J-A05027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,,                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

REINALDO HERRERA,

                            Appellant                 No. 1818 WDA 2015


     Appeal from the Judgment of Sentence Entered November 9, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001160-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 09, 2017

       Appellant, Reinaldo Herrera, appeals from the judgement of sentence

of 90 days’ intermediate punishment, a concurrent term of 6 months’

probation, and a $1500 fine,1 imposed following his conviction for three

counts of driving under influence of alcohol or controlled substance (DUI), 75

Pa.C.S. § 3802, all of which stemmed from the same incident.         Appellant

claims the evidence was legally insufficient to support his conviction. After

careful review, we affirm.

       The trial court summarized the facts adduced at trial, as well as the

court’s relevant credibility determinations, as follows:

____________________________________________


1
  Appellant was also ordered to attend safe driving school, pay court costs,
undergo a drug and alcohol evaluation, and to comply with any resulting
treatment recommendations from that evaluation.
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           The facts presented to this [c]ourt and found to be credible
     are as follows: on October 25, 2014, officers responded to a one
     -vehicle motorcycle accident on Steuben Street in the City of
     Pittsburgh.    Officer Loughran, an officer with the City of
     Pittsburgh since 2005, testified that when he arrived on the
     scene of the accident, he found a damaged motorcycle resting
     near a cement median in the middle of the road. He next
     noticed [Appellant] speaking with medics, and observed a cut on
     [Appellant]'s head. When he approached [Appellant], Officer
     Loughran stated [that Appellant] smelled of alcohol, and recalled
     [Appellant’s] stating he had been coming from a friend's house
     in Mt. Washington. Officer Loughran further testified that the
     damage to the motorcycle was so extensive that it had to be
     towed.

             Officer Timothy Bateman, an officer with the City of
     Pittsburgh for 16 years, testified that during his time with the
     department he has made over 200 DUI arrests and has
     significant experience with DUI offenders. He testified that upon
     arriving on the scene, he observed that the motorcycle had a
     damaged wheel well rendering it inoperable. He stated that it
     was a well-lit, clear, and dry night, and that he observed no
     debris in the roadway that could have caused the accident. He
     determined that the owner of the motorcycle was [Appellant],
     and that he was the operator of the vehicle, as there were no
     other individuals in the vicinity of the accident. Based upon his
     experience, Officer Bateman testified that typically, DUI
     offenders can emit an odor of alcoholic beverages, have glassy
     or bloodshot eyes, slurred speech, difficulty standing, walking, or
     have an unsteady gait.        Officer Bateman testified that he
     witnessed many of these traits while observing and talking to
     [Appellant], including glassy eyes, slurred speech and the odor
     of alcohol. He also observed that [Appellant] was "loud" and "a
     little angry," and that "his demeanor was that of someone who
     appeared to be intoxicated." [N.T., 9/25/15, at 20].

            Due to his observations, Officer Bateman testified that he
     requested that [Appellant] perform a series of field sobriety
     tests. [Appellant] first attempted the finger-to-nose test, but he
     was unable to successfully complete this test. On his first
     attempt, [Appellant] missed his nose and touched his upper lip
     and on his second attempt, he "didn't know where his right or
     left index finger was." [Id. at 21]. [Appellant] then attempted
     the nine-step heel-to-toe test. He also unsuccessfully completed
     this test by walking off of the straight line, failing to touch heel

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        to toe, and stopping the test prior to completion. Finally, Officer
        Bateman requested [that Appellant] perform the one-legged
        stand test and [Appellant] stated that he had a bad leg. At this
        point, [Appellant] became "verbal, combative, and abusive"
        toward Officer Bateman and his partner.            [Id. at 22].
        [Appellant] was placed under arrest. After [Appellant] refused
        medical attention, he was transported [to a police station] for a
        breath test.

              Officer Kevin Walters, currently a Patrol Sergeant for the
        City of Pittsburgh, has a total of fifteen years' experience as a
        City of Pittsburgh Police Officer including seven years' experience
        in traffic accident investigation. With regard to DUI offenders,
        Officer Walters received certification to operate three different
        breath test instruments and has completed over 200 hours in
        DUI related training. Officer Walters was working the night shift
        on October 25, 2014 when [Appellant] was brought in for a
        breathalyzer test. Officer Walters testified [that Appellant] was
        placed in a cell for the standard 20-minute observation, after
        which he was asked if he would submit to the breathalyzer.
        [Appellant] refused. At this point, Officer Walters read the DL-
        26[2] and the O'Connell warnings[3] to [Appellant]. [Appellant]
        again refused to submit to the breathalyzer test.
____________________________________________


2
 The DL-26 is a form issued by Pennsylvania’s Department of Transportation
describing Pennsylvania’s implied consent law, 75 Pa.C.S. § 1547.
3
    Our Supreme Court has stated:

              The phrase, “O'Connell warning”, is a shorthand
        expression for the duty imposed upon a police officer to inform a
        motorist, who has been asked to submit to chemical testing, that
        the Miranda rights are inapplicable to a request for chemical
        testing under the Implied Consent Law.        Commonwealth,
        Department of Transportation v. O'Connell, 521 Pa. 242,
        555 A.2d 873 (1989). The O'Connell warning must specifically
        inform a motorist (1) that his driving privileges will be
        suspended for one year if he refuses chemical testing; and (2)
        that his Miranda rights do not apply to chemical testing.
        Commonwealth, Department of Transportation v. Ingram,
        538 Pa. 236, 648 A.2d 285 (1994).
(Footnote Continued Next Page)


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            During the 20-minute observation period, Officer Walters
      noted that [Appellant] emitted a moderate odor of alcoholic
      beverages, had glassy, bloodshot eyes and exhibited conduct
      consistent with someone who is impaired. Officer Walters noted
      that moderate odor of alcohol is consistent with someone who
      has had more than just a few drinks. After the second refusal,
      [Appellant] remained in the holding cell until his ride home
      arrived.

            [Appellant] waived his right not to testify and took the
      stand in his defense. [Appellant testified that he] was riding his
      2011 Harley Davidson through the West End on October 25,
      2014 when a blue car came up on his right. He stated that he
      looked sideways toward the car [and] then he had the accident.
      He further testified that he does not recall the actual accident.
      [Appellant] testified he is an experienced rider, and has been
      riding motorcycles since he was a child. [Appellant] testified
      that he had consumed two and a half beers prior to operating his
      motorcycle and was running late to meet his ex-wife and son.

             [Appellant] recalled hitting his head during the accident,
      and had a vague recollection of the events following the
      accident. [Appellant] admitted he did not seek medical attention
      until some point after the accident. He received treatment for
      an infection from his superficial leg wounds.

            This [c]ourt did not find [Appellant]'s testimony to be
      credible as a whole, however, there are portions of his testimony
      that were credible.      Specifically, this [c]ourt finds that
      [Appellant]'s testimony as to his operation of the motorcycle at
      the time of the accident to be credible. Further, [Appellant]'s
      testimony that he had consumed alcohol prior to operating his
      motorcycle was credible. This [c]ourt found that [Appellant]'s
      testimony as to the amount of alcohol he consumed, the
      presence of a blue vehicle, and the extent of his injuries not to
      be credible.

Trial Court Opinion (TCO), 6/7/16, at 2-6 (some internal citations omitted).

                       _______________________
(Footnote Continued)

Commonwealth, Dept. of Transp., Bureau of Driver Licensing v.
Boucher, 691 A.2d 450, 452 (Pa. 1997) (referencing Miranda v. Arizona,
384 U.S. 436 (1966)).



                                            -4-
J-A05027-17



       Appellant was ultimately charged with three counts of DUI4 and

reckless driving. Following a non-jury trial held on September 25, 2015, he

was convicted of all DUI counts, but found not guilty of reckless driving. On

November 9, 2015, he was sentenced as stated above.            Appellant filed a

timely notice of appeal on November 19, 2015, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement on December 9, 2015. The trial court issued

its Rule 1925(a) opinion on June 7, 2016.

       Appellant now presents the following question for our review:

       Under Pennsylvania law, does the Commonwealth survive a
       challenge to the sufficiency of the evidence of [DUI] charges,
       when the Commonwealth fails to establish [that] Appellant was
       intoxicated while operating a vehicle?

Appellant’s Brief at 4.

       Our standard of review of sufficiency claims is well-settled:

       A claim challenging the sufficiency of the evidence is a question
       of law. 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. Where the evidence offered to support the
____________________________________________


4
  The multiplicity of DUI counts charged was a consequence of the various
sentencing provisions which applied to the circumstances attendant to the
underlying DUI offense.        See 75 Pa.C.S. § 3802(a)(1) (defining the
underlying DUI offense); see 75 Pa.C.S. § 3803(b) (grading refusals to
submit to a blood or breath test to determine blood-alcohol content (B.A.C.)
and DUI offenses involving an accident causing injury as misdemeanors of
the first degree, rather than the baseline second-degree misdemeanor
grading applying to basic first-time DUI offenses); see 75 Pa.C.S. § 3804(b)
(defining the applicable penalties for a DUI involving an accident causing
injuries); and see 75 Pa.C.S. § 3804(c) (defining the applicable penalties
for a DUI involving a refusal to submit to B.A.C. testing).



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J-A05027-17


      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Appellant’s convictions all fell under the general impairment provision

of the DUI law, which states: “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). Our Supreme Court has clarified

that “subsection 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, 985 A.2d

871, 879 (Pa. 2009). Moreover,

      [t]he 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. … The
      weight to be assigned these various types of evidence presents a
      question for the fact-finder, who may rely on his or her


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J-A05027-17


      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….

Id. at 879.

      Regarding Appellant’s challenge to the sufficiency of the evidence, the

trial court found as follows:

             In this matter, the evidence presented established that
      [Appellant] operated his motorcycle and was rendered incapable
      of safely doing so due to the consumption of alcohol. First,
      [Appellant] admitted to operating his motorcycle at the time of
      the accident, thus the first element of DUI-general impairment,
      that the accused was operating a vehicle, is satisfied. With
      regard to being rendered incapable of safely operating his
      motorcycle due to his alcohol consumption, the testimony of
      Officer Bateman and Officer Walters established that he was
      impaired. Officer Bateman indicated that [Appellant] emitted a
      moderate odor of alcohol, had glassy and bloodshot eyes, and
      failed two field sobriety tests.       Further, he testified that
      [Appellant] exhibited the demeanor of an individual who was
      impaired due to alcohol consumption.              Officer Walters
      corroborated Officer Bateman's observations by testifying that
      [Appellant] emitted a moderate odor of alcoholic beverages, had
      glassy bloodshot eyes, and behaved consistent with an individual
      who is impaired. Based upon these facts, the evidence was
      sufficient to support a conviction of DUI-general impairment.

TCO at 7.

      Appellant contends, however, that:

             Here, the lower [c]ourt relied on the testimony from two
      officers that stated … Appellant had a moderate odor of alcohol
      emanating from his person, glassy eyes, failed two field sobriety
      tests and behaved in a manner consistent with a person being
      intoxicated.

           A closer review of the trial testimony reveals that Officer
      Bateman only stated that the Appellant had glassy eyes as
      opposed to bloodshot eyes. Of the many observations Officer

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J-A05027-17


      Bateman states [that] he notices in people who are under the
      influence, Officer Bateman did not notice that … Appellant had
      difficulty standing, an unsteady gait, was yelling or having
      difficulty walking or talking. The officers did not observe …
      Appellant driving or observe the accident. No witnesses were
      produced that offered testimony of … Appellant driving or were
      witnesses to the accident.

             Further, Officer Bateman admitted that he was unable to
      determine whether a person with a head injury such as …
      Appellant, would have slurred speech or trouble with words as a
      result of [the] head injury. Similarly, Officer Bateman was
      unable to determine whether a person with a head injury[]
      would have trouble with swaying or balance. Officer Bateman
      finally admitted that a person with a leg injury would have
      difficulty standing.

            In sum, the same characteristics that led Officer Bateman
      to believe that … Appellant was intoxicated could have also
      stemmed from the injuries resulting from the accident, which
      was established through cross examination testimony from
      Officer Bateman and testimony from … Appellant.

Appellant’s Brief at 10-11.

      Appellant’s arguments are unconvincing.      First, Appellant cites to no

authority suggesting that the observation of glassy eyes is substantially

different from an observation of bloodshot or bloodshot and glassy eyes. As

the Segida Court indicated, there is no exclusive list of factors which can be

considered in a prosecution for general impairment under the DUI statute.

Perhaps the presence of glassy eyes indicates a lesser degree of intoxication

than bloodshot eyes, or maybe some intoxicated persons’ eyes appear

glassy and others’ bloodshot, while some intoxicated persons’ eyes exhibit

both symptoms simultaneously. Whatever the truth of the matter, Appellant

has simply failed to offer any explanation regarding how the inference of

intoxication is significantly impacted by the observation of exclusively glassy,

                                     -8-
J-A05027-17



rather than bloodshot, or glassy and bloodshot eyes. Accordingly, we attach

no significance to the lower court’s misstatement that Officer Bateman had

observed Appellant’s bloodshot eyes.        Regardless, Officer Walters did, in

fact, observe that Appellant had “glassy, bloodshot” eyes when he was taken

to the police station for B.A.C. testing. N.T., 9/25/15, at 39.

      Second, Appellant’s summary of conditions or behaviors which were

not observed by Officer Bateman is wholly irrelevant. Appellant cites to no

legal authority suggesting that all possible indications of intoxication must be

present to sustain a conviction under Section 3802(a)(1) on sufficiency

grounds.   As noted by the trial court, Appellant displayed several signs of

intoxication. Appellant emitted an odor of alcohol noticed by both officers.

He exhibited glassy eyes to Officer Bateman, and bloodshot, glassy eyes to

Officer Walters. Appellant also failed two field sobriety tests. Additionally,

Officer Bateman testified that, during his interaction with Appellant,

Appellant was “[l]oud, a little angry, [and] not following directions.” N.T.,

9/25/15, at 20. Moreover, Appellant admitted, during the course of his own

testimony, that he had consumed approximately 2½ beers just prior to

operating his motorcycle.      Id. at 50.      Such evidence is, collectively,

sufficient to establish his violation of Section 3802(a)(1).

      Third, Appellant’s concern regarding Officer Bateman’s failure to

observe his driving is of no consequence in the circumstances of this case.

Appellant was discovered at the scene of a motorcycle accident.          Officer

Bateman determined that Appellant owned the motorcycle involved.          N.T.,

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J-A05027-17



9/25/15, at 18.      Officer Bateman testified, without any objection by

Appellant, that he had told another officer that he was driving. Id. at 20.

Indeed, he admitted, during his own testimony, that he was riding his

motorcycle just prior to being involved in an accident.     Id. at 49. Simply

put, there was no dispute at trial that Appellant was operating the

motorcycle at the time it crashed.      His claim that “[n]o witnesses were

produced that offered testimony of … Appellant driving or were witnesses to

the accident,” unsuccessfully, and somewhat frivolously, attempts to

obfuscate this undisputed fact. Appellant’s Brief at 10.

      Fourth, Appellant did offer circumstantial evidence, through his own

testimony, and through his cross-examination of Officer Bateman, that the

signs of his intoxication might also have been consistent with a preexisting

leg injury and/or a head injury sustained in the accident. As noted by the

Commonwealth, however, Appellant twice refused medical assistance at the

scene. N.T., 9/25/15, at 23. He also never subsequently sought treatment

for a head injury sustained in the accident.    Id. at 65 (Appellant’s stating

that he only sought treatment for a leg injury).

      Under sufficiency review, we must “view the evidence in the light most

favorable to the verdict winner giving the prosecution the benefit of all

reasonable inferences to be drawn from the evidence.” Widmer, 744 A.2d

at 751.   It was not at all unreasonable in this case for the trial court to

conclude that Appellant’s behavior and other characteristics of intoxication

were in fact due to his intoxication, rather than to any preexisting injuries or

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J-A05027-17



injuries sustained in the accident. Moreover, to the extent that Appellant is

attempting to challenge the weight afforded to this evidence by the trial

court, we deem such arguments waived due to his failure to preserve a

weight-of-the-evidence    claim   in   his      Rule   1925(b)   statement.   See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

raised in a 1925(b) statement will be deemed waived.”).

      Finally, Appellant argues that his accident resulted from the actions of

another driver, and was not proven to be a result of his intoxication. While

in certain cases, evidence pertaining to the causation of an accident may

support an inference of intoxication, we see nothing in the trial court’s

analysis in this case which suggests that it based its verdict on Appellant’s

involvement in the accident.      Furthermore, Section 3802(a)(1) does not

contain any elements requiring such a showing. Indeed, it may very well be

the case that Appellant’s accident was caused by another individual.

Nevertheless, even if innocent in that respect, Appellant could still be held

accountable for driving his motorcycle while intoxicated to the extent that it

rendered him incapable of safe driving. Indeed, this is reflected in the trial

court’s determination that Appellant was guilty of DUI, but not guilty of

reckless driving. For all of the above reasons, we conclude that Appellant’s

sufficiency claim is meritless.

      Judgment of sentence affirmed.




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J-A05027-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2017




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