J-S61009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

DARIN JON RILEY,

                          Appellant                    No. 106 EDA 2018


      Appeal from the Judgment of Sentence Entered October 24, 2017
               In the Court of Common Pleas of Carbon County
            Criminal Division at No(s): CP-13-CR-0000222-2016


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 17, 2018

      Appellant, Darin Jon Riley, appeals from the judgment of sentence of six

months’ probation and fines, imposed after he was convicted, following a non-

jury trial, of driving under the influence of alcohol - general impairment (DUI),

75 Pa.C.S. § 3802(a)(1), and careless driving, 75 Pa.C.S. § 3714. We affirm.

      Appellant raises two issues for our review:
      I.    Whether there was sufficient evidence to support the [t]rial
            [c]ourt’s finding of guilt[] on Count 1, DUI General
            Impairment, when [the] evidence failed to establish that []
            Appellant was incapable of safe driving[?]

      II.   Whether there was sufficient evidence to support the [t]rial
            [c]ourt’s finding of guilt on Count 3, Careless Driving, when
            the evidence failed to establish that [] Appellant operated
            his vehicle with careless disregard for the safety of others
            or property?

Appellant’s Brief at 4.
J-S61009-18



       We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough opinion of the

Honorable Roger N. Nanovic of the Court of Common Pleas of Carbon County.

We conclude that Judge Nanovic’s well-reasoned opinion accurately disposes

of the issues presented by Appellant. See Trial Court Opinion (TCO), 2/8/18,

at 1-16.1    Accordingly, we adopt Judge Nanovic’s opinion as our own and

affirm the judgment of sentence on that basis.2

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/18


____________________________________________


1 We recognize, however, that Judge Nanovic incorrectly states that Appellant
was stopped at 6:30 a.m., see TCO at 11 n. 7., when the record demonstrates
that Appellant was stopped at 6:30 p.m., see N.T. Trial, 5/8/17, at 10.
According to Appellant, this mistake calls into question the trial court’s factual
finding that “it was … dusk outside” at the time of the stop. Appellant’s Brief
at 18. Appellant is incorrect. The arresting officer testified that it was dusk
at 6:30 p.m. when he stopped Appellant’s vehicle. See N.T. Trial at 17.
Additionally, the video recording of the stop, taken by the officer’s dashboard
camera, corroborates the officer’s testimony. Therefore, the record supports
Judge Nanovic’s conclusion that it was dusk when the stop occurred.

2 We do not adopt the portion of Judge Nanovic’s opinion which addresses a
third issue raised by Appellant in his Pa.R.A.P. 1925(b) concise statement, but
which Appellant has abandoned on appeal to this Court. See TCO at 17-20.

                                           -2-
                                                                                                      Circulated 11/20/2018 01:32 PM




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              Defendant

Cynthia Dyrda-Hatton, Esquire                             Counsel for the Commonwealth
Assistant District Attorney

Matthew J. Rapa, Esquire                     Counsel for the Defendant

                                       MEMORANDUM OPINION

Nanovic, p,J. - February 8, 2018

          Darren        Jon     Riley    ("Defendantu)            has   appealed                         from               the

judgment       of       sentence       entered       on    October      24,        2017,                       for          his

convictions of driving under the influence (general impairment}1

and careless dri ving2 fol lowing a nonj ury trial held on May 8,

2017.         For the reasons which              follow,          we conclude                        Defendant's

grounds for appeal are without merit.

                           PROCEDURAL AND FACTUAL BACKGROUND

        On September 4,            2015,   at approximately 6: 30 A. M., Trooper

Mark     E.    Bower       of   the     Pennsylvania          State     Police                       initiated a

traffic stop of a vehicle being driven by Defendant eastbound on

State Route 248 for excessive tinting of the front passenger and

driver side windows which obstructed his view into the interior


    75 Pa.C.S.A.    s   3802(a) (1).
2
    75 Pa.C.S.A.    §   3714(a).

                                            [FN-3-18]
                                                 1


                                                              '
of      the    vehicle.            (N.T.,    5/8/17,         pp.9-10).              After Trooper Bower

activated his overhead lights, Defendant exited Route 248 at the

Bowmanstown              Exit       and     brought      his        vehicle          to      a    stop           on    the

shoulder of East Lizard Creek Road.                                       Trooper Bower noted that

there         was    a    delayed           response         between          when      he       activated             his

lights and Defendant pulled over.                                 (N.T., 5/8/17, p.40).

         Trooper           Bower          requested          to        see      Defendant's                     driver's

license,        registration               and proof          of       insurance,           which           Defendant

provided.             (N . T . ,    5I8I 1 7 ,   pp . 12 ,    29,       44) ,       During this initial

contact,            Trooper         Bower        detected          a      strong        odor           of        alcohol

emanating from the vehicle,                            noticed that             Defendant's eyes were

glassy        and        bloodshot,          and       that       his        clothing            was        a     little

disheveled,              and       observed        a    front          seat      female          passenger              in

Defendant's vehicle.                       (N.T.,      5/8/17, pp.12-14).                     In response to

Trooper         Bower's            inquiry        from        where          Defendant            was           coming,

Defendant stated he was coming from the                                         BoatYard Bar where he

admitted to having two beers with dinner.                                        (N.T., 5/8/17, p.13).

At this point,               Trooper Bower noted that                         Defendant's speech was

slightly slurred and hesitant,                                (N . T, ,      5 I 8 I 1 7,    pp . 13,           2 7,   58 -

59) .

        After verifying through use of the computer in his patrol

car     the         information            Defendant          had       provided,            Trooper               Bower

returned        Defendant's               documentation            and       requested            Defendant             to


                                                    (FN-3-18]
                                                        2
exit his vehicle to conduct field sobriety tests.                                   As Defendant

did     so,      Trooper      Bower     noted        that   Defendant            had     difficulty

getting out of the vehicle - he held on to the vehicle's door

for support -             and was unsteady on his feet.                          (N,T.,      5/8/17,

pp.15, 29, 47).              Defendant commented to the Trooper that he had

a bad back.         (N.T.,      5/8/17, p.15).

        Trooper Bower had Defendant walk to the rear of Defendant's

vehicle - to the area between Defendant's vehicle and the police

cruiser - to perform the field sobriety tests.                               As Trooper Bower

fallowed Defendant,              the    strong odor of            alcohol         Trooper Bower

detected         earlier     was   now     noted       to   be     coming         directly        from

Defendant         and    Defendant       was    observed         having         some     difficulty

walking around the rear of his vehicle.                             ( N. T. ,    5I8I 17 ,   pp. 15,

29-30,     50).         The area Trooper Bower had selected for the field

sobriety         tests    was    dry,    flat,       and    even,      and       there     were    no

adverse weather conditions.                (N.T.,       5/8/17, pp.17-18).

        In addition to administering a horizontal gaze nystagmus

(HGN) test and portable breath test (PBT), ·both of whose results

were inadmissible and therefore not disclosed at trial, Trooper

Bower instructed and demonstrated for Defendant the "walk and

turnn      and    "one-legged          stand"    field      sobriety            tests.        (N. T.,


5/8/17 I      PP• 18-22) ,       During Defendant's performance of each of

these tests, Trooper Bower noted multiple clues of intoxication,


                                           [FN-3-18]
                                                 3
    including    Defendant's          failure    to        follow   instructions,     loss    of

    balance,    swaying,       walking off           the    line,   and walking backwards

    twice to maintain his balance.                    (N.T.,    5/8/17, pp.30-31,       51-56;

Conunonwealth          Exhibit No .1         Intoxication Worksheet) . 3               Several

    times during these tests,            Defendant again advised Trooper Bower

that he had a bad back.                 (N.T., 5/8/17, pp.17, 21-22, 31, 47).

         Trooper       Bower     next     placed           Defendant     under   arrest      for

driving        under    the    influence        and        transported    Defendant    to    the

Palmerton        Hospital       for    chemical        testing      of   Defendant's      blood

which Defendant consented to.

         Trooper Bower was the only witness at the trial held on May

8,     2017.     Defendant was present but did not testify.                           At this

trial, Trooper Bower expressed his opinion, based in part on his

training in administering field sobriety tests and contact with


3 With respect to these two field sobriety tests, in addition to describing
his observations elsewhere throughout his testimony, Trooper Bower testified
as follows:

     Q ... As a result of doing the walk-and-turn, what were your
     observations and did you notice that there [were) any clues noted?
     A. Yes.   Based on the walk-and-turn, the individual clearly did an
     improper turn.    He stopped walking, took two steps back. He missed
     heel to toe.   He stepped off the line and he raised his arms, and if
     you raise your arms, it means you can't keep your balance because
     the one thing we look at as far as keeping your balance is if you
     keep your hands at your side.
     Q. And the one-leg stand test?
     A. The one-leg stand, he swayed and he puts his foot down.         He
     actually raised his arm once.      I did not check that, but he did
     raise his arm in the beginning.      I had to re-tell him to put his
     hands down by his side.

(N.T.1   5/8/17, pp.32-33),


                                           [FN-3-18)
                                                 4
    other individuals who were determined to be under the influence,

    that Defendant was under the influence of alcohol at the time of

    the    traffic       stop      and    was    incapable       of    safe    driving.          (N.T.,

    5/8/17,      pp.7-9,         33-34,    62-63).         Trooper Bower further testified

    that Defendant's body movements and speech at the time of trial

    exhibited       no      difficulty          with       balance    or    slurred      speech,     in

    contrast      to     what      he     had    observed       at    the   time   of     the     stop.

    (N.T.,      5/8/17, pp.25-26).               Finally, a DVD of the stop taken from

    a   camera mounted on the dash board of Trooper Bower's                                     cruiser

    was placed in evidence and viewed by the court during the trial.

           At    the     conclusion         of    Defendant's         bench     trial,     we    found

    Defendant guilty of the charges of driving under the influence

of        alcohol      to    a    degree    which          rendered    him incapable        of     safe

driving,          careless          driving        and       windshield        obstruction         (sun

screening} . 4              Defendant was acquitted of the summary offense of

reckless driving. 5                 On October 24,            2017,    Defendant was given a

six-month probationary sentence and a                                fine of    $300. 00    for the

driving under the                  influence offense and fined $25. 00                     each for

careless driving and driving with a windshield obstruction.                                         No

4 75 Pa.c.s.A. § 4524(e) (1).  This conviction is not at issue in the instant
appeal.
5  75 Pa.C.S.A. § 3736{a).       Additionally, at the outset of trial the
Commonwealth elected not to pursue a second driving under the influence
offense, having a blood alcohol concentration of at least 0.08 percent but
less than 0.10 percent within two hours of driving {75 Pa.C.S.A, §
3802 (a) (2)), the results of Defendant's blood alcohol content having been
suppressed pursuant to our order dated September 13, 2016, on the basis of a
Birchfield motion.

                                                 (FN-3-18)
                                                       5
    post-sentence motions were filed.                       Defendant's direct appeal to

    the Pennsylvania Superior Court was filed on November 16, 2017.

           Defendant         raises two    primary issues            on appeal:        (1)   that

    the    evidence        was     insufficient       to   sustain his      convictions       for

    driving under the influence and careless driving,                          and     (2)   that

    the court       "improperly shifted the burden of proof to him when

    determining whether back injury affected his performance during

    field sobriety testing."               See Defendant's Concise Statement                   of

Matters Complained of on Appeal filed on December 18, 2017.6

                                           DISCUSSION

                                 Sufficiency of the Evidence

           The elements of the offense of driving under the influence

of        alcohol         (general    impairment)          require   the    Commonwealth       to

prove that           the     Defendant    "was driving,          operating or in actual

physical control of                  the movement of a vehicle during the time

when he           [ ) was rendered incapable of safely driving due to the

consumption of alcohol."                   Commonweal th v.          Teems,    74    A. 3d   142,

145       {Pa.Super.        2013)     (quoting Commonwe2.lth v.            Segida,    985 A.2d

8 71,      87 9    (Pa.    2009)     (holding that the offense of driving under


6
  By order dated November 17, 2017, we directed Defendant to file a concise
statement of the matters he intended to raise on appeal within twenty-one
days.    Although this concise statement was not timely filed within this
period, we understand this delay was attributable to delay by the Clerk of
Courts' office in entering our order and having it rnai led to Defendant's
counsel.   Accordingly, Defendant should not be held responsible for the delay
in filing his concise statement, and the issues raised therein should be
addr�ssed.

                                            [FN-3-18]
                                                  6
the influence set forth at 75 Pa.C.S.A.                §   3802(a) {1)   is an \\at

the time of driving" offense)), appeal denied, 79 A.3d 1098                      (Pa.

2013) .     For   careless    driving,        the   elements      are    that     the

Defendant was driving a vehicle           in careless disregard for the

safety of persons or property.       75 Pa.C.S.A. § 3714(a).

      The   standard of    review for     a    sufficiency       claim   is     well-

settled:

            A challenge to the sufficiency of the evidence is
            a question of law, subject to plenary review.
            When reviewing a sufficiency of the evidence
            claim, the appellate court must review all of the
            evidence and all reasonable inferences drawn
            therefrom in the light most favorable to the
            Commonwealth, as the verdict winner. Evidence
            will be deemed to support the verdict when it
            establishes each element of the crime charged and
            the commission thereof by the accused, beyond a
            reasonable   doubt.    The  Commonweal th  need not
            preclude   every    possibility   of   innocence or
            establish the defendant1s guilt to a mathematical
            certainty.   Finally,    the trier 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.   Teems,     74 A.3d at       144-45       (quoting Commonwealth

v. Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010)).

            It is not within the province of [the reviewing
            court] to re-weigh the evidence and substitute
            [its] judgment for that of the fact-finder. The
            Commonwealth's burden may be met      by wholly
            circumstantial evidence and any doubt about the
            defendant's guilt is to be resolved by the fact-
            finder unless    the evidence  is  so weak and
            inconclusive that,    as a matter of law,     no
            probability of    fact can be drawn from the
            combined circumstances.

                                 [FN-3-18]
                                     7
Commonwealth       v.    Mobley,       14    A. 3d      88 7,    889-90       (Pa. Super.   2011)

 (quoting    Commonwealth         v.    Mollett,         5      A.3d   291,     313   (Pa.Super.

2010)).

                         (1)   Driving Under the Influence

     Here,       Defendant was          convicted of             driving while        under   the

influence of alcohol to a degree that rendered him incapable of

safe driving.          75 Pa.C.S.A. § 3802(a) (1).

             In order to prove a violation of this section,
             the   Commonwealth    must   show:   (1)   that   the
             defendant was the operator of a motor vehicle and
             (2)   that   while   operating   the   vehicle,   the
            defendant was under the influence of alcohol to
             such a degree as to render him or her incapable
            of safe driving. To establish the second element,
            it must be shown that alcohol has substantially
            impaired the normal mental and physical faculties
            required     to    safely   operate    the    vehicle.
            Substantial impairment, in this context, means a
            diminution or enfeeblement in the ability to
            exercise judgment, to deliberate or to react
            prudently      to    changing    circumstances     and
            conditions. Evidence that the driver was not in
            control of himself, such as failing to pass a
            field sobriety test, may establish that the
            driver was under the influence of alcohol to a
            degree which rendered him incapable of safe
            driving, notwithstanding the absence of evidence
            of erratic or unsafe driving.

Commonwealth      v.     Smith,        831    A.2d       636,      638    (Pa.Super.        2003)

(emphasis added)         (quoting Commonwealth v.                  Palmer,      751 A.2d 223,

228 (Pa.Super. 2000)), appeal denied, 841 A.2d 531 (Pa. 2003}.

    Additionally,

            [w] i th respect       to the type, quantum,                  and quality
            of     evidence        required   to  prove                    a  general

                                            [FN-3-18]
                                                8
            impairment violation under              Section   3802(a){l),
            the   Pennsylvania  Supreme              Court    in   Segida
            continued:

               Section 3802 { a) ( 1),      like   its predecessor
                [statute],     is    a   general     provision     and
               provides     no    specific restraint upon the
               Commonweal th 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 offender1s
              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. 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.

Commonwealth v.    Teems,   74 A.3d at        145   (quoting Commonwealth v.

Segida,   985 A.2d at 879)).



                                  [FN-3-18)
                                      9
     In this case,       there is no evidence of erratic driving or

the occurrence of driving infractions before the traf fie stop.

(N.T.,    5/8/17,     pp.38-39,     41-42,      62).        Notwithstanding      the

absence   of   such    evidence,        it    needs    to    be   emphasized    that

"[e]vidence of erratic driving is not a necessary precursor to a

finding of gui 1 t under the relevant statute."                    Commonweal th v.

Mobley,   14 A. 3d at 890.        Rather,      "[t)he Commonwealth may prove

that a person is incapable of driving through the failure of a

field sobriety test."      Id.

     In Mobley, the Superior Court

           found the evidence sufficient to prove Mobley was
           incapable of safely driving his vehicle, even
           though he was not driving erratically before
           being stopped by police, where Mobley failed four
           field sobriety tests, was disoriented, exhibited
           slow speech, and refused to submit to a chemical
           blood test.    Additionally, an odor of alcohol
           permeated from Mobley's person when he exited his
           vehicle.

Commonwealth   v.     Brown,     2017    WL    2610029      *3    (Pa.Super.   2017)

(citations omitted).           In Mobley,      the defendant also failed to

come to a complete seep at a stop sign.                Commonwealth v. Mobley,

14 A.3d at 889.

     By comparison,      and similar to the              facts    in Mobley,   here

Defendant failed two field sobriety tests, exhibited slurred and

hesitant speech, had glassy and bloodshot eyes, and had a strong

odor of alcohol emanating from his vehicle and from his person


                                    (FN-3-18)
                                         10
    after he exited the vehicle.             Additional        facts   not present    in

Mobley,        but present here,       include Trooper Bower's observations

    that     Defendant    needed   to hold onto         the   car door   to   exit   his

vehicle and was unsteady on his feet before any field sobriety

tests         were    conducted;     that        when   Trooper    Bower      requested

Defendant's          license   and registration,         Defendant     had difficulty

in retrieving these i terns            and rather        than pulling these cards

from his wallet as was             requested,       Defendant handed the trooper

his entire wallet, which Trooper Bower interpreted as a cue that

Defendant         would    have    difficulty       retrieving     the   items   alone

    (N.T.,    5/8/17, pp.12, 28-29, 44, 59); that Defendant admitted to
                                                7
consuming two beers with dinner before the stop; and that the


7 Although no evidence was elicited as to when the Defendant had dinner, the
stop was at 6:30 A.M. and, in all likelihood, at least six or seven hours
after Defendant would have had dinner.   If this is true, this clearly throws
doubt either on how much Defendant had to drink or when he last consumed
alcohol, or perhaps both.
   In the context of inferences to be made from circumstantial evidence, the
Pennsylvania Supreme Court in Segida in reversing the Superior Court's
determination that the evidence was insufficient to establish when the
Defendant had been driving and hence whether he was incapable of driving
safely at the time that he was driving, stated that the fact-finder is not
required to suspend common sense and that the arresting officer's testimony
that "it was 'doubtful' that the accident had occurred two or three hours or
even ten minutes prior to his arrival on the scene 'due to traffic on the
road,'u was sufficient to establish that Defendant had been driving his
vehicle shortly before the officer's arrival.   This inference, combined with
evidence of the strong odor of alcohol coming from Defendant, Defendant's bad
performance on chr ee field sobriety tests, Defendant's high blood alcohol
concentration, and the occurrence of a one vehicle motor vehicle accident,
was found sufficient to prove that the defendant drove when he was incapable
of doing so safely. 985 A.2d at 880-81. Expounding on inferences to be made
from circumstantial evidence, the Pennsylvania Superior Court in Commonwealth
v. Teems stated:

      We remind [Defendant], however, that our jurisprudence does not
      require fact-finders to suspend their powers of logical reasoning or

                                       (FN-3-18]
                                            11
    arresting officer, Trooper Bower, expressly opined Defendant was

    under the influence and incapable of safe driving.                        Based on all

    of this evidence and our acceptance of Trooper Bower's opinion

    testimony    as   an    experienced,          trained     officer        who    had   the

    opportunity to observe Defendant up close, we found the evidence

    sufficient to establish beyond a reasonable doubt that Defendant

    drove while incapable of safely driving,                  and that such was due

    to the consumption of alcohol.8

                               (2)       Careless Driving

        The     summary    offense       of   careless      driving     is     defined    in

    Section 3714 of the Motor Vehicle Code as fol lows: "Any person

who drives a vehicle in careless disregard for the safety of

persons or property is guilty of careless driving,                                 a summary

offense."         75 Pa.c.s.A.       §    3714.       The only proof necessary to

establish this offense is that the defendant drove a vehicle in

careless        disregard    for     the      safety    and   property        of     others.

      common sense in the absence of direct evidence. Instead, juries may
      make reasonable inferences from circumstantial evidence introduced
      at trial.

74 A,3d 142, 148 (Pa.Super. 2013) (citing Segida).
8
  To the extent Defendant seeks to raise a weight of the evidence claim by
contending "f tJ he court erred in failing to properly review and give weight
to the video footage entered into evidence which did not depict the events
Trooper Bower claimed to have observed," ( see Concise Statement of Matters
Complained of on Appeal, paragraph 10), a weight of the evidence claim must
be preserved either in a post-sentence motion, by a written motion before
sentencing, or in an oral motion at sentencing.    Commonweal th v. Giron, 155
A.3d 635, 638 (Pa.Super. 2017). Since Defendant did not file post-sentence
motions or preserve his challenge to the weight of the evidence in a written
motion or orally at sentencing, the claim has been waived, and requires no
further discussion.    Id. at 638.

                                          [FN-3-18)
                                              12
    Matter of Huff, 582 A.2d 1093, 1097                      (Pa.Super. 1990)        (en bane),

    affirmed,         604 A.2d 1026     {Pa. 1992).               "[TJ o sustain the charge

    however, there must be evidence of negligent acts, amounting to

    a      careless disregard of         the rights          or safety of others,            the

    consequences of which could reasonably have been foreseen by the

    driver of the vehicle."             Commonwealth v. Podrasky, 378 A.2d 450,

    4 52    (Pa. Super. 1977)      ( en bane)         ( quoting     Commonwealth v. Forrey,

    92 A. 2d 233,        234    (Pa. Super.     1952) ) .    "There is no causation or

    particular result           required by the             statute."         Commonwealth v.

    Wood, 475 A.2d 834, 836 (Pa.Super. 1984).

            The offense of careless driving has two elements: an actus

    reus     -   driving a vehicle; and a mens rea - careless disregard.

Commonwealth             v.    Wood,    475      A.2d       at      836.       The   mens    rea

requirement,            careless disregard,            \\ implies    'less than willful or

wanton conduct but more than ordinary negligence or the mere

absence          of    care    under   the     circumstances.'"               Commonwealth   v.

Gezovich, 7 A.3d 300, 301 (Pa.Super. 2010) .9                              Ordinary negligence

of the type necessary to prove tort liability will not· sustain a

criminal conviction since such does not include the culpability

9
  As noted in Commonwealth v. Gezovich, even though the offense under review
in Matter of Huff, Podrasky, and Wood was then called "reckless driving," the
applicable mens rea as interpreted in these cases was that of "careless
disregard." 7 A.3d at 301 n.1. Since these three cases were decided, the new
offense of reckless driving requiring a higher level of culpability, "willful
or wanton disregard for the safety of persons or property," was established,
see 75 Pa.C.S.A. § 3736, with the mens rea of ucareless disregard" as
interpreted in Matter of Huff, Podrasky and �lood, applicable to the offense
now known as careless driving as appears in 75 Pa.C.S.A. § 3714.

                                              (FN-3-18)
                                                 13
component of a criminal offense and would offend substantive due

process.         See     Commonweal th v.       O' Hanlon,   653 A. 2d        616,    617-18

 {Pa.   1995).

        Section       302    of   the   Crimes     Code   sets        forth   the    general

requirements          of     criminal     culpability.           As     pertinent      here,

Section 302 provides:

             §    302.      General requirements of culpability.

                                                 * * *
                  (b)       Kinds of culpability defined.-

                                                * * *
                     {3)  A person acts recklessly with respect
                  to a material element of an offense when he
                  consciously   disregards   a   substantial   and
                  unjustifiable risk that the material element
                  exists or will result from his conduct. The
                  risk must be of such a nature and degree that,
                  considering the nature and intent        of the
                  actor's conduct and the circumstances known to
                  him, its disregard involves a gross deviation
                  from the standard of conduct that a reasonable
                  person would observe in the actor's situation.

                    ( 4) A person acts negligently with respect
                 to a material element of an offense when he
                 should   be   aware   of   a   substantial  and
                 unjustifiable risk that the material element
                 exists or will result from his conduct. The
                 risk must be of such a nature and degree that
                 the actor's failure to perceive it, considering
                 the nature and intent of his conduct and the
                 circumstances known to him, involves a gross
                 deviation from the standard of care that a
                 reasonable person would observe in the actor's
                 situation.

18 Pa.c.s.A.      §    302 (b) (3),     (4).



                                          [F'N-3-18]
                                               14
         Criminal negligent             requires     only that the accused \\should

 be aware" of the substantial and unjustifiable risk created by

 his conduct,         not that he is actually aware of such risk.                                    That

criminal negligence              subjects an of fender to criminal                         liability

is    justified        given     that     criminal       negligence         involves           a    gross

deviation from reasonable care "such that it would be shocking

to allow the actor's lack of awareness to excuse his actions in

the     circumstances."            Commonweal th         v.     Heck,    4 91     A. 2d    212,       226

 {Pa.Super.      1985),       affirmed,     535 A.2d 575             (Pa.       1987).         Criminal

recklessness,          in contrast, requires a recognition,                       consideration,

and conscious disregard of the danger posed by the conduct in

question.        "While       both      criminal         negligence         and       recklessness

involve      'gross' deviations from reasonable conduct,                              recklessness

includes        conscious         disregard         of    a      risk       whereas            criminal

negligence       is     accompanied        by    lack      of    awareness            of   a       risk."

Commonwealth v. Heck,             491 A.2d at 216.              See also Commonwealth v.

          475        A,2d   at    836-37        (noting        the      distinction            between

"conscious"           and   "careless"          disregard         \\connotes           a   definite

difference       in     the      intent    requirement            with      a     lesser           intent

re qui red   to establish            [ careless J    driving") .            It    is because of

these    differing gradations              of mens rea that driving under the

influence       of    alcohol     unaccompanied           by     evidence        of    erratic         or

unsafe    driving       does     not    establish        recklessness per se and                       is


                                           [FN-3-18)
                                               15
 insufficient to support a conviction of reckless driving under

75 Pa.C.S.A.          §       3736 (a): there must be other tangible indicia of

unsafe driving to establish the offender's subjective awareness

of      the    risk        which       he        is     charged       with          having        consciously

disregarded.              See     Commonwealth v.               Jeter,         937    A.2d 466,          467-68

 (Pa.Super. 2007).

        Here,      Defendant               was         driving        a        motor        vehicle         with

excessively        tinted windows                     while    intoxicated during                  the     early

morning hours when it was still dusk outside.                                              In addition to

himself,       a front seat passenger was present in the car.                                               Even

though        Defendant         may        not    have        known       the       exact        quantity     of

alcohol he could consume and still legally drive,                                            certainly he

should have been aware of the possible consequences and dangers

of   driving      under          the       influence,          and    been       aware       that     he    was

incapable of safe driving.                        While we agree that the evidence was

not sufficient to establish a conviction for reckless driving -

that     Defendant             "consciously              disregarded            a     substantial           and

unjustifiable             risk"       of    injury        to    others               we · -conc Luded       the

evidence was sufficient under the totality of the circumstances

to     establish          a     "careless             disregard"          of    a      substantial          and

unjustifiable risk of injury to others and that such involved a

gross    deviation             from    the       standard       of    care          that     a    reasonable

person would observe.


                                                  (FN-3-18)
                                                      16
                                      Burden of Proof

         Defendant      next    argues    that       we     "erred    and   infringed upon

 [his]     constitutional       rights    to a        presumption of           innocence   and

 the     right    to   remain   silent,       when        (we]   improperly     shifted    the

burden      of    proof   to    him    when    determining           whether    back   injury

affected         his    performance       during           field     sobriety      testing."

 (Concise Statement of Matters Complained of on Appeal, paragraph

8).      Defendant apparently bases this contention on the following

remarks made by the court at the conclusion of the evidence in

explaining our verdict:

                 The Court understands that the defense has raised
                 that several of the items that were clues as
                 identified by Trooper Bower may be attributable
                 to back difficulties that Mr. Riley has, and
                 there was some indication on the video observed
                 by the Court that Mr. Riley did rub his back on
                 occasion and also stretched his back.

             There was no evidence presented today as to the
             nature of any back injury that Mr. Riley has.
             The Court would need to speculate with respect to
             that.    There was no testimony presented or
             evidence  presented by the passenger      in  the
             vehicle being driven by Mr. Riley.     The Court
             does not know who that was other than there was
             reference in the testimony to the fact it was a
             woman.

(N.T., 5/8/17, p.82).

       Defendant clearly misunderstands the nature of the court's

comments.         Without dispute,        the Commonweal th has an unshifting

burden of proving beyond a reasonable doubt all elements of a


                                         [FN-3-18]
                                              17
 crime    necessary for conviction.                     Nothing the          court      said could

 reasonably         be    interpreted as          detracting      from       that       fundamental

precept of due process.

        This     does       not     mean,       however,       that     in     explaining          its

decision       the       court     is    forbidden      from    reviewing          or   commenting

upon the strength or weight of the evidence.                                 Defendant made it

a     point    on     the   morning        of    his   arrest     of    repeatedly           telling

Trooper Bower that he had a bad back in an apparent attempt to

explain this as the reason why he had difficulty getting out of

his car and performing the field sobriety tests.                                   Similarly, at

trial such evidence had a tendency to challenge a key piece of

the Commonwealth's evidence that Defendant was incapable of safe

driving:       that      Defendant's problems with balance and failure to

follow    instructions was not due to                      intoxication,           but to a bad

back.

        The court's comments were directed to the evidence that was

presented with            respect       to Defendant's         "bad back," not who had

the burden of proving that evidence.                           As accurately appears in

the remarks of the court as to this evidence, neither the nature

of     Defendant's          back        problem     nor    how     or        why     this     would

necessarily affect his movements,                      balance or ability to perform

field sobriety tests was ever explained.                          Just because a boy in

the    woods    repeatedly          calls       "wolf,"    does   not    mean        there    is    a


                                            [FN-3-18]
                                                18
 wolf.       And just because Defendant repeatedly said he had a bad

 back and implied that this                      somehow affected his movements that

 night, does not mean that it did.

         Trooper          Bower         testified        that       he      took     into     account

 Defendant's         claim        when        conducting        his      tests      and    evaluating

 Defendant      {N.T.,       5/8/17,          pp.31-32,      55),     and we found,         based on

 the evidence         presented,           that       the Commonwealth proved beyond a

reasonable          doubt        each    of     the     crimes      of    which      Defendant     was

convicted.           See Commonwealth              v.    Rose,        321 A.2d      880,    884    (Pa.

1974)     (Pomeroy,         J.    plurality)          (''(T]he Commonwealth's burden to

prove beyond a reasonable doubt all elements of the crime does

not require it to disprove a negative.");                                see also Commonwealth

v.    Ragan,        652    A.2d        925,     930     (Pa.Super.          1995)     (holding     the

Commonweal th had no burden                     to disprove defendant's                   claim that

the odor of alcohol on his breath was due to his ingestion of a

mouth     deodorizer         where        the     defendant,          who    was     convicted      of

driving under the influence of alcohol, presented no evidence of

the source of the odor of alcohol at the time· he was stopped) ,

appeal denied,            664 A.2d 540          (Pa.    1995); Commonwealth v.               Segida,

985   A.2d     at     879,       n.6     (holding       that     the     Commonwealth        had    no

burden to prove defendant drank no alcohol after a one-car motor

vehicle accident,            where defendant,               who was convicted of driving

under the influence of alcohol, claimed this was a possibility).


                                               (r:N-3-18]
                                                  19
                            CONCLUSION

     For the foregoing reasons,     we find no merit to the issues

Defendant intends to raise on appeal.


                               BY THE COORT:



                                                                                   P.J.




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