J-A30044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JIMMY AARON,

                            Appellant                     No. 664 EDA 2014


            Appeal from the Judgment of Sentence January 16, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0008978-2013


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                    FILED MARCH 04, 2015

        Appellant, Jimmy Aaron, appeals from his bench trial conviction of

driving    under     the    influence     (general   impairment),   75   Pa.C.S.A.

§ 3802(a)(1).1 He challenges the sufficiency and the weight of the evidence.

We affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    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).
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       On January 29, 2012, at approximately 1:32 a.m., Philadelphia Police

Officer Christopher Ward pulled Appellant over on the 2700 block of

Kensington Avenue for driving without headlights on. On approaching and

talking with Appellant, the officer observed his slurred speech, bloodshot

eyes and the odor of alcohol.          Officer Ward arrested Appellant for driving

under the influence of alcohol.2

       After a bench trial, the court convicted Appellant of driving under the

influence in violation of 75 Pa.C.S.A. § 3802(a)(1), but acquitted him of a

violation of section 3802(b), operating a vehicle with a blood or breath

alcohol level of at least 0.10% but less than 0.16% within two hours after

the individual has driven or been in control of a vehicle.

       On January 16, 2014, the court imposed the guideline sentence for

second offenders of a five day term of incarceration plus license suspension

of twelve months, mandatory highway safety classes, and ignition interlock

for one year, plus fines and costs.            The court denied Appellant’s post-

sentence motion challenging the sufficiency and the weight of the evidence,

on February 27, 2014. This timely appeal followed.3

____________________________________________


2
  Later, after he consented to breathalyzer tests, Appellant’s blood alcohol
content (BAC) tested at .116% at 3:40 a.m., and a minute later at .119%,
at 3:41 a.m.
3
  Appellant filed a statement of errors on April 29, 2014. See Pa.R.A.P.
1925(b). The trial court filed its opinion on May 14, 2014, referencing its
previous opinion dated March 31, 2014 and filed on April 16, 2014, stating
(Footnote Continued Next Page)


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      Appellant presents two questions for our review:

            I.    Was the evidence presented at the trial of the
      Appellant legally sufficient to sustain his conviction of driving
      while under the influence of alcohol, under 75 Pa.C.S. § 3802(a)
      (1) [general impairment] where the Commonwealth failed to
      prove beyond a reasonable doubt that Appellant had imbibed a
      quantity of alcohol that rendered him incapable of safely
      operating a vehicle?

            II.   Taking into consideration all of the evidence
      presented at trial was the Appellant’s conviction at trial for
      driving while under the influence of alcohol, under 75 Pa.C.S.
      § 3802(a)(1) [general impairment] against the weight of the
      evidence?

(Appellant’s Brief, at 9).

      In his first question, Appellant challenges the sufficiency of the

evidence.    He argues generally that the Commonwealth failed to prove

beyond a reasonable doubt that he was incapable of safely operating a

motor vehicle due to mental or physical impairment from consumption of

alcohol. (See id. at 16). Specifically, he argues that expert testimony was

required; he also claims that the mere odor of alcohol, or blood shot eyes,

alone, or slurred speech, failed to prove his diminished capacity to drive.

(See id. at 17-43). We disagree.

      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.
                       _______________________
(Footnote Continued)

its reasons for denying Appellant’s motion to stay sentence under
Pennsylvania Rule of Appellate Procedure 1762(g). See Pa.R.A.P. 1925(a).



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     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.
     Nevertheless, the Commonwealth need not establish guilt to a
     mathematical certainty, and may sustain its burden by means of
     wholly circumstantial evidence.        Significantly, we may not
     substitute our judgment for that of the factfinder; if the record
     contains support for the convictions they may not be disturbed.
     So long as the evidence adduced, accepted in the light most
     favorable to the Commonwealth, demonstrates the respective
     elements of a defendant’s crimes beyond a reasonable doubt, his
     convictions will be upheld. 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. McKellick, 24 A.3d 982, 990 (Pa. Super. 2011), appeal

denied, 34 A.3d 828 (Pa. 2011) (citation omitted).

            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.

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


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          Thus, under our standard of review, and pertinent caselaw, it is

beyond       serious   dispute   that   the    Commonwealth   presented   sufficient

evidence to support Appellant’s conviction.           Appellant misconceives our

standard of review under which we view the evidence presented in the light

most favorable to the Commonwealth as verdict winner. Assessment of the

weight of the evidence was the province of the trial court as fact-finder. See

McKellick, supra at 990. Accordingly, Appellant’s sufficiency claim fails.

          Secondly, Appellant challenges the weight of the evidence.          (See

Appellant’s Brief, at 44). This claim is waived. Aside from an ill-conceived

attempt to incorporate his sufficiency argument by reference, and a

generalized invocation of due process supported by a single citation,

Appellant fails to develop any argument in support of his claim.4 (See id.).

Mere blanket assertions fail to develop an argument, resulting in a waiver of

the asserted claim.        See Commonwealth v. McMullen, 745 A.2d 683,

689 (Pa. Super. 2000), appeal denied, 761 A.2d 549 (Pa. 2000).

          Moreover, under applicable legal principles, the claim would not merit

relief.

                This Court has long recognized that a true weight of the
          evidence challenge concedes that sufficient evidence exists to
          sustain the verdict but questions which evidence is to be
          believed. Where the trial court has ruled on a weight claim, an
____________________________________________


4
  Palko v. Connecticut, 302 U.S. 319, 327 (1937). We note that the
United States Supreme Court overruled Palko in Benton v. Maryland, 395
U.S. 784, 794 (1969).



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      appellate court’s role is not to consider the underlying question
      of whether the verdict is against the weight of the evidence.
      Rather, our review is limited to whether the trial court palpably
      abused its discretion in ruling on the weight claim.

                                     *     *   *

                A new trial should be awarded when the jury’s
         verdict is so contrary to the evidence as to shock one’s
         sense of justice and the award of a new trial is imperative
         so that right may be given another opportunity to prevail.
         In this regard, [t]he evidence must be so tenuous, vague
         and uncertain that the verdict shocks the conscience of the
         court.

Commonwealth v. Thompson, 2014 WL 6948150, at *10 (Pa. Super. filed

December 10, 2014) (citations, quotation marks, and internal punctuation

omitted).

      Here, on independent review, the verdict does not shock the

conscience of this Court, and we discern no palpable abuse of discretion in

the trial court’s ruling denying the weight claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




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