J-S34040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

OLAJUWON N. JONES,

                            Appellant                 No. 2807 EDA 2016


             Appeal from the Judgment of Sentence June 24, 2016
              in the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0000206-2016

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 22, 2017

        Appellant, Olajuwon N. Jones, appeals from the judgment of sentence

imposed following his bench conviction of driving under the influence of

alcohol (DUI, high rate of alcohol) and failure to stop at a stop sign.1 We

affirm.

        The trial court aptly set forth the factual background of this matter as

follows:
              On June 18, 2015, at approximately 1:27[a.m.], while
        stationed in the area of 1919 Chichester Avenue, Upper
        Chichester, Delaware County, PA Officer Kevin J. Mitchell of the
        Upper Chichester Township Police Department noticed a silver
        Mercedes Benz traveling southbound making a very quick U-turn
        in the middle of the intersection and accelerating northbound.
        Officer Mitchell proceeded to follow the vehicle.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(b) and 3323(b), respectively.
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           The lone occupant driver of the vehicle, later determined
     to be [Appellant], made a right turn on Pleasant Avenue and
     accelerated toward the intersection of Vernon Avenue. At this
     intersection, [Appellant] failed to properly stop at a posted stop
     sign. [Appellant] then proceeded to quickly stop at a nearby
     roadway on Opal Avenue. [Appellant] exited the vehicle through
     the driver’s door and began to walk quickly toward a residence
     located at 2033 Opal Avenue, Upper Chichester, Delaware
     County, PA.

            Officer Mitchell, who had been following [Appellant] in his
     marked police vehicle without activating his emergency lights,
     exited his vehicle and attempted to make contact with
     [Appellant] on foot. After a failed attempt to make [Appellant]
     stop and talk to him, Officer Mitchell shined his flashlight on
     himself so that [Appellant] could see he was a police officer in
     uniform, and asked [Appellant] again to stop walking. Once
     [Appellant] had stopped, Officer Mitchell approached him and
     proceeded to ask [Appellant] where he was headed and for his
     identification.   [Appellant] provided Officer Mitchell with his
     [d]river’s [l]icense and stated that he was “going home,”
     confirming that he lived on 2033 Opal Avenue, Upper Chichester,
     Delaware County, PA. Since [Appellant]’s [d]river’s [l]icense
     indicated that he lived in Marcus Hook, Delaware County, Officer
     Mitchell made contact with the resident of 2033 Opal Avenue,
     and the resident confirmed that she knew [Appellant] and he
     was welcomed to spend the night at the residence.

           While speaking with [Appellant], Officer Mitchell detected a
     heavy odor of an alcoholic beverage emanating from his breath,
     as well as reddened and glassy eyes, dropping eyelids, and
     slurred speech. Suspecting that [Appellant] was intoxicated,
     Officer Mitchell requested [Appellant] to perform three field
     sobriety tests. [Appellant] failed to successfully perform the
     tests. Officer Mitchell proceeded to place [Appellant] under
     arrest and to transport him to the Upper Chichester Township
     Police Department headquarters.       At the Upper Chichester
     Township Police Department, after Officer Mitchell read to
     [Appellant] the PennDot DL-26 form, [Appellant] signed the form
     and agreed to submit to chemical testing. Officer Mitchell used
     an Intoximeter EC/IR to test [Appellant]’s level of alcohol on his
     breath and the result of that testing revealed a 0.116 percent
     Blood Alcohol Concentration (BAC).

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(Trial Court Opinion, 11/01/16, at 1-3) (record citations omitted).

       Appellant proceeded to a one-day bench trial on June 24, 2016, and

the trial court found him guilty of the above-mentioned offenses. On that

same date, the court sentenced Appellant to a term of not less than forty-

eight hours nor more than six months’ incarceration.        The court denied

Appellant’s timely post-sentence motion following a hearing on August 2,

2016. This timely appeal followed.2

       Appellant raises two issues for our review:

          1. [Did t]he trial court err[] in admitting the results of the
          breath test, as the 20-minute observation period was not
          followed[?]

          2. [] Whether the verdict was against the weight of the
          evidence when the Commonwealth presented evidence that
          was so seriously lacking any creditability to shock one’s sense
          of justice?

(Appellant’s Brief, at 4, 11).3

       In his first issue, Appellant argues that the trial court erred in

admitting evidence of his BAC because the twenty-minute observation

period, required under 67 Pa.Code § 77.24(a), did not occur prior to
____________________________________________


2
  Appellant filed a timely concise statement of errors complained of on
appeal on September 19, 2016. The trial court entered an opinion on
November 1, 2016. See Pa.R.A.P. 1925.
3
  Appellant’s statement of the questions involved quotes statutory law and
fails to “state concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail.” Pa.R.A.P. 2116.
Therefore, we have taken Appellant’s first question from the argument
section of his brief.



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administration of the breath test.       (See Appellant’s Brief, at 11-13).

Appellant maintains that Officer Mitchell’s testimony that this observation

requirement was met amounted only to speculation and conjecture, because

the officer did not note the specific times of the observation period, or use

the twenty-minute clock on the breath test machine to record the period.

(See id. at 12-13). This issue does not merit relief.

      Initially, we note that the failure to comply with the twenty–minute

observation rule goes to the admissibility of the blood alcohol evidence. See

Commonwealth v. Barlow, 776 A.2d 273, 275 (Pa. Super. 2001) (“The

Code’s requirements go to the trustworthiness of the evidence. If that issue

is raised, failure to comply does not permit the results to be admitted as

substantive evidence with lessened reliability[;] it precludes admission.”).

“Questions concerning the admission of evidence are left to the sound

discretion of the trial court, and we, as an appellate court, will not disturb

the trial court’s rulings regarding the admissibility of evidence absent an

abuse of that discretion.”   Commonwealth v. Sitler, 144 A.3d 156, 163

(Pa. Super. 2016) (en banc) (citations omitted).

      Under section 77.24(a) of the Pennsylvania Code, a police officer or a

certified breath test operator must observe a DUI suspect for a period of at

least twenty consecutive minutes immediately prior to the administration of

the breath test. The provision states:

      (a) Observation. The person to be tested with breath test
      equipment shall be kept under observation by a police officer or
      certified breath test operator for at least 20 consecutive minutes

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     immediately prior to administration of the first alcohol breath
     test given to the person, during which time the person may not
     have ingested alcoholic beverages or other fluids, regurgitated,
     vomited, eaten or smoked. Custody of the person may be
     transferred to another officer or certified breath test operator
     during the 20 consecutive minutes or longer period as long as
     the person to be tested is under observation for at least 20
     consecutive minutes prior to initial administration of the alcohol
     breath test.

67 Pa.Code § 77.24(a).

     “In [Barlow, supra], we stated the Commonwealth must prove, by a

preponderance   of   the   evidence,    that   an   individual   subjected   to   a

breathalyzer test did not ingest anything for the [twenty] minutes prior to

administration of the test, but that ‘observation,’ as used in 67 Pa.Code §

77.24(a), did not mean ‘eyes on his mouth 100% of the time.’”

Commonwealth v. Snell, 811 A.2d 581, 586 (Pa. Super. 2002), appeal

denied, 820 A.2d 162 (Pa. 2003).

     Here, the record reflects that Officer Mitchell detained Appellant

outside of the Opal Avenue residence at about 1:30 a.m., and the drive to

the police station following Appellant’s arrest took five to seven minutes.

(See N.T. Trial, 6/24/16, at 10, 28-29, 50). Officer Mitchell testified that,

upon arrival at the police station, Appellant was “continuously in [his]

custody[.]” (Id. at 29). The officer further stated, “[Appellant] was always

in my presence especially at the police station [and] he was observed by me

for at least 30 minutes” prior to administration of the first breath test, at

2:46 a.m.   (Id.; see id. at 34).      On cross-examination, Officer Mitchell

acknowledged that he did not use the clock on the breath test machine to


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record the twenty-minute observation period, nor did he note the exact

times the observation period began and ended.           (See id. at 60-61).

However, he testified that, as a certified breath test operator who had

administered hundreds of tests, he was well aware of the twenty-minute

observation rule, and he agreed that it is an important procedure that police

must follow. (See id. at 31-32, 61-62). Officer Mitchell reiterated that he

followed the proper procedures in this case, with the observation period

starting “at least [twenty] minutes prior to the time that the test was given.”

(Id. at 61).

      Thus, the record demonstrates that Officer Mitchell detained Appellant

at about 1:30 a.m., and administered the first breath test at 2:46 a.m.

During the intervening time, Officer Mitchell arrested Appellant and

transported him to the police station, where the officer unequivocally

testified that Appellant was in his continuous custody during the requisite

observation period prior to administration of the test.     Upon review, we

conclude the Commonwealth established, by a preponderance of the

evidence, that Officer Mitchell sufficiently observed Appellant for the twenty

minutes prior to the test, in compliance with the regulation, and the trial

court did not abuse its discretion in admitting evidence of Appellant’s BAC.

See Snell, supra at 586; see also Sitler, supra at 163.             Therefore,

Appellant’s first issue does not merit relief.

      Appellant next challenges the weight of the evidence supporting his

DUI conviction, arguing the breath test machine was not functioning

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properly, rendering the test results unreliable. (See Appellant’s Brief, at 14-

18).4 Appellant contends that because the machine needed servicing and a

replacement component in August 2015, the June 2015 test results in

instant case are untrustworthy. (See id. at 17). This issue does not merit

relief.

          Our standard of review is as follows:

                        A verdict is not contrary to the weight of the
                evidence because of a conflict in testimony or
                because the reviewing court on the same facts might
                have arrived at a different conclusion than the fact[-
                ]finder. Rather, a new trial is warranted only when
                the . . . verdict is so contrary to the evidence that it
                shocks one’s sense of justice and the award of a new
                trial is imperative so that right may be given another
                opportunity to prevail. Where, as here, the judge
                who presided at trial ruled on the weight claim
                below, an appellate court’s role is not to consider the
                underlying question of whether the verdict is against
                the weight of the evidence. Rather, appellate review
                is limited to whether the trial court palpably abused
                its discretion in ruling on the weight claim.

               One of the least assailable reasons for granting or denying
          a new trial is the lower court’s determination that the verdict
          was or was not against the weight of the evidence and that new
          process was or was not dictated by the interests of justice.
          Thus, only where the facts and inferences disclose a palpable
          abuse of discretion will the denial of a motion for a new trial
          based on the weight of the evidence be upset on appeal.



____________________________________________


4
 Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).



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Commonwealth v. Morales, 91 A.3d 80, 91–92 (Pa. 2014), cert denied,

135 S.Ct. 1548 (2015) (emphasis original; citations omitted).

      Here,    Officer    Mitchell    testified   that   the   breath   test    machine

successfully tested Appellant’s breath, and he explained that the device goes

through a series of internal checks to ensure accuracy before a sample is

provided and in between samples.            (See N.T. Trial, at 34-35, 79).           Police

Officer Jason Yaletchko, the certified custodian of the breath test machine

who had performed the annual and monthly accuracy and calibration tests

on it for four years as of the time of trial, testified that the Commonwealth of

Pennsylvania has certified and approved it as a breath-testing device. (See

id. at 70-72). Officer Yaletchko explained that if the machine has any type

of malfunction or if contamination is present in the machine, “[i]t will abort

itself[,] . . . take itself out of service . . . [and] say removed from service[]”

because of its software design. (Id. at 77; see id. at 84). He stated that,

in his opinion, “this device [was] properly serviced, calibrated and accurate

at the time [Appellant] took the test[.]” (Id. at 78-79).

      The trial court, as fact-finder, found the officers’ testimony credible.

(See Trial Ct. Op., at 11).           It determined that “[t]he device was not

contaminated     at      the   time    [Appellant’s]     alcohol   breath      test    was

administered[,]” and that “[t]he device was properly serviced, calibrated and

accurate at the time Officer Mitchell administered . . . the alcohol breath

test[.]” (Id. at 10-11). After review, we conclude that the trial court did

not palpably abuse its discretion in ruling on Appellant’s weight claim. See

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Morales, supra at 91-92.      Therefore, Appellant’s final issue on appeal

merits no relief. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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