J-A26014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

RICKY EDWARD LARSON,

                        Appellant                      No. 4 MDA 2014


                Appeal from the Judgment June 21, 2013
            In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0000601-2012


BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 16, 2014

     Ricky Edward Larson appeals from the judgment of sentence of two

days to six months incarceration imposed after the trial court found him

guilty of driving under the influence of alcohol (“DUI”) high rate and DUI

general impairment. We affirm.

     The trial court delineated the following relevant facts.

            On December 17, 2011, multiple [Pennsylvania State
     Police (“PSP”)] Troopers responded to the scene of a two vehicle
     crash that took place on Pennsylvania Route 934 in northern
     Lebanon County. According to the investigation that ensued, a
     vehicle operated by [Appellant] was traveling south on Route
     934. A pick-up truck operated by an individual whose name was
     not disclosed pulled into [Appellant’s] lane of travel and stopped.
     [Appellant] was not able to avoid the pick-up truck and a
     collision occurred.       According to Trooper Brian Jasinski,
     [Appellant] enjoyed at least one hundred yards of clear visibility
     as he was proceeding toward the scene of the accident. Trooper
     Jasinski testified that [Appellant] could and should have avoided
     the stopped pick-up truck.
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           Following the crash, Trooper Travis Messenger interacted
     with [Appellant]. He noticed an odor of alcohol, slurred speech,
     as well as bloodshot, glassy eyes. He testified that [Appellant]
     was swaying as he walked. In addition, [Appellant] advised
     Trooper Messenger that he and his wife were driving from the
     Hollywood Casino, where each had been drinking alcohol. After
     observing these characteristics, Trooper Messenger asked
     [Appellant] to submit to field sobriety tests. [Appellant] refused.
     Based upon all of these facts, Trooper Messenger determined
     that [Appellant’s] physical and mental state would prevent him
     from safely operating his motor vehicle. Tooper Messenger
     placed [Appellant] under arrest for suspicion of DUI and
     transported him to the PSP Barracks in Jonestown, Pennsylvania
     for processing.

            When [Appellant] was taken to the PSP Barracks for
     processing, he was turned over to Trooper Christopher O’Brien, a
     certified Datamaster breath test operator and a certified
     Datamaster maintenance operator. Trooper O’Brien performed a
     breath test upon [Appellant]. According to Trooper O’Brien,
     [Appellant] provided two breath samples. One resulted in a
     reading of .170 [blood alcohol content (“BAC”)] and the other
     resulted in a [BAC] reading of .173.

           A [p]re-[t]rial [h]earing was held on August 22, 2012 for
     [Appellant’s] [o]mnibus [p]retrial [m]otion to [s]uppress. At
     that [h]earing, [Appellant] argued that Trooper Messenger
     lacked sufficient probable cause to arrest [Appellant].    The
     [c]ourt heard testimony from Troopers Jasinski and Messenger
     about the occurrences of the December 17, 2011 accident.
     Based on [the] totality of the circumstances, [the] [c]ourt
     disagreed with [Appellant’s] premise and found sufficient
     probable cause for the arrest.

            A bench trial was held on June 21, 2013, at which several
     witnesses testified, including expert witness Dr. Jimmy
     Valentine. Dr. Jimmy Valentine provided expert testimony and
     corresponding charts in support of his position that the
     Datamaster device was unreliable. In [the trial court’s] July 1,
     2013 [o]pinion, after considering Dr. Valentine’s testimony in
     light of all other evidence and testimony, [the court] concluded
     that the Datamaster’s findings were reliable enough to determine
     beyond a reasonable doubt that the [Appellant’s] blood alcohol
     content exceeded .10 percent.

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Trial Court Opinion, 2/6/14, 3-5.

      The court found Appellant guilty of DUI--high rate as a lesser included

offense of the charged crime of DUI—highest rate, and DUI general

impairment. The court sentenced Appellant on the DUI high rate charge to

two days to six months imprisonment and imposed no further penalty on the

additional charge. Appellant filed a timely post-sentence motion, which the

trial court denied by order and opinion on November 25, 2013. This appeal

ensued.   The trial court directed Appellant to file and serve a concise

statement of errors complained of on appeal. Appellant complied, and as it

relates to the issues presented herein, the trial court indicated in its

Pa.R.A.P. 1925(a) opinion that the reasons for its decision could be found in

its November opinion. The matter is now ready for our consideration.

      Appellant sets forth two issues for this Court’s review.

      1. Whether the [t]rial [c]ourt erred in finding the Appellant
         guilty of 75 Pa.C.S.A. § 3802(b) because said verdict was
         against the weight of the evidence as the [Appellant’s] result
         as presented by the Commonwealth was not shown to be
         scientifically reliable or trustworthy. The expert qualified for
         the defense elaborated on numerous areas of concern
         including the provided breath flow rates for the duplicate
         breath samples, volume of Appellant’s breath samples, the
         machine being taken out of service on four occasions within
         twelve months, the accuracy testing done by using the same
         lot of solution as the calibration, and breath test
         temperatures.       These were specific allegations of error
         supported      by    scientific,  peer   reviewed   data    and
         notwithstanding all the facts, these facts were so clearly of
         greater weight that to ignore them or to give them equal
         weight with all the facts denied justice.




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      2. Whether the trial court’s verdict of guilt as to DUI: General
         Impairment was against the weight of the evidence because
         the Commonwealth’s evidence did not establish that the
         [Appellant’s] mental and physical faculties were impaired
         such that he could not safely operate a motor vehicle?

Appellant’s brief at 1.

      As both of Appellant’s issues implicate the weight of the evidence, we

address them together.      Our standard and scope of review for evaluating

weight of the evidence claims is settled. “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.” Commonwealth

v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis removed). Accordingly,

“[o]ne 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 the evidence and that a new trial should be granted in the interest

of justice.” Id.

      A trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

different conclusion.”    Id.   Instead, the trial court must examine whether

“‘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. Only where the jury verdict “is so contrary to the evidence as

to shock one's sense of justice” should a trial court afford a defendant a new

trial. Id. A weight of the evidence issue concedes that sufficient evidence


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was introduced.       Commonwealth v. Charlton, 902 A.2d 554, 561

(Pa.Super. 2006).

      Appellant’s argument boiled down to its simplest statement is that the

expert testimony of Dr. Valentine established that the BAC test results in this

case were wholly unreliable.    According to Appellant, to find that the BAC

test results in this case indicated that Appellant had at least a BAC of .10 to

.16, rather than accept the extensive testimony of his expert, was to give

the test results greater or equal weight than was warranted and denied

justice.

      We summarize Dr. Valentine’s testimony.         Dr. Valentine, an expert

who has testified solely on behalf of the criminal defense bar, opined that

the DataMaster DMT machine used in this case required a volume of at least

1.5 liters of air. Appellant provided 2.0 liters for the test that yielded a .170

BAC and 3.0 liters for the test that resulted in a .173 BAC. According to Dr.

Valentine, the greater the volume of air blown into the machine, the higher

the BAC the machine yields.         He posited that Appellant’s tests were

unreliable because of the elevated volume of breath.

      In addition, Dr. Valentine asserted that the simulator solutions used to

test a breath test machine are calibrated at 34 degrees centigrade, but that

human breath is not always that temperature.           The higher the breath

temperature, the higher the BAC result. Human breath is on average 34.9

degrees centigrade.    Dr. Valentine also was troubled by the fact that the


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J-A26014-14


machine in this case had been taken out of service four times, although he

had no knowledge of why that occurred.

      Dr. Valentine further took issue with the manner in which the

Pennsylvania State Police tested the machine’s accuracy.           To test the

breathalyzer, a solution simulating a .10 BAC was used. In Dr. Valentine’s

view, the Commonwealth used a solution from the same lot number in its

accuracy test as its calibration test. According to Dr. Valentine, if you utilize

the same solution for calibration and accuracy testing, the machine is told

what to expect.    Instead, Dr. Valentine maintained that calibration testing

should be done with a solution from a totally different source. Dr. Valentine

admitted that the PSP used different bottles of solution, but since those

bottles were coming from the same lot, the solution was the same.

      Further, Dr. Valentine questioned the manner in which the PSP

calibrated the machine.       He noted that the machine was calibrated

measuring a BAC between .05 and .15. Since Appellant’s BAC exceeded that

range, he reasoned that one could not, in scientifically reliable fashion,

determine the accuracy of the test.      He recognized that after Appellant’s

test, the PSP tested the machine at ranges of .20, .25, and .30, but

contended that there was no scientific basis to extrapolate those results to

Appellant’s earlier test.

      In contrast, Trooper O’Brien testified that the breath test machine he

used in this matter was certified to conduct BAC tests.       He further stated


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J-A26014-14


that the machine was properly calibrated.        The calibration check indicated

that the machine was providing test results within the acceptable ranges of

the true BAC. Trooper O’Brien also asserted that the machine used in this

case was verified to be accurate, and that the BAC results were .170 and

.173.    The Commonwealth introduced into evidence certificates of breath

test device accuracy and breath-testing device calibration.

         The trial court here was free to reject the testimony of Appellant’s

expert as to the total unreliability of Appellant’s BAC testing and accept

Trooper O’Brien’s testimony.     The court specifically found Trooper O’Brien

credible and credited his testimony. It determined that the solution used to

test the accuracy of the machine was not provided by the manufacturer of

the machine and was independently verified by two separate laboratories.

Nonetheless, the court did opine that it could not find beyond a reasonable

doubt that Appellant’s BAC was .170.           However, it found it illogical to

conclude that the machines results were so unreliable that Appellant’s BAC

did not fall within the mid-level DUI range.    In doing so, the court reasoned,

               To accept [Appellant’s] argument, one would have to
        believe that the linear progression created by the Datamaster
        machine would make an abrupt and dramatic u-turn as soon as
        the instrument response exceeded the amount necessary to
        generate a .15 blood alcohol result. To believe that the linear
        progression would make such a “u-turn” one would have to
        conclude that two different “instrument responses” would trigger
        the exact same blood alcohol reading. It is neither logical nor
        likely that the linear progression line described by Dr. Valentine
        would make a dramatic u-turn in order to create a situation
        where two separate instrument responses would generate the


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      exact same blood alcohol content for every BAC reading between
      .08 and .15.

Trial Court Opinion, 7/1/13, at 15 (footnote omitted).

      The court added that the evidence demonstrated that the machine in

this case was accuracy checked after Appellant’s testing for solutions of .20

and .30 percent, in 2013, and worked properly.           It opined that this was

circumstantial evidence that the Datamaster machine was capable of

accurately measuring BAC results that exceeded .15 percent at the time of

Appellant’s tests. We find that the trial court did not abuse its discretion in

using this reasoning to find that its verdict was not so contrary to the

evidence that it shocked the trial court’s conscience.

      Moreover, the facts demonstrate that Appellant was unable to stop his

vehicle from striking another despite ample visibility and time to do so.

Appellant had slurred speech, swayed while standing, had bloodshot eyes,

indicated that he had been drinking, and refused field sobriety tests. All of

this is circumstantial evidence that Appellant was driving under the

influence.   Accordingly, we find his second weight of the evidence issue

relative to his general impairment charge to be wholly without merit.

      Judgment of sentence affirmed.




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J-A26014-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/16/2014




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