J-A08004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOHN ALLEN MOODY,

                            Appellant               No. 1082 MDA 2014


         Appeal from the Judgment of Sentence Entered May 19, 2014
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0002479-2013


BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 15, 2015

       Appellant, John Allen Moody, appeals from the judgment of sentence

entered following his conviction of driving under the influence (“DUI”) with a

blood alcohol content (“BAC”) between .08% and .10%, 75 Pa.C.S. §

3802(a)(2). We affirm.

       We summarize the facts of this case as follows.     On the evening of

February 23, 2013, Officer Mark Jackson of the Lower Windsor Township

Police Department observed Appellant’s truck making a turn without using a

turning signal. Officer Jackson stopped the truck and upon approaching the

vehicle, noticed a strong odor of alcohol. Appellant was the only person in

the truck. Officer Jackson asked Appellant to exit and immediately smelled
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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alcohol on Appellant’s person. Subsequently, Appellant performed poorly on

two field sobriety tests.     Officer Jackson believed that Appellant was

intoxicated to a degree that rendered him incapable of safe driving.

Appellant agreed to submit to a chemical blood test at York Hospital.

Thereafter, Officer Jackson received a laboratory report with the results

indicating that at the time Appellant’s blood was tested, his BAC was .216%.

      Based upon the results of the laboratory report, in conjunction with his

personal observations, Officer Jackson filed DUI charges against Appellant.

Following a trial on April 1 and 2, 2014, a jury convicted Appellant of DUI

under 75 Pa.C.S. § 3802(a)(2) (BAC between .08% and .10%). On May 19,

2014, the trial court sentenced Appellant to an aggregate term of

incarceration of eleven and one-half to twenty-three months, followed by

two years of probation. Appellant filed a timely post-sentence motion, which

the trial court denied. This appeal followed.

      Appellant presents the following issues for our review:

      1. Whether there was insufficient evidence to support the jury’s
      finding of guilt on count 5, DUI blood alcohol concentration
      (BAC) between .08% and .10%, because the Commonwealth
      failed to present any evidence that [Appellant’s] BAC was
      between .08% and .10%?

      2. Whether the jury’s verdict as to count 5 is against the weight
      of the evidence when the Commonwealth failed to present any
      credible evidence to support a finding that [Appellant’s] BAC was
      between .08% and .10%?

Appellant’s Brief at 5.




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      In his first issue, Appellant argues that there was insufficient evidence

to   support   the   verdict.   Specifically,   Appellant   contends   that   the

Commonwealth failed to present evidence to establish that his BAC was

between .08% and .10%, as required for a conviction under 75 Pa.C.S. §

3802(a)(2).    Appellant notes that the forensic toxicologist testified that

Appellant’s BAC was .216%, and there was no evidence that could reduce

his BAC from .216% in order to support the conviction.        Upon review, we

conclude that this issue lacks merit.

      When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.          Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted).       “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.”     Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)). The Commonwealth need not establish guilt

to a mathematical certainty, and it may sustain its burden by means of

wholly circumstantial evidence.         Id.   In addition, this Court may not

substitute its judgment for that of the fact finder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the


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evidence presented.   Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

     The Pennsylvania Crimes Code defines the offense of DUI as follows:

     § 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.

           (2) 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 alcohol concentration in the individual’s
           blood or breath is at least 0.08% but less than
           0.10% within two hours after the individual has
           driven, operated or been in actual physical control of
           the movement of the vehicle.

     (b) High rate of alcohol.— 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 alcohol concentration in the individual’s blood or breath is at
     least 0.10% but less than 0.16% within two hours after the
     individual has driven, operated or been in actual physical control
     of the movement of the vehicle.

     (c) Highest rate of alcohol.— 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 alcohol concentration in the individual’s blood or breath is
     0.16% or higher within two hours after the individual has driven,
     operated or been in actual physical control of the movement of
     the vehicle.

75 Pa.C.S. § 3802.

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        Recently, in Commonwealth v. Houck, 102 A.3d 443 (Pa. Super.

2014), which is a case procedurally similar to the one presently before us, 1

we summarized the law concerning verdicts of lesser included offenses as

follows:

              Established Pennsylvania law states a defendant can be
        convicted of a crime that was not actually charged when the
        uncharged offense is a lesser-included offense of the charged
        crime. See Commonwealth v. Sims, 591 Pa. 506, 919 A.2d
        931 (2007) (citing Commonwealth v. Carter, 482 Pa. 274, 393
        A.2d 660 (1978)). “As long as the conviction is for a lesser-
        included offense, the defendant will have been put on notice of
        the charges against him and can adequately prepare a defense.”
        Commonwealth v. Reese, 725 A.2d 190, 191 (Pa. Super.
        1999), appeal denied, 559 Pa. 716, 740 A.2d 1146 (1999). At
        the heart of this issue is whether the defendant had fair notice
        and an opportunity to present an adequate defense.
        Commonwealth v. Pemberth, 339 Pa. Super. 428, 489 A.2d
____________________________________________


1
    We set forth the procedural history in Houck as follows:

              Instantly, the Commonwealth charged Appellant with one
        count of DUI under Section 3802(c), plus related summary
        offenses, and presented evidence that Appellant’s Breathalyzer
        results indicated a BAC of 0.17% within two hours of the traffic
        stop. At trial, the defense disputed the BAC level by challenging
        the accuracy of the testing machine because it had not been
        adjusted for daylight savings time.         Counsel sought to
        characterize the time calibration as suggestive of a malfunction
        of the testing equipment to call into question the BAC
        measurement. The court’s unopposed jury instructions allowed
        the jury to decide if the Commonwealth had proved Appellant
        was DUI and, if so, to select from one of three separate BAC
        ranges according to the evidence presented at trial. The jury
        found Appellant guilty of DUI with a BAC between 0.10% and
        0.159%, a range consistent with Section 3802(b). Appellant did
        not object to the verdict when entered.

Houck, 102 A.3d at 451-452.



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     235, 237 (1985). “This end has frequently been achieved in one
     of two ways: either the Commonwealth will give an accused
     express notice by charging him with the less culpable offense or
     it will give him implicit notice through the information where the
     proven, but uncharged crime is a lesser-included offense of the
     charged, but unproven, offense.” Id.

Houck, 102 A.3d at 449-450.

     The Court in Houck then described the various approaches to

evaluating lesser-included offenses in Pennsylvania as follows:

           There are “three varying approaches” to determine what
     constitutes a lesser-included offense: the statutory-elements
     approach, the cognate-pleadings approach, and the evidentiary
     approach. Sims, supra at 517, 919 A.2d at 938. The Supreme
     Court summarized these approaches as follows:

           The statutory-elements approach began at common
           law and is used in the federal courts and in various
           state courts. Under this approach, the trial court is
           required to identify the elements of both the greater
           charge and the lesser charge and determine whether
           it is possible to commit the greater offense without
           committing the lesser offense. If it is not possible,
           then the lesser offense is considered a lesser-
           included offense of the greater crime.

           Pursuant to the cognate-pleading approach, there is
           no requirement that the greater offense encompass
           all of the elements of the lesser offense. Rather, it is
           sufficient that the two offenses have certain
           elements in common. The focus of this approach is
           on the pleadings as the trial court must determine
           whether the allegations in the pleadings charging the
           greater offense include allegations of all of the
           elements of the lesser offense. If so, the lesser
           charge is considered a lesser-included offense of the
           greater charge. As this approach centers on the
           pleadings of the case, notice and due process
           violations are not generally grave concerns.




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           Finally, the evidentiary approach looks to the actual
           evidence established at trial to assess the
           relationship between the greater and lesser charges.
           The lesser offense may have elements that are
           distinct from the greater offense and still be
           considered a lesser-included offense, as long as the
           evidence presented at trial to prove the greater
           offense actually establishes the elements of the
           lesser offense.     Generally, courts adopting this
           approach require that the same underlying conduct
           establish the elements of both offenses.

     Sims, supra at 517-518, 919 A.2d at 938. Sims held the
     defendant could be convicted of an “attempt” crime, although
     the Commonwealth had charged the defendant only with the
     completed offense, because the attempt crime was a cognate
     offense of the completed crime. Id. at 524, 919 A.2d at 942.
     Sims represents the proposition that a jury can convict a
     defendant of an uncharged lesser-included offense but not of
     an uncharged greater offense. Id. See, e.g., Commonwealth
     v. Haight, 50 A.3d 137 (Pa. Super. 2012) (affirming conviction
     for uncharged Section 3802(b) as cognate offense of charged
     Section 3802(c), where defense strategy called into question
     accuracy of blood test results; defense strategy led to conviction
     under Section 3802(b)); Commonwealth v. Sinclair, 897 A.2d
     1218, 1222 (Pa. Super. 2006) (ensuring consistency in case law
     to declare Section 3802(b) as cognate offense of Section
     3802(c), where case arose from same facts already known to
     defendant and offenses involved same basic elements).

Houck, 102 A.3d at 450-451 (emphasis in original).

     Thereafter, the Houck Court set forth the following with regard to

Pennsylvania’s DUI statute and lesser included offenses:

           In general, Section 3802(c) forbids an individual to drive,
     operate or be in actual physical control of the movement of a
     vehicle after imbibing a sufficient amount of alcohol such that
     the alcohol concentration in the individual’s blood or breath is
     0.16% or higher within two hours after the individual has driven,
     operated or been in actual physical control of the movement of
     the vehicle. See 75 Pa.C.S.A. § 3802(c). As the relevant
     statute makes clear, Section 3802(c) includes all of the elements

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       of Section 3802(b), notwithstanding the ranges provided in the
       two sections, because a BAC of 0.16% necessarily subsumes all
       lesser BAC ranges as set forth in Section 3802(b) and Section
       3802(a)(2). In other words, an individual with a BAC of 0.16%
       or above will unavoidably have a BAC of at least 0.08% to
       0.159%. Applying the three methods of Sims, supra, under the
       statutory elements approach to lesser-included offenses, it is not
       possible to commit a Section 3802(c) offense without committing
       a Section 3802(b) offense.       Under the cognate pleading
       approach to lesser-included offenses, an allegation of Section
       3802(c) includes the elements of Section 3802(b).         Finally,
       under the evidentiary approach to lesser-included offenses, we
       look to the actual evidence established at trial to assess the
       relationship between the greater charge and the lesser offense.
       Although the lesser offense of Section 3[802](b) may call for a
       BAC range lower than the range in the greater offense of Section
       3802(c), Section 3802(b) can still be considered a lesser-
       included offense, because the evidence at trial to prove the
       Section 3802(c) offense established the elements of the Section
       3802(b) offense. Consistent with courts adopting this approach,
       here the same underlying conduct established the elements of
       both offenses. See Sims, supra. The jury was therefore free
       to convict [Houck] under Section 3802(b), even where the
       Commonwealth charged only Section 3802(c), as the record
       evidence at trial reasonably supported a verdict on the lesser
       offense of Section 3802(b). See Haight, supra.

Houck, 102 A.3d 452-453.            In essence, the Court in Houck held that an

individual charged with DUI with a BAC above .16% can be found guilty of a

lesser-included BAC, such as in this case where the jury convicted Appellant

of having a BAC between .08% and .10%, even though that lesser-included

crime was never contained in the charging documents.2            Therefore, the

decision in Houck is binding precedent upon this Court.

____________________________________________


2
  We note that in his reply brief filed with this Court, Appellant asserts that
the holding in Houck is merely dicta, and therefore lacks precedential value.
(Footnote Continued Next Page)


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      Here, our review of the certified record reflects the Commonwealth

presented evidence in the form of blood testing, which established that

Appellant had a BAC of .216%.             N.T., 4/1-2/14, at 121-149. Accordingly,

this evidence was sufficient for the jury to return a verdict of guilty of DUI

with a BAC between .08% and .10%.                 Hence, Appellant’s contrary claim

lacks merit.

      In his second issue, Appellant argues that the verdict was against the

weight of the evidence. Appellant argues that the BAC result is unreliable

because Appellant’s whole blood was tested, the Commonwealth had only

the forensic toxicologist testify, and the toxicologist never actually tested

Appellant’s blood sample.         Rather, the toxicologist reviewed the work that

other laboratory employees had performed.




                       _______________________
(Footnote Continued)

To support this claim, Appellant relies upon language that Houck “arguably
waived for purposes of [the] appeal his claim of error respecting the
verdict,” Houck 102 A.3d at 454, as Houck “did not make a
contemporaneous objection to the jury instruction, the verdict sheet, or the
verdict.” Id. We disagree with Appellant’s interpretation of the holding in
Houck as being merely dicta due to this language.

      Moreover, to the extent Appellant would have us ignore the holding in
Houck, we observe that we must follow the decisional law established by
our own Court. Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa.
Super. 2009). Unless or until Houck is overturned by an en banc panel of
this Court, or by a decision of the Pennsylvania Supreme Court, it continues
to be viable precedent. Id.



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     In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

            A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa.    308,    319,    744    A.2d   745,     751-[7]52    (2000);
     Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
     1189 (1994). A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Widmer, 560
     A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial
     judge is to determine that ‘notwithstanding all the facts, certain
     facts are so clearly of greater weight that to ignore them or to
     give them equal weight with all the facts is to deny justice.’” Id.
     at 320, 744 A.2d at 752 (citation omitted). It has often been
     stated that “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.” Brown, 538 Pa.
     at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question
           of whether the verdict is against the weight of the
           evidence. Brown, 648 A.2d at 1189. Because the
           trial judge has had the opportunity to hear and see
           the evidence presented, an appellate court will give
           the gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial
           court’s determination that the verdict is against the
           weight of the evidence.          Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
           One of the least assailable reasons for granting or
           denying a new trial is the lower court’s conviction
           that the verdict was or was not against the weight of



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            the evidence and that a new trial should be granted
            in the interest of justice.

      Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
      added).

             This does not mean that the exercise of discretion by the
      trial court in granting or denying a motion for a new trial based
      on a challenge to the weight of the evidence is unfettered. In
      describing the limits of a trial court’s discretion, we have
      explained:

            The term “discretion” imports the exercise of
            judgment, wisdom and skill so as to reach a
            dispassionate conclusion within the framework of the
            law, and is not exercised for the purpose of giving
            effect to the will of the judge. Discretion must be
            exercised on the foundation of reason, as opposed to
            prejudice, personal motivations, caprice or arbitrary
            actions.   Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable
            or where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
      [11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      Our review of the record reflects that the trial court addressed

Appellant’s challenge to the weight of the evidence and determined that it

lacked merit. Specifically, the trial court stated the following with regard to

Appellant’s challenge to the weight of the evidence supporting his conviction

of DUI:

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            Next, the Appellant asserts that the jury’s guilty verdict
      regarding the DUI, First Tier, is against the weight of the
      evidence presented during trial. The Court disagrees.

                                  ***

             The Appellant’s argument that the verdict is against the
      weight of the evidence is without merit. At the jury trial,
      defense counsel posed no objection to the Court reading the jury
      instructions specifically permitting it to “make a determination as
      to what [Appellant’s] blood-alcohol content was.” N.T., Trial
      4/1-4/2/14, p. 243. Three BAC ranges were listed on the verdict
      slip provided to the jury: .08% to .099%, .10% to .159%, and
      .16% or above. Id. “If you do find that the Commonwealth has
      sustained its burden” the jury instructions continued, “then you'll
      drop down and make a determination by an X as to what range
      you find [Appellant’s] blood-alcohol content.” Id.

            The jury is the ultimate finder of fact at trial. Although the
      testimony elicited from the Commonwealth’s witness revealed a
      BAC of .216%, the jury is empowered with the ability to weigh
      the evidence and testimony and determine what weight to give
      the testimony of the expert in regard to the BAC. In this case,
      the jury determined that the expert opinion was sufficient to find
      the Appellant guilty of driving while his BAC was between .08%
      and .099%. Therefore, the Court finds that this verdict does not
      go against the weight of the evidence.

Trial Court Opinion, 8/29/14, at 4-5.

      The jury, sitting as the finder of fact, was free to believe all, part, or

none of the evidence against Appellant, as was its right. The jury weighed

the evidence and concluded Appellant perpetrated the crime of DUI under 75

Pa.C.S. § 3802(a)(2). This determination is not so contrary to the evidence

so as to shock one’s sense of justice.    We decline Appellant’s invitation to

assume the role of fact finder and to reweigh the evidence. Accordingly, we

conclude that the trial court did not abuse its discretion in determining


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Appellant’s weight of the evidence claim lacked merit. Thus, this claim fails

to provide Appellant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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