there are three or more “clues” of intoxication during the test,

the person is “possibly impaired.”       Id. at 90.    In this case, Appellant

“showed five” clues. Id. at 90. However, the officer testified that even after

Appellant’s poor performance on this first test, he had not “exactly” formed

an opinion regarding Appellant’s condition, although he “had an idea where

this was leading.” Id. at 58.

      Officer Ribec next asked Appellant to perform the one-legged stand.

During that test, Appellant swayed while standing on one foot, which the

officer testified was one of “four clues” indicating intoxication.    Id. at 60.

Appellant also put his foot down after ten counts, and then “just started to

stare” at the officer, despite being previously instructed “to continue

counting until [the officer] told [him he] was done.”        Id.   Officer Ribec

testified that there are “four possible clues” of intoxication in the one-legged

stand test, and that Appellant “showed two.” Id. at 91.

      From all these facts and observations, Officer Ribec “had a suspicion

that [Appellant] was driving under the influence of alcohol.”        Id. at 61.

Accordingly, the officer placed Appellant under arrest and “transported him

to the Dauphin County Judicial Center for a blood draw.” Id. at 59. While


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Appellant initially consented to that blood draw, after the nurse at the

judicial center twice could not find a vein in Appellant’s arm, he refused to

allow further attempts to draw his blood. Id. at 65-66, 67.

       Appellant contends that this evidence failed to prove, beyond a

reasonable doubt, that he was incapable of safely operating his vehicle. We

must agree.      Officer Ribec did not observe Appellant’s driving erratically. 2

We recognize that “[e]vidence of erratic driving is not a necessary precursor

to a finding of guilt under the relevant statute.”             Commonwealth v.

Mobley,     14    A.3d    887,    890     (Pa.   Super.   2011).    Rather,   “[t]he

Commonwealth may prove that a person is incapable of driving through the

failure of a field sobriety test.”       Id. (citations omitted).   In Mobley, we

found the evidence sufficient to prove Mobley was incapable of safely driving

his vehicle, even though he was not driving erratically before being stopped

by police, where Mobley failed four field sobriety tests, was disoriented,

exhibited slow speech, and refused to submit to a chemical blood test. Id.

at 889.    Additionally, an odor of alcohol permeated from Mobley’s person

when he exited his vehicle. Id.

       Likewise, we found the evidence presented in Smith sufficient to

sustain a conviction of DUI, general impairment. There, the officer observed

Smith’s driving erratically, drifting her vehicle into the oncoming lane of

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2
  Indeed, the officer noted that Appellant was committing the inherently
safer act of driving slower than the posted speed limit.



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travel and leaving a large portion of her vehicle protruding into the roadway

when she pulled over.     Smith, 831 A.2d at 637.     The officer also noticed

that Smith’s eyes were glassy and blood shot, she emanated a strong odor

of alcohol, and she “stumbled and staggered numerous times” when she

exited the vehicle. Id. Additionally, Smith admitted she had been drinking

beer earlier that evening, she failed three field sobriety tests, and she

refused chemical blood testing. Id.

      In contrast to the driver’s in Mobley and Smith, here, Officer Ribec

testified that Appellant was coherent, his speech was not slurred, he did not

fumble with his documents, and the officer determined the odor of alcohol

he smelled was coming from the car, not from Appellant’s person. Appellant

also consented to a blood draw, only refusing after a nurse twice failed to

locate a vein from which to obtain the blood sample.       Additionally, while

Appellant admitted that he drank one beer that evening, there was no

evidence regarding when he had consumed that beverage.

      Appellant also consented to field sobriety tests, and only two were

conducted. While Officer Ribec explained that he observed several ‘clues’ of

‘possible intoxication’ during Appellant’s performance, he never testified that

Appellant failed the tests, nor explained what type of performance would

qualify as a failure.   Indeed, in regard to the heel-to-toe test (on which

Appellant’s performance was arguably the worst), Officer Ribec stated only

that Appellant’s performance “wasn’t good.” N.T. Trial at 56. Additionally,

the officer admitted that he was not able to fully form an opinion regarding

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Appellant’s ‘condition’ based on that first test. Id. at 58. Thus, the officer

conducted a second test, on which Appellant showed two out of four clues of

possible impairment.      Officer Ribec never clarified if showing two clues

constituted a failure of that test.

      Officer Ribec also never testified that Appellant’s overall performance

on the field sobriety tests led him to conclude that Appellant was incapable

of safely driving a vehicle; rather, the officer stated only that he “had a

suspicion that [Appellant] was driving under the influence of alcohol.” Id. at

61.   Later, the officer testified that from his observations of Appellant, he

“believe[d that Appellant] was above the legal limit.”      N.T. Trial at 95.

However, Appellant was not charged under the ‘legal limit’ portion of the DUI

statute, i.e., 75 Pa.C.S. § 3802(a)(2); he was charged under the general

impairment provision of section 3802, which requires evidence that

Appellant was impaired to the point that he could not safely operate his car.

From the evidence presented at trial, we simply cannot conclude that the

Commonwealth established this element beyond a reasonable doubt.

Accordingly, we reverse Appellant’s conviction and order that he be

discharged immediately.

      In light of this disposition we need not address Appellant’s argument

that he is entitled to a new trial on the basis of prosecutorial misconduct.

However, we are compelled to note (for the trial court and prosecutor in this

case) that we would grant Appellant a new trial on that issue, if we were not

already reversing on sufficiency grounds. Briefly, the prosecutor referred to

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Officer Ribec as a “hero” in his opening statement, and then in closing, the

prosecutor declared: “I told you at the beginning of the trial that this man

[Officer Ribec] was a hero because of what he prevented. I don’t know what

would have happened if he had not stopped [Appellant].            I don’t know.”

N.T. Trial at 100. Defense counsel immediately objected and moved for a

mistrial on the basis that the prosecutor had improperly suggested “that had

[Appellant] not been pulled over, he would have killed somebody.”          Id. at

102.    Defense counsel argued that the prosecutor’s statement was not

supported by the evidence, and that it was extremely prejudicial, because

“[t]here was no testimony that anyone else was on the road. There was no

testimony that [Appellant] was driving erratically. There’s no testimony that

backs up what he was saying. And it goes beyond argument.” Id. at 103.

Ultimately, the trial court denied defense counsel’s motion for a mistrial, but

it provided a curative instruction directing the jury to disregard the

prosecutor’s at-issue comments.

       While we do not definitively decide this issue in light of our disposition,

supra, it appears to this Court that a curative instruction could not have

cured the significant prejudice caused to Appellant by the prosecutor’s

intemperate remarks. Casting Officer Ribec as a hero in this case - where

the officer merely conducted a traffic stop of a completely compliant

individual - was clearly an overstatement; but, to add the suggestion that

Appellant would have hurt or killed someone (or himself) if not for the

officer’s pulling him over crossed the line into prosecutorial misconduct.

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Such comments could only form in the juror’s “minds [a] fixed bias and

hostility towards [Appellant] so as to hinder an objective weighing of the

evidence and impede the rendering of a true verdict.” Commonwealth v.

Chmiel, 777 A.2d 459, 464 (Pa. Super. 2001) (citations omitted).

Moreover, we would disagree with the Commonwealth that the curative

instruction cured the prejudice suffered by Appellant. Therefore, we would

grant Appellant a new trial on this issue, if we were not already reversing his

conviction on sufficiency grounds.

      Judgment of sentence reversed.          Appellant discharged immediately.

Jurisdiction relinquished.

      Judge Ott joins this memorandum.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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