J-S57019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellee              :
                                           :
               v.                          :
                                           :
 BILAL SMITH                               :
                                           :
                    Appellant              :       No. 969 EDA 2018


          Appeal from the Judgment of Sentence February 20, 2018
             in the Court of Common Pleas of Delaware County
             Criminal Division at No.: CP-23-CR-0005874-2017


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

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 04, 2018

      Appellant, Bilal Smith, appeals from the judgment of sentence following

his bench trial conviction for driving under the influence (DUI)-general

impairment. Appellant purports to challenge the sufficiency of the evidence.

We affirm.

      In its opinion, the trial court correctly sets forth the relevant facts and

procedural history of this case:

      On November 23, 2016, Officer Joseph Paul Dougherty, Jr., a K-9
      Officer with the Chester City Police Department was on night time
      rotation, working the 8:00 PM to 4:00 AM shift. Officer Dougherty
      testified that at 10:51 PM he was dispatched by DELCOM
      [Delaware County Law Enforcement Dispatch] to the 1100 block
      of Concord Road for a report of motor vehicle accident between a
      car and a utility pole with the description of the person being black
      male in dark clothing.

      Officer Dougherty arrived within seconds of receiving the
      dispatched call. Officer Dougherty candidly testified that the

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S57019-18


     accident did not occur in his beat and if there was to be an
     investigation it would have been Officer [Gary] Richardson who
     would be the Officer in charge. Additionally, Officer Dougherty
     testified that Chester Housing Authority provides assistance to
     Chester City Police Officers.

     Upon arriving at the accident scene, Officer Dougherty observed
     the front end of a Buick Le Sabre resting on the utility pole, the
     Officer observed that the Buick Le Sabre had heavy front end
     damage, with at least one air bag deployed and the utility pole
     was spilt and broken. It appeared to Officer Dougherty as if the
     occupant of the Buick Le Sabre had hit the windshield.

     Upon arrival at the accident scene, Officer Dougherty observed
     Appellant standing within 10 to 15 feet of the Buick Le Sabre.
     Officer Dougherty observed that Appellant’s clothing was covered
     in what appeared to be dust/powder; the Officer testified that the
     dust/powder has a similar appearance to dry wall dust or concrete.
     Officer Dougherty explained that upon arrival he exited his vehicle
     and asked Appellant, "what happened?" and "were you in the car?"
     Appellant informed the Officer that he had not been in the vehicle
     and he did not know what had happened to the Buick Le Sabre.
     Appellant then started walking west on Concord Road towards the
     Ruth L. Bennett Homes. At the same time that Appellant was
     leaving the area of the accident, a resident of the house near the
     scene exited the house and engaged in a conversation with Officer
     Dougherty. During this conversation, Officer Dougherty was
     informed that Appellant was the person in the car at the time of
     the accident. The person told Officer Dougherty that the man who
     was in the vehicle at the time of the accident “just walked that
     way,” which was the same direction that Appellant had walked.
     The person also told Officer Dougherty that Appellant was the only
     one in the vehicle.

     Based upon the conversation with the witness, Officer Dougherty
     radioed for all units to be on the lookout for a subject on foot
     walking westbound on Concord Road towards the Bennett Homes.
     Appellant was stopped by Chester Housing Authority officer,
     Officer [William John] Cooper and Chester City Police officer,
     Officer Richardson. Officer Dougherty testified that on scene, he
     was unable to locate the registration or, insurance information so
     he ran the Buick Le Sabre’s registration and it came back through
     DELCOM as being registered to Appellant and another female.
     Officer Dougherty testified that when DELCOM read off the
     registration as belonging to Appellant, Appellant was stopped by

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     Officers Cooper and Richardson. Officer Dougherty testified that
     the registration for the vehicle was not found in the vehicle;
     rather, he was informed that the registration was recovered from
     the sock area of Appellant’s pants.

     At Trial, the Commonwealth presented a certified copy of the
     PennDOT vehicle transcript for the vehicle in this case a Buick Le
     Sabre with the license plate KFT-1836, which demonstrated that
     the vehicle in question was registered to Appellant and
     Danielle T. Duncan, with an address of 2011 Edgmont Avenue,
     Chester, Pennsylvania. See Commonwealth’s Exhibit, C-1. Officer
     Dougherty testified that address listed on Commonwealth’s
     Exhibit, C-1, was a mile to a mile and a half from the accident
     scene, in the opposite direction in which Appellant was walking.

     Officer Dougherty saw no other persons while he was en route to
     the 1100 block of Concord Road nor did he observe anyone else
     except Appellant once he arrived on location. Officer Dougherty
     remained on scene until after the Buick Le Sabre was towed from
     the location and [Philadelphia Electric Company (PECO)] arrived
     on location. Officer Dougherty had no further involvement in this
     investigation.

     Officer Cooper has been an officer there for eight years and is now
     a full time officer with Chester Housing Authority, as well as having
     been employed by Delaware County Park Police, Upland Borough
     Police, Colwyn Borough Police and East Whiteland Township Police
     in Chester County. On November 23, 2016, Officer Cooper was
     working as a Chester Housing Authority Officer and he testified
     that while working in that capacity Housing Authority Officers
     often monitor the Chester City police, Sector 3, radio
     transmissions and around 10:51 PM he heard a dispatch for a car
     accident at 1100 Concord Road. Officer Cooper was located in the
     Ruth L. Bennett Homes Section of Chester at the time of the
     DELCOM transmission, which is located two and a half to three
     blocks away from the accident location. Officer Cooper testified
     that he had to drive through the Ruth L. Bennett Homes
     development to reach the 1100 block of Concord Road and
     estimated it might have taken him three to four minutes to do so.
     In traveling eastbound to 1100 Concord Road, Officer Cooper did
     not observe anyone who appeared to [be] walking, running or
     staggering from the accident.

     Officer Cooper arrived on location after Officers Dougherty and
     Richardson. Officer Cooper then left with Officer Richardson and


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     headed in the direction that the male had walked. Officers
     Richardson and Cooper came upon an individual in the area known
     as A field, an athletic football field with a track around it. Officers
     Cooper and Richardson stopped this individual as he was the only
     person walking westbound on Concord Road and upon stopping
     this individual Officer Cooper noticed that his upper body was
     covered in a fine dust, that based upon his seventeen years’
     experience as a police officer investigating numerous accidents,
     the Officer identified as air bag dust; this individual was later
     identified as Appellant. Upon approaching Appellant the officers
     were told that Appellant was walking from the car accident.

     Officer Richardson, a patrolman with the Chester City Police
     Department, with nine years’ experience as a Chester City Police
     Officer and as a security guard at Crozier Hospital was working
     the 8:00 PM to 8:00 AM shift on November 23, 2017 and became
     the officer in charge of the investigation of this car accident. Like
     Officers Dougherty and Cooper, Officer Richardson heard the
     DELCOM transmission at 10:51 PM of an accident with a pole in
     the area of the 1100 block of Concord Road. Officer Richardson
     was in the area of 9th and Kerlin in the City of Chester when he
     heard the DELCOM transmission and he arrived on see [sic]
     traveling northwest on Concord Road. While arriving on location,
     Officer Richardson heard another DELCOM transmission
     requesting officers look for a subject walking away from the
     vehicle heading west on Concord Road.

     Officer Richardson saw a man walking in the area of Lamokin and
     Concord and stopped that individual as he was the only person in
     the area at that time. Upon making contact with the pedestrian
     identified as Appellant, Officer Richardson asked if he had been
     driving a vehicle, if he was in a vehicle and if anyone else was in
     the vehicle.    While talking to Appellant, Officer Richardson
     observed that Appellant’s eyes were slightly reddened, that there
     was the smell of alcohol and air bag dust on his person, Officer
     Richardson candidly testified that he did not recall seeing air bag
     powder on Appellant’s person but that the powder does have a
     distinct smell.     Officer Richardson was clear that he had
     investigated several car accidents in his tenure as a police officer
     and was familiar with the smell of air bag powder.

     Upon speaking with Appellant, Officer Richardson noticed that
     Appellant’s manner of speech was slow. After Officer Richardson
     asked Appellant to provide his identification, Appellant staggered
     towards Officer Richardson when handing him the identification.

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       Based upon the observations of Appellant, Officer Richardson
       determined that Appellant was under the influence, Officer
       Richardson did not request that Appellant engage in any field
       sobriety tests. Officer Richardson placed Appellant under arrest
       and as such conducted a pat down incident to arrest. During this
       pat down, Officer Richardson discovered a vehicle registration in
       Appellant’s pant leg, which was tucked down into the bottom of
       the pant leg. The vehicle registration for the Buick Le Sabre was
       the registration on Appellant’s person [which] contained the
       names of a female as well as Appellant and was the registration
       for the vehicle that hit the utility pole on the 1100 block of Concord
       Road. Appellant was then brought to Taylor Hospital[, where his
       blood was drawn, which was measured as having a blood alcohol
       content of 0.184%. N.T. Prelim. Hr’g, 9/26/2017, at 7.1] Officer
       Richardson learned from Officer Dougherty, the officer who was
       the first to arrive on the accident scene and who remained on the
       scene until the vehicle was towed and PECO arrived, that the
       utility pole struck by the vehicle registered to Appellant was split
       upwards.

       Based upon all the information provided to Officer Richardson,
       including the statement of the witness, the observation of Officer
       Dougherty, the observations of Appellant’s demeanor and person,
       . . . and since Appellant had the vehicle’s registration on his
       person, Officer Richardson believed that Appellant was under the
       influence of alcohol that rendered him incapable of safely driving
       and that he had been driving the vehicle that was involved in the
       accident.

       During the [t]rial, Appellant elected to testify in this case.
       Appellant testified that he was in the vehicle on November 23,
       2016; however, he denied that he was operating the motor vehicle
       at the time of the accident. Appellant testified that he initially said
       he was not in the vehicle to protect the driver, who was his friend,
       who[m] he later identified as the brother of his child’s mother.
       Appellant confirmed that the Buick Le Sabre was registered to him
       and to his daughter’s Mother, Danielle Duncan.

       Appellant admitted to being in Harrah’s Casino that night and
       having a few beers and some wine and perhaps some Taylor’s
       Port. Appellant testified that he happened to meet up with an
____________________________________________


1Appellant does not contest the results of his blood test. Appellant’s Brief at
14.

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      individual that he testified was the brother of his child’s mother.
      Appellant testified that he and the person he met at Harrah’s were
      going to the same or similar location. Appellant testified that he
      was not close with the person who was driving, although he is the
      brother of his child’s mother, had known him for almost sixteen
      years and let him drive the car that night. Appellant admitted that
      he was trashed and let the other person drive because he was
      drunk. Appellant also testified that he was unsure of how the
      accident occurred [sic] that he was asleep at the time.

      Appellant confirmed that the air bag did deploy and in fact testified
      that both of the air bags deployed as a result of the accident.
      Appellant confirmed that there was damage to the front of the
      Buick L[e] Sabre, specifically the driver’s side corner of the motor
      vehicle, which was the section that struck the utility pole.
      Appellant claimed to have lost consciousness as a result of the
      accident, exited the vehicle through the passenger side door.
      Appellant claimed that the driver climbed over him and exited the
      passenger door as the driver’s side door was inoperable.

      Contrary to the testimony of the three officers, Appellant testified
      that he did not leave the scene of the accident but in fact remained
      at the scene and was found standing there on the sidewalk.
      Appellant further testified that he spoke with all three officers and
      that at some point they all left him “zooming” west on Concord
      Road looking for the person whose description had been broadcast
      on DELCOM. Appellant testified that while the officers left the
      area, he went to the vehicle, got his belongings from the trunk
      and took his paperwork, including the registration from the vehicle
      and walked westward. Appellant testified that he was not able to
      stuff the paperwork in the book bag because he could not get it
      open so he stuffed it in his pants. Appellant testified that he was
      stopped by the police officers at some point while he was walking
      away from the accident scene, was arrested and was taken to
      Taylor Hospital and during all this time he never identified the
      person whom he says was driving.

Trial Court Opinion, filed May 10, 2018, at 4-10.

      For clarity and completeness, we note that after the preliminary hearing

the Commonwealth amended the charges by the addition of DUI-highest rate,

75 Pa.C.S.A. § 3802(c). Shortly before trial, with the agreement of defense


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counsel, the Commonwealth withdrew the charge of DUI-highest rate,

apparently over concern about problems of proof arising out of the United

States Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct.

2160, 2187 (2016).

        On January 18, 2018, the trial court convicted Appellant of driving under

the influence−general impairment.2 See 75 Pa.C.S.A. § 3802(a)(1).

        On February 20, 2018, Appellant was sentenced by [the trial
        court] . . . to six months intermediate punishment, to be served
        as thirty (30) days in prison followed by thirty (30) days on the
        Electronic Home Monitor (EHM). Appellant was also to pay
        restitution in the amount of $9,188.17 less any insurance
        payments to PECO to be paid before costs. . . . Appellant was
        permitted to report on March 2, 2018 . . .



                                       *       *   *


        Appellant filed a timely appeal [on] March 20, 2018. On March
        22, 2018, th[e trial c]ourt issued an Order requiring Appellant’s
        Counsel of record to submit a Concise Statement of Matters
        Complained of on Appeal within twenty one days. . . . On
        May 7, 2018, a Concise Statement of Matters Complained of on
        Appeal was filed of record[.]
____________________________________________


2   In pertinent part, section 3802 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.A. § 3802(a) (1).


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Id. at 2-3 (footnotes omitted).

        Appellant’s concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) raised two issues:


        1.    The trial court erred in allowing the Commonwealth to
        question [Appellant] on cross-examination about his drinking on
        the night of his arrest. The objection by defense counsel should
        have been sustained because the question relates to facts outside
        of the scope and irrelevant as it relates to his testimony on direct
        examination.

        2.    The trial court erred in finding [Appellant] guilty because the
        Commonwealth failed to produce sufficient evidence for a finding
        that he committed the charged offense beyond a reasonable
        doubt.

Statement of Matters Complained of on Appeal, 5/7/2018, at ¶¶ 1-2.

        In his brief, Appellant now raises only one question for our review, which

we reproduce verbatim:3

        The trial court erred in finding [Appellant] guilty because the
        Commonwealth failed to produce sufficient evidence for a finding
        that he committed the charged offense beyond a reasonable
        doubt.

Appellant’s Brief at 5.4


____________________________________________


3   Accordingly, we deem Appellant’s other issue to be abandoned.

4On October 22, 2018, counsel for Appellant filed an application to amend his
brief, noting, without further identification or specification, “several omissions
and minor errors in the printed version of the brief.” (Application to Amend
Brief of Appellant, 10/22/18, at unnumbered page two). Appellant does not
present a proposed amended brief.              Nor does Appellant identify a
misstatement of fact requiring correction, a new issue to be raised, or new
authority requiring review.


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      Appellant challenges the sufficiency of the evidence. In reviewing the

sufficiency of the evidence, our standard of review is well-settled. We review

the evidence to determine,

      [W]hether 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. . . .
      Finally, the trier 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. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and

internal brackets omitted) (some formatting added), appeal denied, 174 A.3d

558 (Pa. 2017).

      Here, Appellant contends on appeal, that “[t]he trial court erred in

convicting [him]” of DUI, “because the Commonwealth failed to produce

sufficient evidence that he was ever driving the automobile on the night of the

alleged offense” and thus “failed to prove beyond a reasonable doubt that

[he] committed every element of the offense of which he was convicted.”

Appellant’s Brief at 14 (emphasis in original).

      However, Appellant’s concise statement of errors complained of on

appeal did not specify what element or elements of DUI the Commonwealth

had purportedly failed to establish. See Statement of Matters Complained of

on Appeal, 5/7/2018, at ¶ 2.


      [I]t should be noted that when challenging the sufficiency of the
      evidence    on    appeal,   the   appellant’s   court    ordered
      Pa.R.A.P.1925(b) concise statement must specify the element or


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      elements upon which the evidence was insufficient in order to
      preserve the issue for appeal. If the appellant fails to conform to
      the specificity requirement, the claim is waived.

      While the trial court did address the topic of sufficiency in its Rule
      1925(a) Opinion, . . . this is of no moment to our analysis because
      we apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not
      in a selective manner dependent on an appellee’s argument or a
      trial court’s choice to address an unpreserved claim. . . .

Commonwealth v. Smyser, ___ A.3d ____, 2018 PA Super 251, 2018 WL

4326689 at *3 (Pa. Super. filed Sept. 11, 2018) (internal brackets, citations,

and quotation marks omitted); see also In re J.G., 145 A.3d 1179, 1189 (Pa.

Super. 2016) (“to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient”).

      In this appeal if Appellant wanted to raise and preserve a claim that the

evidence was insufficient to establish DUI, his concise statement of errors had

to specify the element or elements for which the evidence was insufficient.

See Smyser, supra at *3, see also J.G., 145 A.3d at 1189. Appellant’s

boilerplate statement did not. See Statement of Matters Complained of on

Appeal, 5/7/2018, at ¶ 2. Accordingly, Appellant has waived this issue.

      Moreover, even if Appellant had not waived his sufficiency issue, it would

merit no relief. See Trial Ct. Op., 5/10/18, at 15-20 (eyewitness not required

to establish that defendant was driving, operating, or in actual physical control

of motor vehicle) (citing Commonwealth v. Johnson, 833 A.2d 260, 263



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(Pa. Super. 2003)).    Instructive to the instant case is Commonwealth v.

Young, 904 A.2d 947 (Pa. Super. 2006), wherein this Court determined that

where a witness observed a defendant standing near the driver’s side of his

vehicle after it crashed into a utility pole, that same witness provided a

detailed description of the driver to a police officer who arrived within a minute

of being dispatched, where the vehicle was registered in that defendant’s

name, where the car keys were found in his pocket and where a witness

observed him running away from the scene, that all these facts established

that the defendant was driving the vehicle despite not being seen driving the

vehicle involved in the accident. See Young, supra at 951, 955-56.

      In this case, a witness reported that a vehicle had crashed into a utility

pole and gave a detailed description of the occupant. An officer, who arrived

within seconds of being dispatched, observed Appellant – who matched the

description given by the witness − standing near the vehicle. He learned that

the vehicle was registered to Appellant.        The police found the vehicle’s

registration forms on Appellant.        The Commonwealth provided ample

circumstantial evidence to establish Appellant was driving the vehicle when it

struck the utility pole. See id.

      Here, viewed in the light most favorable to the Commonwealth as

verdict winner, these facts alone would have been sufficient to find that

Appellant drove or operated the vehicle. As additional supporting evidence

that Appellant drove or operated the vehicle, the police had the statement


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from a witness −who had seen Appellant leaving the scene −that Appellant

was the only occupant of the vehicle at the time of the collision. There was

also testimony from officers that they had seen no other persons in the vicinity

of the collision. Appellant’s own testimony, (as amended), was that he was

in the vehicle when it crashed into the pole. The trial court, as fact-finder,

concluded Appellant was not credible where his testimony contradicted that of

the officers.

      Appellant has failed to preserve any issues for our review. Accordingly,

we affirm the judgment of sentence. See In re K.L.S., 934 A.2d 1244, 1246

n.3 (Pa. 2007) (stating that where issues are waived on appeal, we should

affirm rather than quash). Moreover, Appellant’s challenge to the sufficiency

of the evidence would not merit relief. Furthermore, in the exercise of judicial

discretion, we determine that Appellant has failed to provide a sufficient basis

for the grant of permission to amend his brief, or delay our disposition.

      Judgment of sentence affirmed. Application to amend denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/18




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