J-S33004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

WAYNE EDWARD CHESS

                             Appellant                No. 1941 WDA 2015


            Appeal from the Judgment of Sentence August 25, 2015
       in the Court of Common Pleas of Fayette County Criminal Division
                       at No(s): CP-26-CR-0002252-2014

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 09, 2016

        Appellant, Wayne Edward Chess, appeals from the judgment of

sentence imposed in the Fayette County Court of Common Pleas following

his convictions for two counts of driving under the influence1 (“DUI”).

Appellant argues that the evidence was insufficient to support his convictions

and that his sentence was excessive. We affirm.

        The trial court summarized the underlying facts as follows:

              On September 10, 2014, Trooper Adam Sikorski was on
           patrol just after midnight in a marked patrol vehicle when
           he observed a car stopped in the middle of the roadway.
           Observing a man urinating on the passenger side of the
           vehicle, he made a U -turn, activated his lights and pulled
           in behind the vehicle. As he approached the vehicle, he
           observed a man move from the driver’s seat to the
           passenger seat. Additionally, Sikorski testified that when

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1), (c).
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           he stepped from his vehicle the engine of the parked      car
           was running and then it stopped running. The Trooper      not
           only identified the man in the vehicle as the Appellant   but
           also testified that Appellant was the only person in      the
           vehicle.

              After making contact with Appellant, the Trooper
           smelled a strong odor of an alcoholic beverage and saw
           that Appellant’s eyes were bloodshot and glassy and that
           his speech was slurred. He then asked Appellant to exit
           the vehicle to perform standardized field sobriety tests. In
           performing each of the tests, Appellant showed signs of
           impairment. In the opinion of the Trooper, Appellant was
           incapable of safe driving.

              Appellant was then placed under arrest, placed into
           custody, and transported to the Uniontown Hospital for a
           blood draw. At the hospital, Appellant agreed to provide a
           blood sample. Once the blood was drawn, it was placed in
           a blood kit and entered into evidence. As to the blood of
           Appellant, counsel for Appellant and counsel for the
           Commonwealth stipulated that if Stacy Cox from the
           Pennsylvania State Police Crime Laboratory was called to
           testify she would be recognized as an expert in the field of
           blood analysis, that she tested the blood sample at issue,
           and that the results of the test showed the blood alcohol
           content to be .177 %.

              Upon this evidence, the Appellant was convicted by a
           jury of his peers of the crimes of DUI: Incapable of Safe
           Driving and DUI: Highest Rate of Alcohol.


Trial Ct. Op., 1/7/16, at 2-3.

      After an August 2015 trial, a jury found Appellant guilty of the above

charges.    On August 25, 2015, the court sentenced Appellant to two and

one-half to five years’ imprisonment. Appellant filed a post-sentence motion

which the trial court denied. This timely appeal followed. Appellant timely




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filed a court-ordered Pa.R.A.P. 1925(b) statement and the trial court filed a

responsive Pa.R.A.P. 1925(a) opinion.

        On appeal, Appellant challenges the sufficiency of evidence and the

excessiveness of his sentence.2         With respect to his sufficiency claim,

Appellant argues that the evidence presented at trial was insufficient to

support his DUI convictions. Appellant specifically avers that the testimony

of Pennsylvania State Trooper, Adam Sikorski was not sufficient to establish

that Appellant was the operator of the car at issue.        Appellant notes that

Trooper Sikorski did not observe him operate the car and that another

individual in the vicinity could have been the driver.        Further, Appellant

emphasizes that while he does not contend that he was not intoxicated on

the night in question, he did testify at trial to deny that he had been driving.

We disagree.

        When examining a challenge to the sufficiency of the evidence 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 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 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

2
    The Commonwealth has not filed a brief in this case.



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         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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      Appellant was convicted of DUI under Subsections 3802(a)(1) and (c),

which provide:

            (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.

                                        ***

                 (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(a)(1), (c).




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       The term “operate” under the DUI code “requires evidence of actual

physical control of either the machinery of the motor vehicle or the

management of the vehicle’s movement, but not evidence that the vehicle

was in motion.” Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa.

Super. 2003) (citation omitted).   We note:

         [A]n eyewitness is not required to establish that a
         defendant was driving, operating, or was in actual physical
         control of a motor vehicle.     The Commonwealth can
         establish through wholly circumstantial evidence that a
         defendant was driving, operating or in actual physical
         control of a motor vehicle.

Id. (holding that evidence was sufficient to support defendant’s DUI

conviction where police officer did not observe defendant driving but did see

defendant in close proximity to his car on a travel lane of a public street);

see also Commonwealth v. Lehman, 820 A.2d 766, 772-73 (Pa. Super.

2003) (holding that the evidence was sufficient to conclude that the

defendant was operating a vehicle for purposes of the DUI statute where the

intoxicated defendant was found sleeping in the driver’s seat of his vehicle

with   the   engine   running,   parked    perpendicular     to   the   roadway);

Commonwealth v. Trial, 652 A.2d 338, 340 (Pa. Super. 1994) (holding

that defendant was operating his vehicle for purposes of the DUI statute

when police discovered him intoxicated and slumped over in the driver’s seat

of a car that was not “on” but keys were in the ignition).

       In the case sub judice, the trial court found that the totality of the

circumstances were sufficient to support the contention that Appellant was


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the operator of the vehicle in question. We agree. As noted by the court,

Appellant’s car was parked in a roadway when Trooper Sikorski observed

Appellant behind the driver’s seat, admittedly intoxicated. Trial Ct. Op. at 2.

The Trooper then saw Appellant move over to the passenger’s seat.          Id.

Further, the engine of the car was at least initially running, until it was

turned off by the only person in the car, Appellant. Id. Viewed in the light

most favorable to the Commonwealth, we conclude that the evidence was

sufficient to prove that Appellant was “operating” the vehicle while

intoxicated. See Johnson, 833 A.2d at 263. Therefore, Appellant’s claim

that the evidence was insufficient to support his DUI convictions must fail.

      Turning to his second issue, Appellant baldly contends that his

sentence was excessive in light of his “prior record and the testimony

adduced at trial.” Appellant’s Brief at 10. This claim constitutes a challenge

to the discretionary aspects of his sentence.       See Commonwealth v.

Hornaman, 920 A.2d 1282, 1284 (Pa. Super. 2007). This Court has stated:

         [c]hallenges to the discretionary aspects of sentencing do
         not entitle an appellant to an appeal as of right. Prior to
         reaching the merits of a discretionary sentencing issue:

            [W]e conduct a four part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, see Pa.R.Crim.P.
            [720]; (3) whether appellant’s brief has a fatal
            defect, Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).


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Commonwealth v. Lewis, 45 A.3d 405, 410 (Pa. Super. 2012) (en banc)

(some citations omitted).

      Significantly, “the Rule 2119(f) statement must specify where the

sentence falls in relation to the sentencing guidelines and what particular

provision of the Code is violated . . . .   Similarly, the Rule 2119(f) statement

must specify what fundamental norm the sentence violates and the manner

in which it violates that norm . . . .”      Commonwealth v. Googins, 748

A.2d 721, 727 (Pa. Super. 2000) (en banc). Further, in order to present a

substantial question, a defendant must show that his “sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(citation omitted). It is well-settled that a generic claim that a sentence is

excessive does not constitute a substantial question necessitating review.

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), aff’d, 125

A.3d 394 (Pa. 2015).

      Instantly, Appellant preserved his sentencing issue in his post-

sentence motion and timely appealed, but failed to include a Pa.R.A.P.

2119(f) statement in his brief.        Accordingly, we could find Appellant’s

sentencing issue waived. Commonwealth v. Gambal, 561 A.2d 710, 713

(Pa. 1989) (holding that defendant’s failure to include a Rule 2119(f)

statement would result in the sua sponte waiver of his sentencing claim).


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      Moreover, even if we were to conclude that Appellant’s sentencing

issue was not waived for failure to include a Rule 2119(f) statement,

Appellant does not raise a substantial question for our review. See Tirado,

870 A.2d at 365. Appellant provides no indication of any specific provision

of the Sentencing Code that his sentence violates and does not specify any

particular violation of the fundamental norms underlying the sentencing

process. See id. Indeed, Appellant provides only the general claim that his

sentence was excessive without citation to the record or to any legal

authority relevant to his specific claim.   See Christine, 78 A.3d at 10.

Accordingly, we conclude that Appellant’s second issue also lacks merit and

we affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/9/2016




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