J-A24019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

MICHAEL A. MIKLOSKO, JR.

                        Appellant                    No. 1816 WDA 2016


      Appeal from the Judgment of Sentence Dated October 27, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0015671-2015

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                  FILED NOVEMBER 17, 2017

     Appellant, Michael A. Miklosko, appeals from the judgment of sentence

imposed after the trial court convicted him of driving under the influence of

alcohol (DUI) – general impairment, 75 Pa.C.S. § 3802(a)(1). We affirm.

     The trial court recited the facts as follows:

           At approximately 12:50 A.M. on July 4, 2015, Ross
     Township Police Officer Balazs Devenyi was observing traffic
     from a parking lot on McKnight Road in his marked police
     vehicle. Officer Devenyi observed Appellant make an illegal U-
     turn on McKnight Road at Nelson Run Road. Officer Devenyi
     pulled out of the parking lot onto McKnight Road and followed
     Appellant. Officer Devenyi ran Appellant’s registration, and while
     following Appellant observed that he twice swerved over the
     solid white line separating McKnight Road from the 279 South
     on-ramp. At that point, Officer Devenyi activated his lights and
     sirens and attempted to conduct a traffic stop of Appellant’s
     vehicle. Appellant drove another 300 feet before pulling over in
     response to the police officer’s action.

          Officer Devenyi walked over to the driver’s side window
     and spoke with Appellant. Officer Devenyi immediately smelled
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       a moderate odor of alcoholic beverage on Appellant’s breath.
       Appellant’s eyes were glassy, watery, and bloodshot. Appellant
       provided his driver’s license upon request, and Officer Devenyi
       returned to his vehicle to run Appellant’s license.        Officer
       Devenyi learned that Appellant’s driver’s license was suspended.

              When Officer Devenyi returned to Appellant’s vehicle, he
       noticed that the vehicle was still in drive, and he requested that
       Appellant shut the vehicle off and hand him the keys. Additional
       officers arrived on [the] scene to serve as backup, and Officer
       Devenyi asked Appellant to step out of the vehicle to conduct
       field sobriety tests; Appellant complied.          Officer Devenyi
       administered several field sobriety tests, including walk and turn,
       one leg stand, and modified Romberg balance tests. Appellant
       swayed throughout the tests and had difficulty following
       instructions. Appellant failed the walk and turn test and the one
       leg stand test. At that point, Officer Devenyi asked Appellant to
       submit to a preliminary breath test, and Appellant complied.
       Appellant admitted that he was drinking earlier in the evening.

             Based on Appellant’s performance in the field sobriety
       tests, the operation of his vehicle, his admission to the
       consumption of alcohol, and his overall appearance, Officer
       Devenyi was of the opinion that Appellant was under the
       influence of alcohol or drugs to the degree that he was unable to
       safely operate a motor vehicle. Appellant was arrested and
       charged [with DUI].

Trial Court Opinion, 2/21/17, at 4-5 (citations to notes of testimony and

footnote omitted).

       Appellant appeared for a non-jury trial on September 29 and

October 20, 2016. On October 27, 2016, the trial court rendered its guilty

verdict and sentenced Appellant to six months of probation for DUI.1

Appellant filed this timely appeal. He presents a single issue for our review:

____________________________________________
1 The trial court also found Appellant guilty of the summary offenses of
driving while his operating privilege was suspended and making an unsafe
U-turn, 75 Pa.C.S. §§ 1543 and 3332, but did not impose any further
penalty.

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      Did the trial court err in finding [Appellant] guilty of violating 75
      Pa.C.S. § 3802(a)(1) when the evidence was insufficient as a
      matter of law to establish, beyond a reasonable doubt, that
      [Appellant] was impaired by alcohol to a degree that rendered
      him incapable of safe driving?

Appellant’s Brief at 6.

      An en banc panel of this Court recently explained our role when

reviewing a DUI conviction under Section 3802(a)(1):

      The standard we apply in reviewing the sufficiency of the
      evidence is whether 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. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder 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. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the finder 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.

      Section 3802(a)(1) of the Vehicle Code provides:

        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) (emphasis added). In 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

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      influence of alcohol to such a degree as to render him incapable
      of safe driving. Commonwealth v. Palmer, 751 A.2d 223, 228
      (Pa. Super. 2000). To establish the second element, the
      Commonwealth must show 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.

      Id. (citations and footnote omitted).

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en

banc).

      Appellant argues that the evidence was “anemic, ambiguous, and

contradictory.” Appellant’s Brief at 25, 30-31. Appellant contends that no

witness testified to Appellant being impaired by alcohol to a degree that

rendered him incapable of safe driving.       Id. at 25, 34, 38.    He further

asserts that he passed two of the four field sobriety tests administered by

Officer Devenyi, including the Romberg balance test. He claims that the two

he failed were “inherently unreliable” and that his failure was attributable to

his diabetes/neuropathy.    Id.   Appellant stresses that the results of the

“most objective of the tests” – the portable breath test – registered an

alcohol level of 0.0. Id. at 25-26, 38. Appellant also states that he “did not

exhibit several other commonly expected signs of alcohol impairment, such

as slow, slurred speech.” Id. at 26. For these reasons, Appellant maintains
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that “the trial court’s conclusion that [Appellant] was impaired by alcohol

rests on a foundation of suspicion and conjecture rather than proven facts

and reliable evidence.” Id. at 39.

       The Commonwealth responds that the evidence was sufficient to

demonstrate that Appellant had consumed enough alcohol to render him

incapable of safe driving because Appellant made an illegal U-turn,

“swerve[d] over a solid white line, then hit his breaks, and then swerve[d]

back over the line,” emitted a “moderate odor of alcohol” and had “glassy,

watery and bloodshot eyes,” performed poorly on field sobriety tests, and

admitted that he had been drinking.            Commonwealth’s Brief at 12-15, 18.

The Commonwealth takes issue with Appellant’s assertion that he passed the

Romberg test, citing testimony that a Romberg test “isn’t pass or fail.” Id.

at 15, citing N.T., 9/29/16, at 58.

       Two witnesses testified at Appellant’s trial. 2        The first was Ross

Township Police Officer Balazs Devenyi.              Officer Devenyi testified to

observing Appellant’s vehicle make an illegal U-turn and then “swerve over

[the white] line for a second, apply its brakes, and then it swerved back over

that line.” N.T., 9/29/16, at 9-10. Officer Devenyi activated his siren and

lights to conduct a traffic stop. He stated:

       Upon initial contact [Appellant] asked why I pulled him over, and
       during that contact I smelled the moderate odor of an alcoholic
       beverage on his breath, and I observed his eyes were glassy,

____________________________________________
2 Appellant did not present any witnesses, and stated that he did not wish to
testify. N.T., 9/29/16, at 71-72.

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      watery and bloodshot, and I requested his driver’s license,
      registration and proof of insurance.

Id. at 11.   Based on his observations, Officer Devenyi asked Appellant to

exit the vehicle and perform standardized field sobriety tests.     The officer

administered the horizontal gaze nystagmus, the walk and turn, the one leg

stand, and modified Romberg balance tests.       Id. at 13.   Appellant passed

the first test.   Id. at 53.   Appellant failed the walk and turn and one leg

stand tests. Id. at 13-14. As to the fourth test, Officer Devenyi testified

that he “instructed [Appellant] on how to complete the test, but he didn’t do

that properly.” Id. at 17. On cross-examination, Officer Devenyi testified

that he administered the Romberg balance test “[t]o make additional

observations about [Appellant],” but that it isn’t a “pass or fail” test. N.T.,

9/29/16, at 58, 63.

      As a result of Appellant’s field sobriety testing, Officer Devenyi asked

Appellant to submit to a preliminary breath test, and Appellant agreed. The

breathalyzer test showed that Appellant had no alcohol on his breath,

although Officer Devenyi testified that he suspected at the time that the

breathalyzer was defective, and it was later determined to be faulty and

“taken out of service.”    N.T., 9/29/16, at 35-36.   Officer Devenyi testified

that Appellant admitted that he had been drinking. Id. at 23, 33.

      While performing the field sobriety tests, Officer Devenyi noticed that

Appellant “had white powdery residue around his nostril, and there were

crumbs in his nose.” N.T., 9/29/16, at 13. Suspecting possible drug use,

Officer Devenyi requested that a K-9 team investigate the vehicle.      Id. at
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15, 37, 63. An investigation located “a small zip lock bag with some white

powdery residue inside the cup holder of the vehicle” and “white powder

rubbed into the glove compartment door and also some on the front

passenger seat in the grains.”          Id. at 16.   Later, Appellant’s demeanor,

thirst, elevated blood pressure, and complaints that he was hot led Officer

Devenyi to suspect that Appellant might have been using cocaine. Id. at 21,

38-39. No testing was ever done of the powdered substances, however. Id.

at 46-48.

       Officer Devenyi stated, “I didn’t believe [Appellant] could operate a

motor [vehicle] safely on the roadway.” N.T., 9/29/16, at 16. He repeated,

“I believed he was incapable of safe driving on the road, and I arrested him

for suspicion of driving under the influence.” Id. at 17; see also id. at 19,

36 (“I did not believe he was capable of safely driving on the roadway” and

“I believed [Appellant was] unable to operate a motor vehicle”).

       The Commonwealth also called Ross Township Police Officer Jordan

Seese to testify.3 Officer Seese testified briefly to arriving at the scene of

the traffic stop, to Appellant being “a nice guy,” and to not observing Officer

Devenyi interacting unprofessionally with Appellant.        N.T., 9/29/16, at 67-

69.


____________________________________________
3 Appellant objected to Officer Seese’s testimony on the basis that it “would
be redundant.” N.T., 9/29/16, at 64. In overruling Appellant’s objection,
the trial court said, “there has been substantial cross-examination [of Officer
Devenyi], and it has been to impugn his credibility. This is offered to
corroborate his observations, and it’s certainly admissible.” Id. at 64-65.

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      In reviewing the above evidence in a light most favorable to the

Commonwealth as verdict-winner, we conclude that no relief is due

Appellant on his sufficiency argument.     The statute under which Appellant

was convicted states that an individual “may not drive . . . a vehicle after

imbibing a sufficient amount of alcohol such that the individual is

rendered incapable of safely driving . . . . 75 Pa.C.S. § 3802 (emphasis

added). Appellant does not dispute that he was driving or that he consumed

alcohol; his argument is that the “pittance” of evidence fails to establish

beyond a reasonable doubt that he was “impaired by alcohol to a degree

that rendered him incapable of safe driving.” Appellant’s Brief at 25. The

trial court found otherwise, and its findings are supported by both the record

and the case law.

      Our Supreme Court has explained:

      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.
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Commonwealth        v.   Segida,       985   A.2d   871,   879    (Pa.   2009).

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011), on which

the trial court relied, expresses a similar teaching, with an emphasis on field

sobriety tests:

      In order to be found guilty of DUI—general impairment, an
      individual’s alcohol consumption must substantially impair his or
      her ability to safely operate a vehicle. Commonwealth v.
      Palmer, 751 A.2d 223 (Pa. Super. 2000). Evidence of erratic
      driving is not a necessary precursor to a finding of guilt under
      the relevant statute. The Commonwealth may prove that a
      person is incapable of safe driving through the failure of a field
      sobriety test. Id.; see also Commonwealth v. Smith, 831
      A.2d 636 (Pa. Super. 2003). Herein, Appellant failed four
      separate field sobriety tests, smelled of alcohol, and proceeded
      to coast through a stop sign despite a police officer being in plain
      view. This evidence viewed in a light most favorable to the
      Commonwealth cannot be considered so weak and inconclusive
      that no probability of fact can be drawn from the circumstances.

14 A.3d at 890.

      Our review satisfies us that the evidence here was not, as Appellant

asserts, so “ambiguous and contradictory” that the trial court could not

convict Appellant on the basis of it. Although Appellant’s breathalyzer test

did not produce evidence of alcohol, Appellant admitted that he had

consumed alcohol and failed to pass some of the field sobriety tests that

Officer Devenyi administered.         Officer Devenyi testified that Appellant

committed two traffic violations, smelled of alcohol, and had glassy, watery

and bloodshot eyes. As noted above, Appellant did not offer any evidence to

refute Officer Devenyi’s testimony.

      In addition, Officer Devenyi concluded – and opined at trial – that

Appellant was incapable of safe driving. We have found repeatedly that a
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police officer who has perceived a defendant’s appearance and acts is

competent to express an opinion as to the defendant’s state of intoxication

and ability to safely drive a vehicle. See, e.g., Commonwealth v. Palmer,

751 A.2d 223 (Pa. 2000), citing Commonwealth v. Feathers, 660 A.2d

90, 95-96 (Pa. Super. 1995) (en banc), aff’d, 683 A.2d 289 (Pa. 1996).

Appellant argues, however, that Officer Devenyi did not arrest Appellant

because he suspected him of alcoholic intoxication, but because “he

suspected [Appellant] was under the influence of cocaine.” Appellant’s Brief

at 21. Appellant adds that “when Officer Devenyi’s testimony is taken as a

whole,” it is “evident that he did not believe that [Appellant] was impaired

by alcohol to a degree that rendered him incapable of safe driving” and that,

“contrary to the trial court's mistaken assertion in its 1925(a) opinion —

Officer Devenyi never offered that specific opinion.” Id. Our review of the

record discloses, however, that Officer Devenyi testified about Appellant’s

possible impairment by both alcohol (which he said he smelled on

Appellant’s breath and to which Appellant admitted drinking) and drugs.4

____________________________________________
4   Officer Devenyi testified on cross-examination by Appellant:

        Q: So if I blew a 0.0 you came to the conclusion that I was
        unable to operate the vehicle safely, and was that based on your
        guess of my blood alcohol count, or was it based on your
        perception and suspicion that I was on other substances?

        A. It was a result of the field sobriety tests, your admissions and
        my suspicion that you had drugs in your system.

        Q. What admissions?

(Footnote Continued Next Page)
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The trial court was free to consider that testimony along with the other

evidence in the case and to conclude that Appellant was impaired and that

his consumption of alcohol caused the impairment.

        We may not substitute our judgment for that of the trial court.

Rather, it was the exclusive province of the trial court, sitting as the finder of

fact,    to    determine   the    weight       of   the    relevant    evidence.      See

Commonwealth v. Mitchell, 883 A.2d 1096, 1110–1111 (Pa. Super.

2005),        appeal   denied,     897     A.2d      454    (Pa.      2006);    see   also

Commonwealth v. Cruz, 71 A.3d 998, 1009 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013).           Here, the trial court concluded that “th[e]

evidence was more than sufficient to sustain Appellant’s conviction of driving

under the influence.”       Trial Court Opinion, 2/21/17, at 7.                We may not

disturb that judgment.           See Feathers, 660 A.2d at 96 (forbidding

“impermissible re-evaluation of the credibility of the witnesses and the

weight of the evidence”).




(Footnote Continued) _______________________
        A. Your admissions of drinking.

        Q. So I blew a 0.0 and told you I had two drinks, and you with
        your infinite knowledge concluded I was not capable of operating
        the vehicle because of alcohol?

        A. People lie to me all the time, and they usually say they have
        one or two drinks.

N.T., 9/29/16, at 37.

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     In sum, upon review of the record and consistent with the prevailing

authorities, we conclude that Appellant’s sufficiency argument is without

merit. Accordingly, we affirm the judgment of sentence.

     Unopposed application for relief to take judicial notice granted.

Judgment of sentence affirmed.

     Judge Moulton joins the memorandum.

     Judge Musmanno files a dissenting statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2017




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