J-S48010-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee,               :
                                          :
             v.                           :
                                          :
CHAD EVERETT WANDEL,                      :
                                          :
                  Appellant               : No. 484 MDA 2014

           Appeal from the Judgment of Sentence January 6, 2014,
                  Court of Common Pleas, Luzerne County,
              Criminal Division at No. CP-40-CR-0004005-2012

BEFORE: DONOHUE, JENKINS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED AUGUST 08, 2014

                                                                  dgment of

sentence entered on January 6, 2014 by the Court of Common Pleas of

Luzerne County, Criminal Division, following his conviction for driving under
                                                                      1
                                                                          After

careful review, we affirm.

       The relevant facts and procedural history in this case are as follows.

On April 21, 2011, shortly after midnight, Sergeant Damian Hoover



to a motor vehicle crash on State Route

a silver Audi and a motorcycle. By the time Sergeant Hoover arrived at the

scene, paramedics had transported the driver of the motorcycle to a local



1
    75 Pa.C.S.A. § 3802(e).


*Retired Senior Judge assigned to the Superior Court.
J-S48010-14


hospital and Wandel, the driver of the silver Audi, had fled the scene of the

crash.   However, while Sergeant Hoover was investigating the crash,



questioned Wandel, who was 18-years-old on the night in question, he

                                            rson and breath. Sergeant Hoover

placed Wandel under arrest and transported him to Wilkes-Barre General




     On November 25, 2013, following a bench trial, the trial court found

Wandel guilty of DUI        minors.   On January 6, 2014, the trial court

sentenced Wandel to seven days to six months of house arrest. Additionally,

the trial court also fined Wandel $500.00, required him to enroll in an

alcohol highway safety program, undergo evaluation for drug and alcohol

treatment, and pay $307.00 to Wilkes-Barre General Hospital in restitution



suspension.     That same day, Wandel filed post-sentence motions.          On

                                                       -sentence motions.

     On February 3, 2014, Wandel filed a notice of appeal to this Court. On

appeal, Wandel raises the following issue for our review:

              Sufficiency of a Blood Test Result. For DUI
              minor, blood-alcohol content may not be 0.02% or
              higher within two hours after the minor has driven.
              Here, the Commonwealth presented admissible




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J-S48010-14


            Commonwealth, however, failed to present evidence
            that the result is reliable and likely accurate. The
            laboratory improperly calibrates its blood-testing
            machine. Therefore, is this weak and inconclusive

            concentration was .02% or higher within two hours
            of driving?



      In reviewing a challenge to the sufficiency of the evidence, our

standard of review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            recor
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
                        Commonwealth v. Widmer, 560 Pa.

            deemed sufficient to support the verdict when it
            establishes each material element of the crime
            charged and the commission thereof by the accused,
                                          Commonwealth v.
            Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
                                                         ablish
                                               Id.; see also
            Commonwealth v. Aguado, 760 A.2d 1181, 1185

            established by the Commonwealth need not be


            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. See Commonwealth v.
            DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

            The Commonwealth may sustain its burden by
            means of wholly circumstantial evidence. See
            Brewer




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J-S48010-14


            participation in a crime is circumstantial does not
            preclude a conviction where the evidence coupled
            with the reasonable inferences drawn therefrom
                                                             Id.
            (quoting Commonwealth v. Murphy, 795 A.2d
            1025, 1038 39 (Pa. Super. 2002)). Significantly, we
            may not substitute our judgment for that of the fact
            finder; thus, so long as the evidence adduced,
            accepted in the light most favorable to the
            Commonwealth,      demonstrates    the    respective

                                                       ions will be
            upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.

Super. 2013)).

      Section 3802(e) of the Vehicle Code states the following:

            A minor 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

            is 0.02% or higher within two hours after the minor
            has driven, operated or been in actual physical
            control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(e).    Thus, in order for a person to be in violation of

section 3802(e), the Commonwealth must prove that the person was a

minor,2 was driving, operating, or controlling a vehicle, and had a BAC of .02

percent or higher within two hours after driving, operating, or controlling the

vehicle. See id.



2




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       Although Wandel concedes that he is a minor, that he was operating a

vehicle on the night in question, and that Wilkes-Barre General Hospital

obtained his BAC within two hours of operating that vehicle, Wandel asserts

that there was insufficient evidence to conclude that his BAC was .047

                                                                        minors

statute that Wandel claims the Commonwealth did not sufficiently prove is

that his BAC was greater than .02 percent. Wandel contends that the gas

chromatograph instrument used to measure his BAC was improperly

calibrated, causing results that were both inaccurate and unreliable. Id. at

9-16. Therefore, Wandel argues that the Commonwealth failed to provide

sufficient evidence supporting his conviction for DUI   minors. Id. at 16-22.

       We conclude that the trial court did not err in finding that Wan

sufficiency of the evidence claim fails.3

challenging the sufficiency of the evidence . . . asserts that there is

insufficient evidence to support at least one material element of the crime

for which Appellant has                      Commonwealth v. Lyons, 833

A.2d 245, 258 (Pa. Super. 2003) (citation omitted). Thus, as soon as the

trial court has admitted proof of each material element of a crime into

                                                                  ail. See id.


3
    We note that our rationale in reaching this conclusion differs from that of


Commonwealth v. McLaurin, 45 A.3d 1131, 1138 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013).


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J-S48010-14


Wandel readily concedes that the trial court admitted into evidence proof

that his BAC on the night in question was .047 percent. See



                                                                        4
presented admissibl                                                         Id.

Therefore, because Wandel concedes that the trial court admitted into

evidence proof that his BAC on the night question was .047 percent, which is

the sole element of the DUI        minors statute that he co

sufficiency of the evidence claim fails. See Lyons, 833 A.2d 245, 258 (Pa.

Super. 2003) (citation omitted).



evidence with a challenge to the weight of the evidence.       In his appellate

brief, Wandel cites the standard of review for sufficiency of the evidence



refers numerous times throughout the remainder of his brief to the

sufficiency of the evidence. See                     -4, 6-8, 16, 19, 22-23.

However, the argument that Wandel makes throughout his brief is a weight

of the evidence argument.

     Wandel argues that his BAC test results are potentially inaccurate and

unreliable because ac

Wilkes-Barre General Hospital improperly calibrated the gas chromatograph


4



question, without objection. See N.T., 11/25/13, at 121-22.


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J-S48010-14


                                                           -16. Our Court has

held that the challenges to the reliability of BAC test results are challenges

that go to the weight of the evidence. Commonwealth v. Sullivan, 581

A.2d 956, 959 (Pa. Super. 1990); see also Commonwealth v. Shiffler,

541 A.2d 780, 783 (Pa. Super. 1988) (determining that a challenge to the

reliability of BAC results goes to the weight of the evidence).

        Moreover, what Wandel asks us to do is afford more weight to the



                                                     See                   9-




Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009).

Therefore, based on the foregoing authority, it is clear that Wandel has

raised a sufficiency claim in which he presents a weight of the evidence

argument.



suffi

as a challenge to the sufficiency of the evidence, but the argument that

appellant provides goes to the weight of the evidence. Commonwealth v.

Small, 741 A.2d 666, 672 (Pa. 1999). Because Wandel raised a sufficiency




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J-S48010-14


claim in which he presents a weight of the evidence argument, his

sufficiency claim also fails for that reason.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/8/2014




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