J-S74024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    YAHYA ASAAD MUHAMMAD                       :
                                               :
                       Appellant               :   No. 2438 EDA 2019

          Appeal from the Judgment of Sentence Entered July 23, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0007151-2018


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

MEMORANDUM BY MURRAY, J.:                               Filed: February 7, 2020



        Yahya Asaad Muhammad (Appellant) appeals from the judgment of

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

influence of alcohol (DUI).1 We affirm.

        The trial court accurately summarized the factual background as follows:

              On September 9, 2018, Officer Evan Flora was working as a
        patrol officer in Bridgeport Borough, Montgomery County. Notes
        of Testimony, “N.T.” Apr. 15, 2019 at 4. During his shift that
        night, he received a dispatch from adjacent Upper Merion
        Township that there was a hit and run in the area of 202 and
        DeKalb Street and that officers observed a dark colored sedan with
        heavy damage driving away from that area on two rims. Id. at
        5-6. Officer Flora observed a maroon Ford 500 driving on two
        rims that were sparking underneath the car; Flora could hear the
        metal screeching on the ground. Id. at 6. The car was traveling
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(a)(1).
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      well under the posted speed limit of 25 mph. Id. Officer Flora
      believed this to be the car from the dispatch. Id. at 6-7. He
      executed a U-turn and got behind the vehicle.             Id. at 7.
      [Appellant] made a U-turn, at which point Officer Flora activated
      his emergency lights and executed a traffic stop. Id. [Appellant]
      pulled over and immediately exited his vehicle, before Officer Flora
      approached him. Id. [Appellant] began to inspect the damage to
      his vehicle. Id. at 8. Officer Flora approached [Appellant] and
      asked him for his license, registration and proof of insurance. Id.
      at 9. [Appellant] retrieved a stack of papers from the vehicle and
      began sorting through it and dropping papers. Id. When he
      attempted to retrieve the dropped documents, Officer Flora
      observed him lose his balance and steady himself on the door of
      the car. Id. at 10.

             Officer Flora questioned [Appellant] about the damage to his
      car and [Appellant] indicated that he ran over a median in Upper
      Merion.[FN1] Id. During their conversation, Officer Flora observed
      that [Appellant’s] pupils were dilated, his eyes were glassy and
      bloodshot and there was an odor of alcohol on his breath. Id. at
      11. Officer Flora asked [Appellant] if he had been drinking, [and
      Appellant] initially responded, “No.” Id. The second time, he said
      “not within the hour.” Id. Finally, [Appellant] stated, “It’s my
      birthday man, come on.” Id. at 12. At this point Officer Flora
      attempted to administer field sobriety tests.          Id. at 13.
      Throughout the testing, [Appellant] attempted to talk his way out
      of it. Id. at 15-16. Officer Flora administered a portable breath
      test. Id. His first attempt at the breath test was unsuccessful
      and on his second attempt he sucked air in instead of blowing air
      out. Id. at 15. Officer Flora attempted to administer additional
      tests, but [Appellant] complained about each location until,
      eventually, he refused to move to a location to conduct further
      field sobriety testing.     Id. at 17.    While Officer Flora was
      attempting to explain a third test, [Appellant] put his hands
      behind his back and stated, “arrest me.” Id. [Appellant] also
      refused to submit to chemical testing. Id. at 55.

            FN1 Police ultimately determined that [Appellant] was
            not involved in the hit and run. Id. at 19.

Trial Court Opinion, 9/16/19, at 1-3.




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      Appellant appeared for a bench trial on April 15, 2019, after which the

trial court found him guilty of DUI, general impairment. On July 23, 2019, the

trial court sentenced Appellant to three to six months of incarceration.

Appellant filed this timely appeal.   Both the trial court and Appellant have

complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant presents one issue for our review:

            Was the evidence insufficient as a matter of law for the court
      to convict [Appellant] of 75 Pa.C.S.A. § 3802(a)(1) DUI/Unsafe
      Driving when there was insufficient evidence [Appellant] operated
      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 a vehicle.”

Appellant’s Brief at 2.

      Our standard of review of Appellant’s sufficiency claim is well-settled:

            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 [that of] 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 trier of fact while

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            passing upon the credibility of witnesses and the
            weight of the evidence produced, is free to believe all,
            part or none of the evidence.
      To reiterate, the jury, as the trier of fact—while passing on the
      credibility of the witnesses and the weight of the evidence—is free
      to believe all, part, or none of the evidence. In conducting review,
      the appellate court may not weigh the evidence and substitute its
      judgment for the fact-finder.

Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa. Super. 2019)

(citations omitted).

      Instantly, Appellant was convicted of DUI, general impairment, pursuant

to 75 Pa.C.S.A. § 3802(a)(1), which states that 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.”

      Appellant argues that the evidence was insufficient to support a finding

that he was incapable of safe driving because he “was able to walk unaided,

talk coherently and he followed all of the officer’s directions.” Appellant’s Brief

at 5. Appellant further asserts that Officer Flora did not “witness any driving

behavior . . . which would suggest that he was incapable of safe driving.” Id.

at 7. He continues:

      It turned out that [Appellant] was not involved in the hit and run
      in Upper Merion, so that could not provide evidence of incapacity
      to drive. When Officer Flora turned on his lights, [Appellant]
      immediately pulled over and was able to hand over his driving
      documents. There is no blood or breath test to show he was
      intoxicated. Moreover, there are no roadside tests to show he was
      intoxicated.

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Id.

      Appellant’s argument is unsupported by both the record and prevailing

authority. 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.

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

added).

      The trial court, sitting as the fact finder in this case, reasoned:

             Instantly, [Appellant] was driving a severely damaged
      vehicle and when initially questioned about the damage, he stated
      that he ran over a median in Upper Merion and presumably
      continued to drive the vehicle into a neighboring jurisdiction on
      two rims. When Officer Flora got behind him, he made a U-turn.
      When Officer Flora made contact with [Appellant,] he displayed
      signs of impairment, including glassy, bloodshot eyes, dilated
      pupils and an odor of alcohol on his breath. He was uncooperative
      during field sobriety tests. Furthermore, he admitted that he had
      consumed alcohol and told Officer Flora to arrest him following the
      Officer’s attempt to administer field sobriety tests. The foregoing
      is sufficient to prove that [Appellant] imbibed a sufficient amount
      of alcohol as to render him incapable of safe driving.

Trial Court Opinion, 9/16/19, at 4.

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      The trial court’s reasoning is irrefutable. The Commonwealth presented

one witness, Officer Evan Flora; Appellant did not present any witnesses. See

N.T., 4/15/19, at 58. Officer Flora’s testimony comports with the trial court’s

recitation of the evidence reproduced above.       For instance, Officer Flora

testified that he first observed Appellant’s vehicle “on two rims that was

sparking from underneath the car” and heard it screeching. Id. at 7. When

he pulled Appellant over, he observed Appellant, who was alone in the vehicle,

to have glassy and bloodshot eyes, “a strong odor of alcoholic beverage

emitting from his breath,” and, upon standing, an “unsteady gait.” Id. at 11.

Officer Flora testified that Appellant “was attempting to talk his way out of”

the portable breath test, and then “began sucking on the device.” Id. at 15.

Although there is more, this testimony without more was sufficient for the trial

court to conclude that Appellant drove his vehicle “after imbibing a sufficient

amount of alcohol such that [Appellant was] 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).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/20




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