J-A20045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DANAE BRANT

                         Appellant                   No. 409 EDA 2015


         Appeal from the Judgment of Sentence of January 9, 2015
           In the Court of Common Pleas of Montgomery County
             Criminal Division at No.: CP-46-CR-0003848-2014


BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 09, 2015

      Danae Brant (“Brant”) appeals the January 9, 2015 judgment of

sentence. We affirm.

      The trial court set forth the following factual and procedural history of

this case:

      On March 19, 2014, at approximately 4:00 a.m., Plymouth
      Township Police Officer Kyle Wilhelm was called to the scene of
      an accident where he met with Stacy Betham, the owner of a
      damaged vehicle. Ms. Bethan directed Officer Wilhelm toward
      [Brant] and a blue Toyota with heavy front end damage. Officer
      Wilhelm approached [Brant] and observed that she was carrying
      two empty beer containers and a set of car keys.          While
      speaking with [Brant,] Officer Wilhelm detected an odor of
      alcohol and noticed that [Brant’s] eyes were bloodshot and
      glassy.   Upon request, [Brant] handed her keys to Officer
      Wilhelm who determined that the car key belonged to the blue
      Toyota. Officer Wilhelm placed [Brant] under arrest for DUI and
      read the implied consent warnings. At 4:51 a.m., a breath test
      was administered and [Brant’s blood alcohol content (“BAC”)]
      was determined to be .106%.
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Trial Court Opinion (“T.C.O.”), 3/25/2015, at 1.

       Following a non-jury trial on January 9, 2015, the trial court found

Brant guilty of DUI—general impairment and accidents involving damage to

an unattended vehicle.1 On that same day, the trial court sentenced Brant

to a period of 48 hours to six months’ incarceration. On February 5, 2015,

Brant filed a notice of appeal. On February 9, 2015, the trial court ordered

Brant to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b). Brant timely complied. On March 25, 2015, the trial

court filed a Pa.R.A.P. 1925(a) opinion.

       Brant presents two issues for our consideration:

       1. If a judgment of acquittal should be entered on [Brant’s]
          convictions for driving under the influence [] and causing
          damage to an unattended vehicle where there were no
          witnesses who saw her operating the Toyota, where there
          was evidence that someone else was driving the Toyota,
          where no field sobriety test were [sic] administered, and
          where there was the possibility that alcohol was consumed
          after the accident?

       2. If a new trial should be granted where the record is silent on
          whether Appellant was informed of her constitutional right to
          testify and on whether she intelligently, knowingly, and
          voluntarily waived the aforesaid right?

Brief for Brant at 4 (capitalization modified).

       Because Brant’s argument singularly focuses upon the quantity, rather

than the quality, of the evidence presented at her trial, we interpret Brant’s

____________________________________________


1
       75 Pa.C.S. §§ 3802(a)(1), and 3745, respectively.



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first issue as a challenge to the sufficiency of the evidence. When reviewing

such a 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
      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’ testimony.

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

omitted).

      Brant 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




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incapable of safely doing so due to the consumption of alcohol.”2

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

       The   first   element     of   subsection   3802(1)(1)   requires   that   the

Commonwealth demonstrate that the accused was driving, operating, or in

actual physical control of the movement of a vehicle.           In arguing that the

Commonwealth’s evidence was insufficient to establish this element, Brant

emphasizes that none of the Commonwealth’s witnesses actually observed

her operating the Toyota.         While this is true, it ignores the fact that the

Commonwealth presented copious circumstantial evidence demonstrating

that Brant operated or physically controlled the movement of the Toyota.

       At trial, Stacy Betham, the owner of the damaged vehicle, testified

that she ran out of her home immediately after hearing a collision. “Within

seconds” after the accident, Betham observed Brant carrying keys and

walking away from the now-damaged Toyota.               Plymouth Township Police

Officer Kyle Wilhelm arrived at the scene of the accident “within one or two

____________________________________________


2
      Brant contends that the Commonwealth also was “required to preclude
the possibility that [she] ingested alcohol after the accident occurred by
showing there were no signs of imbibing alcohol in the car or nearby which
would have provided [her] an opportunity to drink after [she] stopped
driving.” Brief for Brant at 12. This is incorrect. See Segida, 985 A.2d
871, 879 n.6 (Pa. 2009) (“[W]e reject the . . . implication that, in order to
obtain a conviction under subsection 3802(a)(1), the Commonwealth must
also prove that an accused did not drink any alcohol after the accident.
There is no basis in the statute for insertion of this element.” (citation
omitted)).




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minutes,” and found Brant carrying an empty alcohol container and a set of

car keys. Officer Wilhelm later confirmed that one of those keys fit into the

ignition to the damaged Toyota.       Neither Betham nor Officer Wilhelm

observed anyone else outside following the accident, which occurred at

approximately 4:00 a.m. Paperwork inside of the vehicle bore Brant’s name.

Empty alcohol containers found in the passenger compartment of the Toyota

matched the empty alcohol containers that Brant was carrying on her person

just after the accident.   Although Brant initially told Officer Wilhelm that

somebody had dropped her off in the area, she could not identify or describe

that person. Finally, the Commonwealth introduced evidence that, prior to

trial, Brant admitted to Betham that she was driving the Toyota at the time

of the accident. This evidence was more than sufficient to demonstrate that

Brant was driving, operating, or in actual physical control of the movement

of a vehicle.

      Subsection 3802(a)(1) also requires that the accused be incapable of

safe driving due to the consumption of alcohol. In Segida, the Pennsylvania

Supreme Court described the types of evidence that the Commonwealth may

offer to prove this element:

      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;

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      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.

Segida, 985 A.2d at 879.

      In her brief, Brant dedicates approximately half of her argument on

this issue to producing a bulleted list of various pieces of evidence that the

Commonwealth did not present at trial.         See Brief for Brant at 13-14

(noting, for example, that the Commonwealth did not present evidence that

Brant “was belligerent, hostile, or otherwise uncooperative”). This distorts

the relevant inquiry.    We must decide whether the evidence that the

Commonwealth did present at trial established every element of DUI—

general impairment beyond a reasonable doubt.        As alluded to in Segida,

there is no checklist of facts that the Commonwealth must complete to

support a conviction for 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.




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       The evidence presented at Brant’s trial was sufficient to enable a fact

finder to conclude that Brant was incapable of safe driving due to the

consumption of alcohol. When speaking to Brant, Officer Wilhelm detected a

strong odor of alcohol. Brant’s eyes were bloodshot. She was carrying an

empty alcohol container. She was slurring her speech. She did not know

where she was. She was having trouble keeping her balance. Brant’s blood

alcohol   content     was    .106.       Finally,   the   Commonwealth   presented

circumstantial evidence demonstrating that Brant was the driver of a vehicle

that had struck a parked car with enough force that the airbags deployed.

This evidence was more than sufficient to support Brant’s conviction for

DUI—general impairment beyond a reasonable doubt.3

       In her second and final issue, Brant argues that we should grant her a

new trial because the record is silent as to whether she knowingly,

voluntarily, and intelligently waived her right to testify at trial.       In this

regard, Brant takes issue with the fact that “the trial court never conducted
____________________________________________


3
      In her statement of the questions presented, Brant argues that the
evidence presented at trial was insufficient to support her convictions both
for DUI—general impairment and for accidents involving damage to an
unattended vehicle. In the argument section of her brief, however, she does
not discuss the latter offense nor does she cite any case law related to it.
Accordingly, Brant has waived this issue due to her failure to develop the
argument or to cite any legal authority in support of her position. See
Pa.R.A.P. 2119(b); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).



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a colloquy . . . to determine whether any waiver was proper.” Brief for Brant

at 18.     Brant’s contention is not that she involuntarily waived her right to

testify.    Instead, Brant argues that the trial should have conducted a

colloquy    in   order   to   establish   that   she   knowingly,   voluntarily,   and

intelligently waived that right.     It is well established, however, that a trial

court is not expressly required to conduct such a colloquy with regard to a

defendant’s right to testify. See Commonwealth v. Baldwin, 8 A.3d 901,

907 (Pa. Super. 2010) (“[T]here is no requirement that the trial court

conduct an on-the-record colloquy when a defendant waives his right to

testify[.]”), aff’d, 58 A.3d 754 (Pa. 2012); Commonwealth v. Todd, 820

A.2d 707, 712 (Pa. Super. 2003) (holding that there is no express

requirement that a trial court conduct a colloquy to determine whether a

defendant understood his or her right to testify); cf. Pa. R.Crim.P. 590

(relating to plea agreements) and 620 (relating to waiver of the right to a

jury trial). Accordingly, this issue is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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