J-A08029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEFFREY OLSZEWSKI

                            Appellant                  No. 1416 MDA 2014


             Appeal from the Judgment of Sentence of June 3, 2014
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0003040-2011


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

MEMORANDUM BY WECHT, J.:                                FILED JUNE 15, 2015

        Jeffrey Olszewski appeals his June 3, 2014 judgment of sentence,

which was imposed after a panel of this Court vacated one of Olszewski’s

convictions for driving under the influence of alcohol (“DUI”) and remanded

this case to the trial court for resentencing on a remaining DUI count. See

Commonwealth v. Olszewski, No. 802 MDA 2012, slip op. at 1-2, 7 (Pa.

Super. Dec. 20, 2012).         After Olszewski was resentenced, he filed timely

post-sentence motions, in which he challenged, inter alia, the sufficiency of

the evidence to prove him guilty of the remaining DUI count. The learned

trial court concluded that this issue already had been resolved in Olszewski’s

first appeal, and declined to review it a second time. For the reasons stated

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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herein, we disagree with the trial court. Nonetheless, because a challenge to

the sufficiency of the evidence is a question of law, we review Olszewski’s

sufficiency claim. Finding that claim to be unsuccessful, we affirm.

      In Olszewski’s initial appeal to this Court, we quoted the trial court’s

verbal recitation of the court’s finding of facts as follows:

      On July 2nd, 2011, shortly after midnight, Officer Michael
      Marshall was dispatched to an accident scene involving a
      motorcycle which was being operated by [Olszewski].            The
      officer came about the scene, noticed injuries to [Olszewski] and
      advised [Olszewski] that an ambulance was on its way.
      [Olszewski] said he would refuse medical treatment. The officer
      cancelled the ambulance. Thereafter, the officer noticed the
      more severe injuries to [Olszewski] and reordered the
      ambulance to take [Olszewski] from the scene for medical
      treatment. The delay in the arrival of the ambulance was caused
      by the initial refusal of [Olszewski] to accept medical treatment.

      The officer noted a strong odor of intoxicating beverage on
      [Olszewski’s] breath, [] and disoriented and confused behavior.
      [Olszewski] was transported to the Geisinger Wyoming Valley
      Hospital. The officer remained at the scene to clear the accident
      scene. [T]here were other officers available to the officer to
      assist in clearing the accident scene, however, the amount of
      time the officer spent at the accident scene was reasonable
      under the circumstances.

      The officer proceeded to Geisinger Wyoming Valley Hospital and
      requested that [Olszewski] submit to a blood alcohol test and
      [Olszewski] agreed. The officer read Mr. Olszewski the so-called
      O’Connell Warnings and determined that Mr. Olszewski was
      unable to execute the form and indicated that the form could not
      be completed for that reason. The officer was reasonable in this
      regard given the medical treatment. The officer immediately
      requested that the blood be drawn for Mr. Olszewski, that the
      request was within the two hours required and [] within a
      reasonable time when which to have his request complied with –
      with the two hours.       However, the necessity of medical
      treatment and the availability of a phlebotomist, which are not



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       within the control of the officer, delayed the test beyond the two
       hour time limit.

Id. at 3-4.     The prior panel noted that Olszewski’s blood eventually was

drawn two hours and forty minutes after he operated the motorcycle. Id. at

4. Olszewski’s blood alcohol content was reported as .198. Id. at 6.

       Olszewski was charged with two counts of DUI: (1) DUI—highest rate

of alcohol (75 Pa.C.S. § 3802(c)), and (2) DUI—general impairment (75

Pa.C.S. § 3802(a)).       Olszewski also was charged with careless driving (75

Pa.C.S. § 3714) and driving without a valid motorcycle license (75 Pa.C.S. §

1512). Prior to trial, Olszewski filed a motion to suppress the results of the

blood test, in which he argued that the results were inadmissible because

the test was taken over two hours after he drove the motorcycle and

because the Commonwealth could not demonstrate good cause for the

delay. See 75 Pa.C.S. § 3802(g)(1).1 The trial court denied the motion.
____________________________________________


1
       Section 3802(g) provides, in pertinent part, as follows:

       Notwithstanding the provisions of subsection (a), (b), (c), (e), or
       (f), where alcohol or controlled substance concentration in an
       individual’s blood or breath is an element of the offense,
       evidence of such alcohol or controlled substance concentration
       more than two hours after the individual has driven, operated or
       been in actual physical control of the movement of the vehicle is
       sufficient to establish that the element of the offense under the
       following circumstances:

       (1)    where the Commonwealth shows good cause explaining
              why the chemical test sample could not be obtained within
              two hours.

75 Pa.C.S. § 3802(g)(1).



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Olszewski proceeded to a stipulated bench trial, after which the trial court

found Olszewski guilty on both DUI counts and also on the count for driving

without a valid motorcycle license.            The trial court acquitted Olszewski of

careless driving.

       Olszewski was sentenced to twelve months’ intermediate punishment,

including ninety days of house arrest.            Olszewski also was assessed fines

and court costs.      Olszewski then filed an appeal with this Court.         In that

appeal, Olszewski argued that the trial court erred in denying his

suppression motion, and that the blood alcohol content evidence should

have been ruled inadmissible.          We agreed with him.       Concluding that the

blood draw occurred after two hours had elapsed from when he drove the

motorcycle and that the Commonwealth could not demonstrate good cause

for the delay, we vacated his DUI—highest rate of alcohol conviction, and

remanded for resentencing on the DUI—general impairment and driving

without a valid motorcycle license counts. Olszewski, supra, at 4-7.2

       On June 3, 2014, the trial court resentenced Olszewski on the DUI—

general impairment count to six months’ intermediate punishment, thirty

days of which were ordered to be served as house arrest.              Olszewski also



____________________________________________


2
       The Commonwealth filed a petition for allowance of appeal with the
Supreme Court of Pennsylvania. On March 5, 2014, that Court denied the
petition. Commonwealth v. Olszewski, No. 591 MAL 2013 (Pa. March 5,
2014) (per curiam).



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was ordered to pay fines and costs for the DUI—general impairment and

driving without a valid motorcycle license convictions.

      On June 13, 2014, Olszewski filed a post-sentence motion in which he

argued that, without the blood alcohol content evidence that was suppressed

by this Court, the evidence also was insufficient to convict him of DUI—

general impairment. Olszewski maintained, inter alia, that the trial court, at

least in part, relied upon the inadmissible evidence in rendering its verdict

for DUI—general impairment.      On July 23, 2014, the trial court denied the

post-sentence motion.      The court held that the arguments raised by

Olszewski in his post-sentence motion were decided in his first appeal by this

Court, or otherwise were waived because Olszewski did not raise those

issues in his first appeal. See Memorandum and Order, 7/23/2014, at 1.

      On August 21, 2014, Olszewski filed a notice of appeal. The trial court

did not order, and Olszewski did not file, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Moreover, the trial

court did not file an opinion pursuant to Pa.R.A.P. 1925(a).

      Olszewski raises two questions for our consideration:

      1. Whether, following the suppression of his blood alcohol test
         by the Superior Court, [Olszewski] was entitled to review by
         the trial court of the sufficiency of the remaining evidence to
         support his conviction for violating 75 Pa.C.S. § 3802(a)(1),
         and whether it was a violation of his due process rights for
         the trial court to fail to conduct such a review in denying his
         post-sentence motion?

      2. Whether, following the suppression of his blood alcohol test
         by the Superior Court, sufficient other evidence remained in


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           the record to support [Olszewski’s] conviction for violating 75
           Pa.C.S. § 3802(a)(1) beyond a reasonable doubt?

Brief for Olszewski at 2.

        As is evident from Olszewski’s first stated issue, the initial inquiry that

we must confront is whether the trial court erred in concluding that we had

already resolved the issue. That is to say, was the issue Olszewski raised in

his post-sentence motion addressed in his first appeal?           Did Olszewski waive

the issue by failing to raise it in the first appeal?

        We agree with Olszewski, and we hold that the trial court erred in both

instances.     First, we decline to accept the trial court’s assertion that

Olszewski’s sufficiency of the evidence challenge was decided by this Court

in Olszewski’s first appeal.         We have reviewed our prior memorandum

decision thoroughly.3 Nowhere in that decision did the prior panel address

the sufficiency of the evidence regarding the DUI—general impairment

conviction, with or without the inadmissible evidence. The panel addressed

only Olszewski’s claim that the blood alcohol evidence was inadmissible.

        Second, the trial court also incorrectly found that Olszewski did not

raise the issue in the first appeal. As a general matter, after a remand from

this Court, if a later appeal ensues, “[o]n that appeal, the party may also

raise    any   issues   presented      but     undecided   in   the   instant   appeal.”

____________________________________________


3
      A copy of the memorandum is in the certified record. Thus, we have
no trouble concluding that the trial court had a copy of that memorandum
when it concluded that this Court had ruled upon Olszewski’s claim.



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Commonwealth v. Moyer, 447 A.2d 1034, 1037 (Pa. Super. 1982) (citing

Commonwealth           v.   Twiggs,      331     A.2d   440   (Pa.   1975)).   The

Commonwealth concedes that Olszewski raised his sufficiency claim in the

initial appeal.    See Brief for Commonwealth at 6.            Thus, the claim was

presented.4 We simply did not rule upon that claim.

       Nonetheless, even though we agree with Olszewski that the trial court

erred, he is not entitled to any form of relief for those errors. Challenges to

the sufficiency of the evidence are questions of law, subject to plenary

review.     Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super.

2014), appeal denied, 109 A.3d 678 (Pa. 2015) (citing Commonwealth v.

Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)). As such, even though

the trial court did not address the issue, our standard of review permits us

to review the claim, especially because both parties have addressed the

merits of the issue.

       When reviewing a sufficiency challenge:

       we must determine whether, viewing the evidence in the light
       most favorable to the Commonwealth as verdict winner, together
       with all reasonable inferences therefrom, the trier of fact could
____________________________________________


4
       The Commonwealth contends that, because Olszewski’s argument in
the first appeal was short and unsupported by applicable case law, it should
be deemed waived, and, therefore, not actually presented for purposes of
this appeal. See Brief for Commonwealth at 6-8. We disagree. The above
stated standard only requires that the argument be presented in the prior
appeal. In this case, it was. That it may have been inadequately supported
at that time does not change the fact that it was, in fact, presented in that
appeal.



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     have found that each and every element of the crimes charged
     was established beyond a reasonable doubt. We may not weigh
     the evidence and substitute our judgment for the fact-finder. To
     sustain a conviction, however, the facts and circumstances which
     the Commonwealth must prove must be such that every
     essential element of the crime is established beyond a
     reasonable doubt. Lastly, the finder of fact may believe all,
     some or none of a witness’s testimony.

Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations

omitted).

     Olszewski was convicted of DUI—general impairment pursuant to 75

Pa.C.S. § 3802(a)(1), which provides as follows:

     (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. § 3802(a)(1).      “[S]ubsection 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). In Segida, the

Pennsylvania Supreme Court explained the types of evidence that may be

offered by the Commonwealth to prove a person guilty under subsection

3802(a)(1):



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      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
      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.

Id. at 879.

      Instantly, we must consider whether the evidence could enable the

fact finder to convict Olszewski of DUI—general impairment.            Olszewski’s

principal argument is that the evidence for DUI—general impairment is

insufficient   without   the   blood   alcohol   content   evidence.    Olszewski

apparently believes that our holding in the prior appeal extended to his

conviction for DUI—general impairment.           However, as our Supreme Court

noted in Segida, “the two hour time limit for measuring blood alcohol level

does not apply” to DUI—general impairment cases. Id. In other words, the



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two-hour time limit that we found to have been violated in Olszewski’s prior

appeal only applied to his DUI—highest rate of alcohol conviction.               Thus,

Olszewski’s belief that the evidence should be evaluated for sufficiency

purposes as to his DUI—general impairment conviction without the blood

alcohol evidence is incorrect.

      Even though we are not required to ignore the blood alcohol content

evidence, we nonetheless conclude that the evidence was sufficient to

sustain his DUI—general impairment conviction even without that evidence.

The remaining evidence, viewed in the light most favorable to the

Commonwealth, is as follows.         On July 2, 2011, at approximately 12:07

a.m., Officer Marshall responded to a motorcycle accident on Crestwood

Road in Luzerne County. When he arrived, he observed Olszewski standing

near a rolled over motorcycle. Olszewski had one shoe on and one shoe off

at the time, and was bleeding from his nose. Olszewski admitted to driving

the motorcycle at the time of the accident.          Olszewski stated that, while

driving, he had veered off the road for some unknown reason. While Officer

Marshall   was   talking   to    Olszewski,   he   noticed   blood   draining    from

Olszewski’s leg and saturating his sock.

      While talking to Olszewski, Officer Marshall detected a strong odor of

alcohol coming from Olszewski.        The officer also noted that Olszewski had

glassy eyes and acted very confused about what had occurred.                    Officer

Marshall declined to subject Olszewski to field sobriety tests due to the

injury to his leg and the confusion Olszewski was exhibiting. Having made

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over two hundred DUI arrests in his career, Officer Marshall opined that

Olszewski was unable to safely operate a motor vehicle.

     Olszewski focuses his argument upon the facts that Officer Marshall

did not testify that Olszewski was unsteady or unstable on his feet, and that

Officer Marshall did not observe Olszewski slurring his speech in any way.

These facts, in addition to the absence of field sobriety tests, demonstrate

the insufficiency of the evidence, according to Olszewski.       We readily

acknowledge that the evidence in this case is not overwhelming. Olszewski

correctly points out that some of the traditional elements of a DUI

prosecution, i.e. slurred speech and field sobriety tests, are absent in this

case. However, as alluded to in Segida, there is no checklist of facts that

the Commonwealth must complete to prove someone guilty of DUI—general

impairment. Rather, we must assess the totality of the circumstances, and

the various points of proof that were in fact offered by the Commonwealth,

and view that quantum of evidence in the light most favorable to the

Commonwealth.      Having done so, and even if we give no attention

whatsoever to the blood alcohol content evidence, we conclude that the

evidence was sufficient to enable a fact finder to convict Olszewski of DUI—

general impairment.      The evidence demonstrates that, after having

consumed an alcoholic beverage, Olszewski drove the motorcycle.           He

admitted not only to driving the motorcycle, but also to driving it off the

road, although he could not state that what caused him to drive off the road.

These facts, combined with his glassy eyes and confusion, were sufficient to

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enable a fact finder to conclude that Olszewski drove the motorcycle after

imbibing alcohol and that the consumption of alcohol rendered him incapable

of safely operating the motorcycle.         Consequently, the evidence was

sufficient to prove him guilty of DUI—general impairment.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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