J-S44004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                     v.

DAVID ALLEN YUHOUSE, II,

                            Appellant              No. 1035 WDA 2013


          Appeal from the Judgment of Sentence Entered June 21, 2013
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001376-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 22, 2014

      Appellant, David Allen Yuhouse, II, appeals from the judgment of

sentence of 11½ -

sufficiency of the evidence introduced at his trial. After careful review, we

affirm.

      Appellant proceeded to a jury trial on May 9, 2013. The facts adduced

at trial were as follows:

            On March 11, 2012[,] at approximately 3:45 a.m.[,]
      [Appellant] was driving his automobile in the northbound lane of
      State Route 119 in Upper Tyrone Township, Fayette County,
      Pennsylvania[,] when he rear-ended a white Chevrolet van.

      established at trial. However, the force of the impact caused the
      van to tumble numerous times that morning.

             Benjamin and Donna Green owned the van[,] and[,] along
      with their friend Bonnie Urbaneck[,] they were delivering Sunday
      newspapers as they had many times prior. Ben was driving. At
      trial, Ben recalled that his van was moving at a speed of 35
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       [miles   per    hour]    because        they   were    passing   through   a


              Both Ben and Donna were ejected from the van.                 Donna

       immediately recognized her husb
       burning car. He was unconscious and had suffered a broken



       [Appellant] told her he was "so sorry" for crashing into their van
       and that he was on his cell phone when the incident occurred.
       Thereafter, all of the parties were transported to Frick Hospital.

             At approximately 5:08 a.m.[,] Trooper David J. Hamer
       appeared at the hospital and spoke with [Appellant]. As the two
       discussed the incident, the trooper detected a strong odor of

       bloodshot eyes and slurred speech. Consequently, [Appellant]
       was read his O'Connell[1] warnings and then submitted to a
                                                            t was
       determined to be .116%.

Trial Court Opinion (TCO), 12/9/13, at 2                     3 (citations to the record



two counts of aggravated assault by vehicle while driving under the

influence, and one count each of driving under the influence, following too

closely, driving at unsafe speed, and careless driving.             On June 21, 2013,

Appellant was sentenced to two concurrent terms of 11½ -
____________________________________________


1
  See Commonwealth, Dept. of Trans., Bureau of Traffic Safety v.
                                                             where an arrestee
requests to speak to or call an attorney, or anyone else, when requested to
take a breathalyzer test, we insist that in addition to telling an arrestee that
his license will be suspended for one year if he refuses to take a breathalyzer
test, the police instruct the arrestee that such rights are inapplicable to the
breathalyzer test and that the arrestee does not have the right to consult




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incarceration. He filed a timely notice of appeal, as well as a timely concise

statement of errors complained of on appeal pursuant to Pa.R.A.P 1925(b).

      Appellant now presents the following questions for our review:

      1.
           judgment of acquittal where the Commonwealth failed to
           prove every element of the crime of driving under the
           influence[,] as there was a gross lack of testimony as to the
           proper chain of custody, and procedures regarding the
                                                               s?

      2.
           judgment of acquittal when basing that denial on unmade


           results of the test performed?



      A defendant may challenge the sufficiency of the evidence to sustain a

conviction of an offense charged by motion for judgment of acquittal at the

                                case. Pa.R.Crim.P. Rule 606.

      In reviewing a refusal to arrest judgment, we must consider
      whether the evidence was sufficient to uphold the verdict of the
      trial court. We must accept all the evidence and all reasonable
      inferences which may be drawn from that evidence upon which
      the fact finder could have based its verdict. If the evidence
      viewed in the light most favorable to the verdict winner is not
      sufficient to establish guilt[] beyond a reasonable doubt of the
      crime charged, then the motion should have been granted.

      Further, our standard of review for sufficiency of the evidence
      claims is well settled:

           []In reviewing the sufficiency of the evidence, we view all
           the evidence admitted at trial in the light most favorable to
           the Commonwealth, as verdict winner, to see whether
           there is sufficient evidence to enable [the factfinder] to
           find every element of the crime beyond a reasonable
           doubt. This standard is equally applicable to cases where

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         the evidence is circumstantial rather than direct so long as
         the combination of the evidence links the accused to the
         crime beyond a reasonable doubt. Although a conviction
         must be based on []more than mere suspicion or
         conjecture, the Commonwealth need not establish guilt to
         a mathematical certainty.[]

      Moreover, when reviewing the sufficiency of the evidence, this
      Court may not substitute its judgment for that of the fact-finder;
      if the record contains support for the convictions they may not
      be disturbed.

Commonwealth v. McFadden, 850 A.2d 1290, 1292                1293 (Pa. Super.

2004) (internal citations omitted).

      In the instant case, Appellant was convicted of aggravated assault by

vehicle while driving under the influence, defined as follows in 75 Pa.C.S. §

3735.1(a):

      Any person who negligently causes serious bodily injury to
      another person as the result of a violation of section 3802
      (relating to driving under influence of alcohol or controlled
      substance) and who is convicted of violating section 3802
      commits a felony of the second degree when the violation is the
      cause of the injury.

Appellant was also convicted of driving under influence of alcohol or

controlled substance, as defined in 75 Pa.C.S. § 3802(b):

      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 at least 0.10% but less than
      0.16% within two hours after the individual has driven, operated
      or been in actual physical control of the movement of the
      vehicle.

      Appellant argues that the evidence offered at his trial was insufficient

to establish the alcohol concentration in his blood, as required to sustain his



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conviction for aggravated assault by vehicle while driving under the

influence.   Specifically, Appellant claims that the Commonwealth failed to

offer sufficient evidence establishing that the sample tested to determine

                                                            .     This claim is

meritless.

      Trooper David Hamer testified that he watched as a technician drew




Hamer. Id. at 71. Trooper Hamer locked the package in the trunk of his

police cruiser. Id. He removed the package when he returned to the police

barracks. Id. Trooper Hamer signed the blood into the property room, and

requested that the blood be sent to a laboratory for chemical testing. Id.

The packaged blood was assigned a property record number, and placed in

                               Id. Subsequently, Trooper Hamer received a

report from a forensic scientist stating that she had tested the blood. Id. at



from the Greensburg Regional Crime Laboratory[,] tested the blood provided



alcohol content of that blood was .116 percent. Id. at 62 - 63.

      Viewing this evidence submitted in the light most favorable to the



blood alcohol level was .116 percent. The record supports the trial cou

finding of an unbroken chain of custody while the blood was in Trooper

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                                                                             12.

However, Trooper Hamer testified that the sealed blood samples remained

secured in the trunk of his cruiser until he returned to the police barracks,

where the sample was assigned an identification number and placed in the

property room. There is nothing in the record that suggests the blood was
                                                                              2




custody. Appellant claims, in the second issue he raises before this Court,




contends that he merely stipulated to the results of the blood test, not that



performed. This contention is not supported by the record.

        At trial, the Commonwealth produced the forensic scientist who tested




____________________________________________


2
    To the extent that Appellant challenges the credibility of the evidence, such

sufficiency. See Commonwealth v. Wilson, 825 A.2d 710, 713 714 (Pa.
Super. 2003). Appellant has not raised a challenge to the weight of the
evidence.




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stipulate to the blood alcohol as being .116 if you want that stipulation you

                                                                 th agreed to

the stipulation, and clarified, as we have noted, infra, that the testimony



the Greensburg Regional Crime Laboratory[,] tested the blood provided to

her by the Pennsy

alcohol content of that blood was .116 percent. Id. at 62 -

                                                        Id. Thus, our review

of the record shows that Appellant did not stipulate solely to the blood

alcohol content of the sample; rather, Appellant stipulated to the fact that

the blood sample in question was alleged to be his, that the blood in

question was tested at the Greensburg Regional Crime Laboratory by Lisa

Moore, and that the sample was provided to the laboratory from the State

Police.

      Trooper Hamer then testified that he received a report from the

Greensburg Regional Crime Lab signed by Lisa Moore stating that she had

tested the blood sample he had placed in the property room, and she had

provided him with the results of that test.   Id. at 71    72.   As such, we




conviction for aggravated assault by vehicle while under the influence.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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