J-S43039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

BETHANN ZAMPERINI

                            Appellant                  No. 191 WDA 2017


            Appeal from the Judgment of Sentence January 19, 2017
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001174-2016


BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED JULY 28, 2017

        Appellant, Bethann Zamperini, appeals from the judgment of sentence

entered in the Butler County Court of Common Pleas following her conviction

in a non-jury trial of driving under the influence 1 (“DUI) and speeding.2

Appellant contends the evidence was insufficient to sustain a guilty verdict

for DUI. We affirm.

        At trial, Officer Christopher Miller, patrolman for the Jackson Township

Police Department, testified for the Commonwealth.

           The Commonwealth: Officer, I want to draw your attention
           to the early morning hours of February twenty-fourth, two
           thousand and sixteen. . . .


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a).
2
    75 Pa.C.S. § 3362(a)(3).
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                                *    *    *

       Can you tell us how you came into contact with [Appellant]
       that night?

       A: I was stationed at the RE/MAX Building on Route
       nineteen. In front of the building there are two sets of two
       hundred foot speed lines. I was exposed in a manner that
       I could observe both sets of lines, and I observed the
       vehicle traveling southbound. It was clearly traveling at a
       high rate of speed. I timed at least twenty miles over the
       speed limit. It was clocked with department AccuTracker.
       I got seventy-four point eight in a posted fifty mile an hour
       zone there. I initiated a traffic stop on the vehicle . . . . I
       made contact with the driver. After sometime she was
       able to produce her driver’s license. . . . Through the
       course of speaking with her through the window I could
       detect an odor of an alcoholic beverage, intoxicating
       beverage coming out of the vehicle. She was the only
       occupant in the vehicle. I asked her if she had been
       drinking. She said, no. I asked her where she was coming
       from. She said Three B’s, which was a bar in Zelienople.
       She said she was bartending and had just finished. While
       speaking with her I could detect that, observed her speech
       to be a little slurred. Her eyes also appeared glassy and
       bloodshot. I asked that she step from the vehicle at that
       point.

                                *    *    *

       [The Commonwealth]: . . . How were you able to see the
       lines?

       A: I, you could see the lines when the headlights first hit
       the lines itself it illuminates them. I sit there in total
       darkness, and, you know, I am able to see the lines
       without any lighting from vehicles passing, but, I mean,
       it’s even more pronounced when a vehicle passes through.

       Q: Was there any other traffic on the road at that time.

       A: Very light. She was by herself in that vehicle.

                                *    *    *


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        Q: [W]hat else did you observe with your initial contact
        with her?

        A: Her speech was slurred at times. When I asked her to
        produce her driver’s license, it took her a little bit longer
        than what a reasonable person [sic]. She seemed to
        fumble with some of her items in her wallet. She avoided
        eye contact with me, didn’t want to answer really many
        questions that I asked her, during the course of that
        conduct, contact.

                                *    *     *

        Q: [W]hat did you do next?

        A: I asked her to step from the vehicle, to perform
        standardized field sobriety [sic] to which she did and she
        agreed to do that.

        Q: Which test did she perform?

        A: We conducted the HG[N Horizontal Gaze Nystagmus],
        walk and turn, one leg stand, and she was also issued a
        PBT [pre-arrest breath test] at the end of that.

        Q: Now, I don’t want to get into the HGN.[3] We are not
        allowed to talk to [sic] about that in a trial. I want you to
        go through the walk and turn test and one leg stand and
        explain each one how she performed on each one of those
        tests if you would, please?

        A: The walk and turn test is a series of there’s [sic] eight
        clues that can be observed in a walk and turn test. She’s
        instructed to remain in a ready position which would be
        her left foot on the line, right foot in front of it touching
        heel to toe, hands at side. I instruct her to remain in the
        position while I demonstrate the test. While I did that she
        started the test and started to walk. I had to stop her, tell

3
  HGN test results have been deemed scientific evidence by Pennsylvania
courts, and therefore require an adequate foundation prior to their
admissibility. Commonwealth v. Stringer, 678 A.2d 1200, 1201 (Pa.
Super. 1996).



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       her to remain in that position. Once I demonstrated the
       test and asked her if she understood the test, she started
       the test and took eighteen steps and then stopped the test
       completely. I had to instruct her to turn, you know, finish
       the turn portion of the test and then return steps. So, she
       pivoted rather than take a series of small steps and then
       returned another eighteen to twenty steps on the way
       back to where she first started.

       Q: How many clues did she show in that, performing that
       test?

       A: In that there was four of eight.

       Q: And what were those clues specifically?

       A: She started the test too early. She took too many
       steps.   She stopped the test and then she turned
       improperly.

       Q: How many steps was she supposed to take?

       A: Nine consecutive. Stop, take a series of small steps
       then return an additional nine steps.

                                *    *    *

       Q: Okay. You said the other test she did was the one leg
       stand. Explain how she performed on that?

       A: She was again instructed to remain in a ready position
       while I demonstrated the test with her feet together and
       hands at her side. I conducted the test, demonstrated it
       for her and instructed her to begin. She indicated she
       understood. When I instructed her to begin, she was,
       during when I demonstrated the test she was instructed to
       take her right or left foot, didn’t matter, raise it six inches
       from the ground keeping her legs straight and toe pointed
       forward parallel with the ground, her hands supposed to be
       kept at her side. While conducting the test count out loud
       by one thousandths until I tell her to stop. We timed the
       test. I use a stop watch on my personal phone and
       estimate a passage of thirty seconds. While she’s doing
       the test she’s supposed to remain, keep looking at her toe,


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        hands at her side, count out by one thousand, when I
        instructed her to do so she used her arms for balance and
        put her foot down at the twenty-five seconds. I instructed
        her to keep going. She picked her foot up, put it right
        down immediately again. With that test I observed two
        clues.

        Q: That was going to be my next question. Are there clues
        connected with that test?

        A: Four total.

        Q: She showed two?

        A: She showed two.

        Q: Okay. And then what else did you observe with her in
        your interaction with her on the side of the road?

        A: When I was conducting the HGN, I was up close with
        her. I could smell the odor of an alcoholic beverage,
        intoxicating beverage emanating from her person at that
        point. She was also when standing still would sway side to
        side, which gave me some other indications she was
        possibly over her limit of alcohol.

        Q: And did you administer a PBT . . . ?

        A: I did.

        Q: Was it positive for alcohol?

        A: It was positive, yes.

        Q: Did you have any opinion at that point, Officer, about
        her condition to drive a motor vehicle?

        A: It was my opinion at that point that she was over the
        legal limit, clearly, and placed her, took her into custody. I
        didn’t feel comfortable to releasing [sic] her to driving the
        vehicle at that point.

N.T., 11/18/16, at 6-15.



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      Following the non-jury trial, Appellant was sentenced to five days to

six months’ imprisonment.     This timely appeal followed.   Appellant filed a

court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, and the trial court filed a responsive opinion.

      Appellant raises the following issue for our review:          “Was the

Commonwealth’s insufficient evidence of DUI/Impaired driving trumped by

the Officer’s opinion or was the evidence in this case legally insufficient to

sustain a Verdict of Guilty?” Appellant’s Brief at 6. Appellant avers

            Both the prosecutor and the [c]ourt mis-apply the law
         in this case. The Officer’s job is to determine whether
         there is a probable cause to make an arrest or not, and no
         more. There is no challenge to him making this decision to
         arrest in this case, but he is not judge and jury. Courts
         must be cautious in accepting an arresting officer’s opinion
         without any scrutiny. Particularly in a case such as this, a
         [t]rial [c]ourt should be slow to deviate from the long-
         standing holdings that opinion evidence is the lowest grade
         of evidence known in the law, and is not entitled too much
         weight against positive testimony of actual facts.

Id. at 14

      “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

            [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict.

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            When reviewing the sufficiency of the evidence, an
        appellate court must determine whether the evidence, and
        all reasonable inferences deducible from that, viewed in
        the light most favorable to the Commonwealth as verdict
        winner, are sufficient to establish all of the elements of the
        offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)

(citations and quotation marks omitted).    Moreover, this standard requires

that we review an undiminished record without regard to the admissibility of

the evidence relied upon to render the verdict. Commonwealth v. Brown,

52 A.3d 1139, 1188 (Pa. 2012).

     Under section 3802(a)(1):

        [A]n 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).

        Section 3802(a)(1) . . . 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. . . . The weight to be
        assigned these various types of evidence presents a
        question for the fact-finder, who may rely on his or her


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        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.

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

and quotation marks omitted).

     In the case sub judice, the trial court opined:

        [Officer Miller] testified that he has been employed with
        Jackson Township for approximately eight and one-half
        (81/2) years. He testified that he has received training in
        standardized field sobriety, . . . high risk traffic stops, drug
        paraphernalia, DUI detection, and speed detection.

           Officer Miller testified that in the early morning hours of
        February 24, 2016 he was working the 11 p.m. to 7 a.m.
        shift and was stationed at the RE/MAX building on Route
        19. He observed a vehicle traveling at a high rate of
        speed, clocked at over twenty (20) miles per hour over the
        speed limit . . . The officer initiated a traffic stop of the
        vehicle driven by [Appellant]. While speaking with
        [Appellant] through the vehicle’s window, he testified that
        he detected the odor of an alcoholic beverage coming out
        of the vehicle. The officer also observed that [Appellant’s]
        speech was a little slurred.           Additionally, her eyes
        appeared glassy and bloodshot.           While speaking with
        [Appellant], Officer Miller testified that she avoided eye
        contact with him and didn’t want to answer all of his
        questions. He also mentioned that [Appellant] fumbled
        with some of the items in her wallet when he asked her to
        produce her driver’s license.

            Following this initial interaction, Officer Miller asked
        [Appellant] to exit her vehicle and perform standardized
        field sobriety to which she agreed. The walk and turn, one
        leg stand and PBT . . . were conducted. In the walk and
        turn test, [Appellant] demonstrated four (4) of eight (8)
        clues. In the one leg stand, [Appellant] demonstrated two
        (2) of four (4) clues. When Officer Miller administered the


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         HGN . . . test, he testified that he smelled the odor of an
         alcoholic beverage on [Appellant].        He also observed
         [Appellant] swaying from side to side while attempting to
         stand still. The PBT indicated positive for alcohol.

                                 *     *   *

         This court concluded, after considering the officer’s
         testimony and the arguments presented by the parties,
         that there was sufficient evidence to find [Appellant] guilty
         of § 3802(a)(1).

Trial Ct. Op., 3/16/17, at 2.

      In the light of this evidence, we agree with the trial court that the

evidence was sufficient to show Appellant was operating her vehicle and had

“imbibe[d] a sufficient amount of alcohol such that [she was] rendered

incapable of safely driving” under section 3802(a)(1).      See 75 Pa.C.S. §

3802(a)(1); Segida, supra; Ratsamy, supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2017




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