J-A32002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TRUONG V. DUONG

                            Appellant                  No. 788 EDA 2014


           Appeal from the Judgment of Sentence February 28, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014151-2012
                                         MC-51-CR-0019063-2012


BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED JUNE 06, 2016

        Appellant, Truong V. Duong, appeals from the judgment of sentence

entered February 28, 2014, by the Honorable Anne Marie B. Coyle, Court of

Common Pleas of Philadelphia County, following his conviction of Driving

Under the Influence (DUI), 75 Pa.C.S.A. 3802(a)(1) and Criminal Mischief,

18 Pa.C.S.A. § 3304. This case comes back to us on remand from our

Supreme Court with directions for us to consider this matter on the merits.

We affirm.

        At 11 p.m. on May 9, 2012, Philadelphia Police Officer Gretchen

Flanagan was on routine patrol when she was flagged down by two

witnesses who reported that a vehicle accident had occurred. The driver of
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*
    Former Justice specially assigned to the Superior Court.
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the vehicle, Mamadou Bah, informed the officer that he was pulling into a

parking space in the area of the 6500 block of Dicks Street when a white

Chevrolet van driven by Duong struck Bah’s occupied vehicle. Duong then

fled the scene of the accident. The two witnesses to the accident followed

Duong to a residence located at 6510 Dicks Street.

         The two witnesses accompanied Officer Flanagan to 6510 Dicks Street

where she observed a white van parked on the street outside of the

residence. After Officer Flanagan instructed Duong, who was sitting on the

couch, to produce his license, registration, and proof of insurance, he

attempted to stand up two or three times and was unable to do so. When

Duong finally approached the officer, she observed that Duong had

extremely bloodshot eyes, and was staggering on his feet. Officer Flanagan

also noticed Duong was slurring his speech and had a strong odor of alcohol

emanating from his breath and person. Based upon Officer Flanagan’s

training and experience, she opined that Duong was “extremely, extremely

intoxicated and had no business being behind a wheel of a car.” N.T., Bench

Trial,    2/28/14   at   14.   After   Officer   Flanagan   requested   that   Duong

accompany her to the scene of the vehicle accident, Bah identified Duong as

the driver of the white van that struck his vehicle. The two eyewitnesses also

identified Duong as the driver of the white van.

         Duong was subsequently charged with DUI and Criminal Mischief.

Following a bench trial, the trial court convicted Duong of both charges. On




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February 28, 2014, the trial court sentenced Duong to serve six months’

probation.

      Duong appealed and this panel affirmed Duong’s judgment of

sentence, finding Duong’s issues raised on appeal waived for failure to

include in the certified record the notes of appeal of the trial. See

Commonwealth v. Duong, No. 788 EDA 2014 (Pa. Super., filed March 27

2015) (unpublished memorandum). After entry of our decision, Duong filed

an application for correction of the original record and an application for

reconsideration. The panel granted the former, but denied the latter. Duong

filed a petition for allowance of appeal to our Supreme Court, which was

granted. The Supreme Court vacated our decision and remanded with

instructions   for   us   to   consider    this   matter   on   the   merits.   See

Commonwealth v. Duong, 355 EAL 2015 (Pa., filed 2/29/16) (Order).

      On appeal, Duong raises the following issues for our review:

      Did the [t]rial [c]ourt below commit reversible error of law when
      it (1) found the Appellant Guilty of violating 75 Pa.C.S.A.
      3802(a)(1) based on insufficient evidence and (2) Admitted the
      results of a chemical breath test without the proper foundation in
      violation 75 Pa.C.S.A. 3802?

Appellant’s Brief at 6 (unnumbered).

      The following standard governs our review of a challenge to the

sufficiency of the evidence:

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it

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     establishes each material element of the crime charged and the
     commission thereof by the accused, beyond a reasonable doubt.
     Nevertheless, the Commonwealth need not establish guilt to a
     mathematical certainty. [T]he facts and circumstances
     established by the Commonwealth need not be absolutely
     incompatible with the defendant's innocence. Any doubt about
     the defendant’s guilt is to be resolved by the fact finder unless
     the evidence is so weak and inconclusive that, as a matter of
     law, no probability of fact can be drawn from the combined
     circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted). The factfinder, 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. See Commonwealth v. Valentine, 101 A.3d

801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).

Furthermore, the Commonwealth may sustain its burden by means of wholly

circumstantial evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877

(Pa. 2008).

     Duong was convicted under section 3802(a)(1) of the Motor Vehicle

Code, which states:

     § 3802. Driving        under   influence   of alcohol or   controlled
     substance

     (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). “[S]ubsection 3802(a)(1) is an ‘at the time of

driving’ offense, requiring that the Commonwealth prove the following

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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).

        Although Duong concedes that he was involved in an accident and,

thus, tacitly acknowledges that he was operating a vehicle, he maintains,

“there is no evidence presented at trial that would lead a fact-finder to

believe that [he] was under the influence at the time of driving.” Appellant’s

Brief    at   10   (unnumbered).         Duong    argues     that   Officer        Flanagan’s

observations of his alleged intoxication after the accident occurred did not

constitute proof that he was under the influence at the time of the accident.

See id.

        In Segida, the Pennsylvania Supreme Court described the types of

evidence that the Commonwealth may offer to prove this element:

        Section 3802(a)(1), like its predecessor [statute], is a general
        provision and provides no specific restraint upon the
        Commonwealth in the manner in which it may prove that an
        accused operated a vehicle under the influence of alcohol to a
        degree which rendered him incapable of safe driving.... 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


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       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.

985 A.2d at 879.

       Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, we find that the evidence presented at trial was sufficient

to enable the factfinder to conclude that Duong was incapable of safely

driving his vehicle due to the consumption of alcohol. The totality of the

circumstances reveals that the accident occurred at approximately 11 p.m.

See N.T., Bench Trial, 2/28/14 at 6. Officer Flanagan testified that her

observation of Duong’s slurred speech, staggering gate and the strong odor

of alcohol emanating from his person occurred “[a] little bit after 11:00

[p.m.].” Id. at 11.1 Officer Flanagan further testified that she did not

observe any open bottles of alcohol around the couch or in the room in

which Duong was sitting when she arrived at his residence shortly after the

accident occurred. See id. at 12. Based on Officer Flanagan’s observations

of Duong minutes after the accident occurred, we conclude that the court

properly found that the evidence was sufficient to prove that Duong
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1
  Duong’s claim that Officer Flanagan did not visit his residence until
approximately 45 minutes after the accident occurred is unsupported by the
record.



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operated his vehicle while under the influence of alcohol to a degree which

rendered him incapable of safe driving in violation of section 3802(a)(1) of

the Vehicle Code. See Segida.

      Lastly, Duong argues that the trial court erred when it admitted the

results of a breathalyzer test without establishing that the testing was

conducted in compliance with 75 Pa.C.S.A. § 1547(c). See Appellant’s Brief

at 13 (unnumbered). Section 1547 sets forth the requirements for the

admissibility of chemical test results in prosecutions involving an amount of

alcohol or controlled substance.

      A panel of this Court disposed of a similar claim in Commonwealth v.

Hilliar, 943 A.2d 984 (Pa. Super. 2008). There, Hilliar argued that chemical

test results should have been precluded because “the Commonwealth failed

to show that the equipment and procedures themselves were approved by

the Department of Health and that the equipment and procedures used in

this case were the best equipment and procedures that science and

technology would permit.” Id. at 992.

      The panel initially noted that, “[a]s a general rule, if a facility is

approved by the Department of Health and listed in the Pennsylvania

Bulletin, then the trial court may take judicial notice that the facility satisfies

the requirements of Section 1547.” Id. at 993. The panel continued:

      It is because a blood alcohol test is basic and routine and,
      therefore, highly reliable, that the safeguards ordinarily afforded
      by confrontation and cross-examination are not required. [A]
      party who believes that, notwithstanding a lab’s state approval
      and publication in the Pennsylvania Bulletin, some error in

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       testing occurred, i.e., the improper timing of a test or an
       equipment malfunction, is free to present evidence of that error
       to rebut the inference created by judicial notice. Only specific
       allegations of testing errors, and not general, boilerplate
       objections to the admission of the test results, will require the
       Commonwealth to provide evidence of the test’s reliability other
       than by reference to the Pennsylvania Bulletin.

Id. (emphasis added). Finding that the trial court took notice that the

hospital which conducted the blood analysis was listed in the Pennsylvania

Bulletin as an approved facility for blood testing and that Hilliar had not

raised any specific allegation of testing errors, the panel concluded that the

Commonwealth was not required to provide evidence to establish the test’s

reliability. Id. at 993-994.

       Here, unlike in Hilliar, there is no evidence that the trial court took

judicial notice that the facility that conducted the breathalyzer test was listed

as an approved facility for testing in the Pennsylvania Bulletin. 2        We note,

however, that Duong does not challenge whether or not the facility was an

approved facility for blood testing, but rather, alleges only generally that the

Commonwealth         did   not    comply       with   Section   1547   “because   the

Commonwealth failed to introduce calibration and accuracy documents.”

Appellant’s Brief at 8 (unnumbered). Guided by this Court’s decision in

Hilliar, we find that, in the absence of more specific allegations of error,

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2
  We note that defense counsel stipulated that Philadelphia Police Officer
Mark Menke, who administered the breathalyzer test and testified to the
results, was certified to administer and testify to the test results. See N.T.,
Trial, 2/28/14 at 16.



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such boilerplate language is inadequate to challenge the admission of test

results under Section 1547.

      Duong’s reliance upon the Pennsylvania Supreme Court’s decision in

Commonwealth v. McGinnis, 515 A.2d 847 (Pa. 1986), is misplaced. In

McGinnis, it was uncontroverted that the machine used to analyze the blood

test had been modified prior to use, and thus the unit was not approved by

the Department of Health for testing purposes. See id. at 850. On this basis,

the Court concluded that the blood results were inadmissible. See id. The

facts presented in McGinnis are clearly distinguishable from this case,

where Duong has not alleged any specific allegation of testing error.

      Even assuming, for the sake of argument, the breathalyzer results

were admitted in error, we would agree with the trial court that the error

was harmless. As noted, this Court’s decision in Segida counsels that blood

alcohol content evidence is not required for a conviction under Section

3802(a)(1). See Segida, supra, at 879; see also, Commonwealth v.

Griffith, 32 A.3d 1231, 1238 (Pa. 2011) (“Although the Commonwealth may

proffer evidence of alcohol level ... to establish that the defendant had

imbibed sufficient alcohol to be rendered incapable of driving safely, it is not

required to do so under subsection 3802(a)(1).... This is well-established,

long-standing law in Pennsylvania.”). Thus, Officer Flanagan’s personal

observations of Duong’s intoxication shortly after he operated his vehicle

would be sufficient under Section 3802(a)(1) even without the breathalyzer

results.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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