J-S71038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DANNY JERALD ALDERMAN

                            Appellant                No. 830 WDA 2015


             Appeal from the Judgment of Sentence April 30, 2015
              In the Court of Common Pleas of Somerset County
             Criminal Division at No(s): CP-56-CR-0000642-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 09, 2016

       Danny Jerald Alderman appeals pro se from the judgment of sentence

imposed on April 30, 2015, in the Court of Common Pleas of Somerset

County. On January 16, 2015, a jury convicted Alderman of driving under

the influence (“DUI”).1 That same day, the trial court, sitting without a jury,

convicted him of driving on roadways laned for traffic and careless driving.2

The court sentenced Alderman to a term of 12 months to five years in a

state correctional facility with respect to the Section 3802(c) DUI offense.3

On appeal, Alderman challenges the sufficiency of the evidence.        After a
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1
    75 Pa.C.S. § 3802(c).
2
    75 Pa.C.S. §§ 3309(1) and 3714(a).
3
    The court imposed statutory fines and costs for the remaining offenses.
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thorough review of the submissions by the parties, the certified record, and

relevant law, we affirm.

      The trial court summarized the evidence presented at trial as follows:

      The Commonwealth’s first witness, Carol Fochtman, testified on
      direct examination that on April 26, 2014, she was driving on her
      way home from work and encountered a vehicle in front of her
      driving very slowly at approximately 10 to 15 miles an hour in a
      35 miles per hour zone. She stated that the vehicle “swerved off
      to the right on the berm just a little bit … it happened again, like
      a couple seconds later it went off on the berm again to the
      right.” She also testified “… I said it out loud to myself, I said,
      ‘Oh, my God, he’s going to hit that pole.’ And it was like a
      couple of seconds later, I heard a crack and he hit the pole.”
      Ms. Fochtman stated that she got out of her car and went over
      to the driver who was out of the car and standing up. She
      stated “I said, ‘Are you okay? He said, “Yes.” Ms. Fochtman
      was then asked “What else did he say to you?” She answered
      that he said “Please don’t call the cops.” She also testified that
      she did not see him drink anything. In addition, she was able to
      point to [Alderman] as the man she saw at the scene.

            The Commonwealth also called Mary Devroy, another
      driver who came upon the scene and stopped. She testified as
      follows:

         Driving out Route 160 towards Windber, we seen a car
         that was off the road that hit a telephone pole. We pulled
         off to the right. As I was walking across the road calling
         911 to report an accident, [Alderman] was sitting on the
         ground, went over to make sure he was okay, and I could
         smell the alcohol. And I said: “were you drinking?” and
         he did admit, yes, that he was drinking.[]

             She also testified that she made the call to 911 at 5:54
      P.M. and that she saw an open beer can in [Alderman]’s car.
      Further, she stated that she smelled the alcohol on [Alderman]
      before he climbed back into his car. In addition she said that
      [Alderman] said “Please don’t call the police … I am going to go
      to jail.” She testified that the State Police Trooper arrived at
      6:20 and she left the scene at 6:21.


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           Trooper Eric Bowser testified regarding his investigation of
     the accident. He stated that he was dispatched at 6:00 P.M. and
     arrived at the scene about 20 to 25 minutes after the accident
     had occurred. He stated that he viewed the damage to the car
     and the pole and that an ambulance was preparing to transport
     the operator to the hospital. He gathered s[o]me additional
     evidence, talked to Ms. Devroy, prepared a diagram of the
     scene, travelled to Windber Hospital and spoke to [Alderman]
     there, noting “a very strong odor of alcohol emanating from …
     Mr. Alderman.” The Trooper also testified that [Alderman]’s
     “eyes were glassy and bloodshot … he had slurred speech; he
     was sleepy and groggy as well as crying…” [Alderman] also
     stated that he had three or four beers in the morning. After
     [Alderman] also failed a field sobriety test, identified as a
     horizontal gaze nystagmus test, Trooper Bowser placed him
     under arrest for driving under the influence at approximately
     6:56 P.M. At 7:08 P.M. a blood sample was drawn by hospital
     personnel for testing at the request of the Trooper. In addition,
     Trooper Bowser testified that he had found one beer can in
     [Alderman]’s vehicle at the scene.

            Finally, the Commonwealth presented the testimony of
     Karen Turcato, an employee in the laboratory at Windber
     Hospital where [Alderman] was taken for treatment.             She
     testified concerning her role in the taking and chemical testing of
     a sample of [Alderman]’s blood on the evening in question. She
     reviewed the procedure she employed and the test result which
     showed a blood alcohol of .243%.           The test results were
     admitted as Commonwealth’s Exhibit “A” without objection. She
     verified that the time of the blood draw at 7:08 P.M. on April 26,
     2014. After the Commonwealth rested, we denied a Defense
     motion for Judgment of Acquittal.

            [Alderman] presented testimony from his mother and also
     took the stand. Sherri Miller testified that [Alderman] had spent
     the night at her home and spent time with his daughter there.
     She said that [Alderman] wanted to take the child fishing but the
     child wouldn’t go unless her grandfather went along. She stated
     that he left the house and was upset regarding the failed fishing
     outing. In addition she stated that [Alderman] had nothing
     alcoholic to drink at her home. On cross examination she stated
     that [Alderman] was gone 30-45 minutes before she received a
     call from him regarding his accident.


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           [Alderman] testified regarding his plans to take his
     daughter fishing on his day off and the issue that arose which
     frustrated those plans.      He stated that he began to feel
     “overwhelmed” by the circumstances and wanted to avoid
     getting frustrated in the child’s presence and chose to leave the
     house. He stated that he drove to a gas station, got gas in his
     vehicle, purchased some cigarettes, sat in his vehicle and
     smoked a cigarette and left the area. He explained that the
     vehicle was experiencing some problems with the alignment and
     the vehicle was “pulling” to the right. He stated that as he
     pulled out, his phone slid off the seat, he picked it up and was
     looking at [it] when the vehicle “just pulled off the road. I
     wasn’t paying attention and it hit the pole.”

            He stated that he had not been drinking at home, was not
     drinking at the gas station, and had no alcohol in his system
     when he hit the pole. He testified that there was alcohol in the
     car “some beer in the back seat … I had a fifth of Jim Beam
     under the passenger seat.” He also testified that he “opened the
     beer – or I washed my mouth, spit it out and drank the beer. I
     opened the fifth and figured I would drink as much of it as I can
     until the police got there.”

          On cross-examination, [Alderman] was asked

          “So you’re willing – you were willing to say anything to
       get home at that time?”

       That inquiry produced the following exchange:

       “A. After I realized I wasn’t going to jail that day, I mean
       yeah. I had alcohol on my breath. I – I can’t deny it. I
       was looking for what is the most plausible explanation –

       Q. Kind of like you’re doing today. You’re looking for the
       most plausible explanation –

       A. That is your opinion. I can’t argue with you.

       Q. So you didn’t – you lied to the officer when you said
       you had three or four drinks that morning?

       A. Yeah.[”]


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Trial Court Opinion, 7/2/2015, at 2-6 (record citations omitted).

      As noted above, a one-day jury was held on January 16, 2015. The

jury convicted Alderman of DUI, a first-degree misdemeanor. Following the

jury trial, the trial court convicted him of the summary offenses of driving on

roadways laned for traffic and careless driving. As noted above, on April 30,

2015, the court sentenced Alderman to a term of 12 months to five years in

a state correctional facility with respect to the Section 3802(c) DUI offense.

Following the sentencing hearing, by separate order, the court granted

Alderman’s oral motion to dismiss his appointed counsel and to proceed to

represent himself on appeal.

      On May 6, 2015, Alderman filed a motion for reconsideration seeking a

reduction in the maximum date of his incarceration. However, on May 22,

2015, before argument could be scheduled regarding the motion, Alderman

filed a notice of appeal. On June 2, 2015, the trial court entered an order,

denying his post-sentence motion. On June 3, 2015, the trial court ordered

Alderman to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Alderman filed a concise statement on June

17, 2015. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on

July 2, 2015.




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        In Alderman’s sole argument,4 he claims there was insufficient

evidence    to   support his conviction          for   DUI under   Section 3802(c).

Specifically, he states expert testimony was required to validate the blood

alcohol content (“BAC”) testing because a supernatant example was used as

the test sample of his results and therefore, evidence of a conversion factor

to calculate the whole blood alcohol content of the original whole blood

sample from the non-whole blood result was necessary. Alderman’s Brief at

9-13.     Moreover, he states that while the Commonwealth may have

mentioned “conversion” while questioning Karen Turcato, the Windber

Medical Center laboratory employee, it did not present any evidence of the

conversion process. Id. at 11. He asserts:

        This makes the result of the test legally insufficient to support a
        conviction for [Section] 3802(c), Merely stating this is the whole
        blood conversion, without explanation or conversion factors
        used, is tantamount to simply stating that someone is an expert,
        but not showing you their credentials.

Id. In support of his argument, he relies on Commonwealth v. Haight, 50

A.3d 137 (Pa. Super. 2012), and Commonwealth v. Karns, 50 A.3d 158

(Pa. Super. 2012).

        Our standard of review is well-settled:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there is sufficient
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4
  We note that while Alderman lists two issues in his statement of questions
involved, he addresses them together in his argument.



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     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying the above test, we
     may not weigh the evidence and substitute our judgment for the
     fact-finder. In addition, we note that the facts and circumstances
     established by the Commonwealth need not preclude every
     possibility of innocence. Any doubts regarding a defendant’s guilt
     may be resolved by the fact-finder unless the evidence is so
     weak and inconclusive that as a matter of law no probability of
     fact may be drawn from the combined circumstances. The
     Commonwealth may sustain its burden of proving every element
     of the crime beyond a reasonable doubt by means of wholly
     circumstantial evidence. Moreover, in applying the above test,
     the entire record must be evaluated and all evidence actually
     received must be considered. Finally, the finder of fact while
     passing upon the credibility of witnesses and the weight of the
     evidence produced, is free to believe all, part or none of the
     evidence.

Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011),

quoting Commonwealth v. Brooks, 7 A.3d 852, 856–57 (Pa. Super.

2010).

     However, before we may address the merits of this issue, we must

determine whether Alderman properly preserved the claim. In his concise

statement, as ordered by the court to file, Alderman identified the following

issues he wished to raise on appeal:

     1) Whether there was sufficient evidence presented to the Jury
     for them to return a verdict that [Alderman] was driving with a
     BAC of .16 or higher?

     2) Whether the verdict was against the weight of the evidence
     presented to uphold a verdict that [Alderman] was at the time of
     the operation of the vehicle , operating a vehicle with a BAC[] of
     .16% or higher?

Concise Statement of Matters Complained on Appeal, 6/17/2015, at 2.




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      The trial court found Alderman’s issues on appeal could be waived,

determining his concise statement failed to specify any specific errors the

court made during trial. See Trial Court Opinion, 7/2/2015, at 6. The trial

court stated, “We view these statements as the type of ‘boilerplate’

responses which may not require a response under Rule 1925.”              Id.

Nevertheless, the court did address the sufficiency and weight claims

generally but did not specifically analyze the sufficiency of expert evidence

regarding the conversion process for the BAC results. See id. at 2-8.

      Rule 1925 requires an appellant “concisely identify each ruling or error

that the appellant intends to challenge with sufficient detail to identify all

pertinent issues[.]” Pa.R.A.P. 1925(b)(4)(ii). “When a court has to guess

what issues an appellant is appealing, that is not enough for meaningful

review.” Commonwealth v. Allshouse, 969 A.2d 1236, 1239 (Pa. Super.

2009) (failure to adequately identify issues “impede[s]” trial court “in its

preparation of a legal analysis which is pertinent to those issues.”).

      Ordinarily, a defendant waives a sufficiency claim where he fails to

indicate with specificity which element of a crime the Commonwealth failed

to prove. See Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.

2013) (“In order to preserve a challenge to the sufficiency of the evidence

on appeal, an appellant’s Rule 1925(b) statement must state with specificity

the element or elements upon which the appellant alleges that the evidence

was insufficient.”).


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       The trial court convicted Alderman of DUI, highest rate of alcohol,

under the following statute:

       § 3802. Driving under influence of alcohol or controlled
       substance

                                               …

       (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(c).

       Based on the lack of specificity regarding what element of the crime

the Commonwealth failed to establish, we are compelled to conclude

Alderman waived his claim by filing a deficient concise statement.5

       Judgment of sentence affirmed.




____________________________________________


5
   Moreover, the test results were admitted without objection. See N.T.,
1/16/2015, at 47. Additionally, prior to sentencing, Alderman’s counsel
made an oral motion for arrest of judgment, relying on Commonwealth v.
Kostra, 502 A.2d 1287 (Pa. Super. 1985), and stating that Kostra
discusses “blood alcohol conte[n]t, lay testimony and expert testimony. We
believe there was no expert testimony presented and that that would
disqualify essentially the Jury’s lay opinion of what his blood alcohol could
have been or would have been at the time.” N.T., 4/30/2015, at 4-5. The
court denied the motion without prejudice to raise on appeal. However, as
evidenced above, Alderman did not set forth the sufficiency argument with
any specificity as required by the appellate rules.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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