J-S07024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JASON P. KEMFORT,

                            Appellant                   No. 975 MDA 2014


            Appeal from the Judgment of Sentence of May 16, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001442-2013


BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 13, 2015

       Appellant, Jason P. Kemfort, appeals from the judgment of sentence

entered on May 16, 2014, following his bench trial convictions of two counts

of driving under the influence of alcohol and one count of obedience to

traffic-control devices.1 Upon review, we affirm.

       The trial court set forth the facts of this case as follows:

              On January 19, 2013, at approximately 9:53 p.m.,
         Officer Mark Oxenford was on duty in a marked patrol
         vehicle and observed a 2002 white Ford Taurus make a left
         turn on South 3rd Avenue by Penn Avenue. Officer Oxenford
         testified that a posted sign prohibits a left hand turn at that
         inter[sec]tion. Based on that observation, Officer Oxenford
         initiated a vehicle stop. [Appellant] pulled over and struck
         the curb during this traffic stop. The front passenger side
         tire went onto the curb.
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1
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), and 3111(a), respectively.
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           Upon making contact with [Appellant], Officer Oxenford
        detected a slight odor of an alcoholic beverage coming from
        the vehicle. The [o]fficer also noticed that [Appellant’s]
        eyes were blood shot. [Appellant] admitted that he was
        coming from a bar on 3rd and Spruce Streets and at the bar
        he consumed 4 to 5 Miller Light beers.

            Officer Oxenford asked [Appellant] to step out of the
        vehicle to perform [standardized field sobriety tests
        (“SFST”)].    [Appellant] had trouble getting out of the
        vehicle because his left arm was wrapped around his
        seatbelt. Officer Oxenford testified that he was certified to
        administer the SFST[] on the date in question. He further
        testified that [Appellant] failed all SFST[] given to him
        (Walk & Turn, The One Leg Stand, and the [Portable
        Breathalyzer Test] was positive for alcohol).         At the
        conclusion of said SFST[], [Appellant] was placed under
        arrest for suspicion of Driving Under the Influence (“DUI”).
        [Appellant] was transported to the DUI Center for a sample
        of his blood to be withdrawn.        The consented results
        indicated that [Appellant’s] [blood alcohol content (“BAC”)]
        was 0.103.

Trial Court Opinion, 8/26/20014, at 2.

     The matter proceeded as follows:

            On January 20, 2013, a criminal complaint was filed
        against [Appellant] charging him [with the aforementioned
        crimes]. On May 16, 2014, a bench trial was held on the
        matter.    On the same date, the [trial] court found
        [Appellant] guilty on all three (3) counts and [Appellant]
        was sentenced. On June 6, 2014, [Appellant] filed a notice
        of appeal with [this Court]. On June 12, 2014, [the trial]
        court ordered [Appellant] to file a concise statement of
        [errors] complained of on appeal pursuant to Pa.R.A.P.
        1925(b). [Appellant] filed a concise statement on June 27,
        2014.    [The trial court issued an opinion pursuant to
        Pa.R.A.P. 1925(a) on August 26, 2014.]




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Id. at 1 (superfluous capitalization omitted).

       On appeal, Appellant presents the following issues2 for our review:

          A. Whether the Commonwealth failed to establish probable
             cause for [Appellant’s] arrest for a violation of 75 Pa.C.S.
             § 3802(a)(2)?

          B. Whether the evidence introduced at trial by the
             Commonwealth was insufficient to support a conviction
             for the following reasons:

              1. The testimony of the arresting officer is so uncertain
                 that it is unworthy of belief, and the trial court
                 abused its discretion in accepting it as credible.

              2. The probata at trial failed to conform to the allegata
                 set forth in the criminal complaint, in that the
                 complaint alleges a violation on January 20, 2013,
                 where the evidence at trial establishes that the
                 violation occurred on January 19, 2013, and further
                 that the identity of the alleged violator was a person
                 named “Morales.”

              3. The arresting officer testified that his recollection was
                 “unclear” of the events of the arrest a year prior.

              4. The Commonwealth failed to establish an unbroken
                 chain of custody of [Appellant’s] blood sample.

          C. Whether the trial court erred in encouraging the
             Commonwealth to amend the criminal information to
             include a count for violation of § 3802(a)(2)?

Appellant’s Brief at 2-3.




____________________________________________


2
    We have reordered Appellant’s issues for ease of discussion.



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      In the first issue for our consideration, Appellant contends that police

lacked probable cause to arrest Appellant. Appellant’s Brief at 26-30. First,

he asserts:

        Here, there was insufficient evidence to show that
        [Appellant] appeared impaired to the extent that he was
        incapable of driving. […H]e was stopped because he made
        a turn where turning that way was prohibited. This was a
        driving infraction and was not, in and of itself, evidence that
        his driving was impaired. The police officer pulled him over
        for this reason alone. There was no accident; he was not
        speeding or driving excessively slowly; his car was not
        drifting into the other l[a]ne, or weaving, or erratic.

        Therefore, at the time of the stop, there was no evidence
        o[r] suspicion of any possible further criminality.   Any
        suspicion of DUI had to come from what happened after
        [the police officer] first approached the car.

Id. at 26. Appellant also maintains that the police officer lacked probable

cause to arrest him after the motor vehicle stop because the officer only

smelled a “slight” odor of alcohol and Appellant agreed to take SFSTs and his

“failures” regarding those tests “were consistent with a sober person not

understanding the officer’s directions.” Id. at 27-29.

      Appellant presented these arguments in his pre-trial omnibus motion,

seeking suppression. In reviewing the denial of a motion to suppress, “[o]ur

standard of review in addressing a challenge to a trial court's denial of a

suppression motion is limited to determining whether the factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct.”   Commonwealth v. Garibay, 106 A.3d 136, 143 (Pa.

Super. 2014) (citation omitted). Further, “when reviewing the denial of a


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motion to suppress, we look at all of the evidence in the light most favorable

to the Commonwealth and determine whether the record supports the

suppression court's findings of fact.”    Id.

      “A police officer has the authority to stop a vehicle when he or she has

reasonable suspicion that a violation of the vehicle code has taken place, for

the purpose of obtaining necessary information to enforce the provisions of

the code.” 75 Pa.C.S. § 6308(b). “However, if the violation is such that it

requires no additional investigation, the officer must have probable cause to

initiate the stop.”   Commonwealth v. Brown, 64 A.3d 1101, 1105, (Pa.

Super. 2013) (citation omitted).         “Put another way, if the officer has a

legitimate expectation of investigatory results, the existence of reasonable

suspicion will allow the stop—if the officer has no such expectations of

learning additional relevant information concerning the suspected criminal

activity, the stop cannot be constitutionally permitted on the basis of mere

suspicion.”   Id. (citation omitted).      Here, Officer Mark Oxenford testified

that he witnessed Appellant make a left hand turn at an intersection where

two posted signs indicated that a left turn was prohibited. N.T., 6/28/2013,

at 5-6. Because Officer Oxenford witnessed a motor vehicle code infraction,

he had the requisite probable cause to initiate the traffic stop.

      Moreover, this Court has previously determined:

        Probable cause to arrest exists when the facts and
        circumstances within the police officer's knowledge and of
        which the officer has reasonably trustworthy information are
        sufficient in themselves to warrant a person of reasonable
        caution in the belief that an offense has been committed by

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        the person to be arrested. Probable cause justifying a
        warrantless arrest is determined by the totality of the
        circumstances.

        Probable cause does not involve certainties, but rather the
        factual and practical considerations of everyday life on
        which reasonable and prudent men act. It is only the
        probability and not a prima facie showing of criminal activity
        that is a standard of probable cause. To this point on the
        quanta of evidence necessary to establish probable cause,
        the United States Supreme Court recently noted that finely
        tuned standards such as proof beyond a reasonable doubt
        or by a preponderance of the evidence, useful in formal
        trials, have no place in the probable cause decision.

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)

(internal citations, quotations, and brackets omitted).

      To initiate the traffic stop in this case, Officer Oxenford activated the

siren and emergency lights of his marked police car.         Id. at 6.      “When

[Appellant] pulled over, the passenger side front tire actually went up onto

the curb and the vehicle came back down onto the roadway.”            Id.   When

Officer Oxenford approached the vehicle, Appellant was the only occupant.

Id. at 7. Officer Oxenford detected the odor of alcohol on Appellant’s breath

and saw that Appellant’s eyes were blood shot.            Id. at 8.    Appellant

admitted that he was coming from a bar where he had consumed four to five

beers. Id. When asked to exit the vehicle, Appellant got “wrapped up in the

seat belt[.]” Id. at 11. Officer Oxenford testified that Appellant failed the

SFST by staggering, swaying, and failing to follow directions. Id. at 10-14.

Appellant acquiesced to a portable breath test that indicated the presence of

alcohol in his bloodstream.     Id. at 14.   Accordingly, “[b]ased upon his



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driving up on the curb, seeing him come out of the vehicle and detecting an

odor of alcohol, the field tests, the combination of all that, [Officer Oxenford]

felt [Appellant] was incapable of safely driving and placed him into custody

for DUI.” Id. at 16.

         When the facts are viewed in totality, in the light most favorable to the

Commonwealth as our standard requires, the trial court’s factual findings are

supported by the record and we discern no error of law in denying

Appellant’s request for suppression.             Here, Officer Oxenford had probable

cause to stop Appellant for a motor vehicle code violation.                       Thereafter,

Officer       Oxenford   obtained        reasonably     trustworthy     information,      from

firsthand observation, to warrant a belief that DUI had been committed and

that probable cause supported Appellant’s arrest.                    Accordingly, this issue

fails.

         In    his   second     issue     presented,     Appellant     contends    that    the

Commonwealth           failed   to      prove   his    conviction    under   75    Pa.C.S.A.

§ 3802(a)(2) with sufficient evidence. Id. at 15-26. Appellant argues that

the trial court should not have relied upon the testifying officer’s recollection

of events, specifically facts not contained in either the police incident report

or the affidavit of probable cause, because that officer “repeatedly testified

he had difficulty recalling the events of the arrest on January 19, 2013.” Id.

at 15.        Appellant maintains that he produced evidence contradicting the

officer’s recollection of events.          Id. at 18.      Appellant also avers he “was

prejudiced because the affidavit [of probable cause] not only contains the

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wrong date of the crime, but contains allegations against another person

[named]    Morales.”          Id.   at   17.       Moreover,   Appellant   claims    the

Commonwealth failed to establish evidence of an unbroken chain of custody

regarding Appellant’s blood sample. Id. at 19. More specifically, he argues:

“Inexplicably, the chain of custody card [] shows that the lock box

[containing     Appellant’s    blood     sample]    was   received   by    St.   Joseph[

Hospital’s] employee Osiris Martinez Urquilla (“Urquilla”), the third shift

technician at the hospital, at 4:50 AM, ten minutes prior to its delivery,

according to Officer [Peter] Scornavacchi.”           Id. at 20.     He suggests that

“[w]ith no other evidence explaining the discrepancy other than to guess

that it was ‘highly unlikely’ that blood samples were mixed up, and no

explanation why the discrepancy occurred, the trial court clearly abused its

discretion in allowing the defective chain of custody into evidence and

relying on the [blood alcohol test] to find [Appellant] guilty of §3802(a)(2).”

Id. at 24-25.

      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 that 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 so weak and inconclusive
        that as a matter of law no probability of fact may be drawn
        from the combined circumstances. The Commonwealth may


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        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 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011)

(citations omitted).

      Appellant challenges his conviction under 75 Pa.C.S.A. § 3802(a)(2),

which provides:

        (2) 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
        0.08% but less than 0.10% 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.A. § 3802(a)(2).

      Here, there is no dispute that Appellant was driving and was the only

occupant of the vehicle.      Moreover, we will not disturb the trial court’s

credibility determinations or reweigh the evidence. Thus, the trial court did

not err in crediting Officer Oxenford’s version of events over Appellant’s, as

previously outlined above.    Additionally, Officer Oxenford testified that the

name Morales, that appeared on the affidavit of probable cause, “was

probably for another defendant[, but] [s]hould have been for [Appellant].”

N.T., 6/28/2013, at 24.      Officer Oxenford attributed the discrepancy to a

typographical error. Id. at 52. Officer Oxenford testified that the remaining



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information in the affidavit was based solely upon his observations of

Appellant.    Id. at 24-26, 51-52.        Regarding the chain of custody claim,

laboratory technician, Michelle Reed testified that the chain of custody card

indicated that Appellant’s blood sample was delivered ten minutes after it

was received. N.T., 2/26/2014, at 52-54. She testified that it was “highly

unlikely” that the sample was someone else’s blood and attributed the time

discrepancy to “a difference in clocks from the DUI center to the hospital.”

Id. at 54.     The trial court was permitted to accept this explanation and to

conclude     that   the   chain   of   custody   had   not   been   broken.   See

Commonwealth v. Feliciano, 67 A.3d 19, 29 (Pa. Super. 2013) (en banc)

(Gaps in the chain of custody go to the weight of the evidence and not its

admissibility). The blood test result showed Appellant’s BAC was .103. Id.

at 50. However, the trial court credited the defense expert’s testimony that

there is a 5-10% variance for the findings, which brought Appellant’s BAC to

below .10.     N.T., 5/16/2014, at 60-61.        Based upon all of the foregoing,

there was sufficient evidence to support Appellant’s conviction for DUI under

75 Pa.C.S.A. § 3802(a)(2). Appellant’s second claim fails.

     In his third issue presented, Appellant claims that he was prejudiced

when the trial court suggested that the Commonwealth move to amend the

bill of criminal information to include a count for DUI under 75 Pa.C.S.A.

§ 3802(a)(2). Appellant’s Brief at 30. He argues “the Commonwealth did

not of its own accord seek to amend the information to conform to the

evidence introduced at trial until after closing argument, when the [c]ourt

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was issuing its ruling, and after the [c]ourt suggested that it was not going

to find [Appellant] guilty of a section 3802(b) violation.” Id. at 34.

      On this issue, this Court has declared:

        According to Pa.R.Crim.P. 564, the court may permit
        amendment of an information when there is a defect in
        form, the description of the offense(s), the description of
        any person or any property, or the date charged, provided
        the information as amended does not charge an additional
        or different offense. Moreover, upon amendment, the court
        may grant such post-ponement of trial or other relief as is
        necessary in the interests of justice. The purpose of Rule
        564 is to ensure that a defendant is fully apprised of the
        charges, and to avoid prejudice by prohibiting the last
        minute addition of alleged criminal acts of which the
        defendant is uninformed. Our courts apply the rule with an
        eye toward its underlying purposes and with a commitment
        to do justice rather than be bound by a literal or narrow
        reading of the procedural rules.

        […W]hen presented with a question             concerning    the
        propriety of an amendment, we consider:

            whether the crimes specified in the original
            indictment or information involve the same basic
            elements and evolved out of the same factual
            situation as the crimes specified in the amended
            indictment or information. If so, then the defendant
            is deemed to have been placed on notice regarding
            his alleged criminal conduct. If, however, the
            amended provision alleges a different set of events,
            or the elements or defenses to the amended crime
            are materially different from the elements or
            defenses to the crime originally charged, such that
            the defendant would be prejudiced by the change,
            then the amended is not permitted.

        Additionally,

            in reviewing a grant to amend an information, th[is]
            Court will look to whether the appellant was fully

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            apprised of the factual scenario which supports the
            charges against him. Where the crimes specified in
            the original information involved the same basic
            elements and arose out of the same factual situation
            as the crime added by the amendment, the appellant
            is deemed to have been placed on notice regarding
            his alleged criminal conduct and no prejudice to
            defendant results.

        Further, the factors which the trial court must consider in
        determining whether an amendment is prejudicial are:

            (1) whether the amendment changes the factual
            scenario supporting the charges; (2) whether the
            amendment adds new facts previously unknown to
            the defendant; (3) whether the entire factual
            scenario was developed during a preliminary
            hearing; (4) whether the description of the charges
            changed with the amendment; (5) whether a change
            in defense strategy was necessitated by the
            amendment; and (6) whether the timing of the
            Commonwealth's request for amendment allowed for
            ample notice and preparation.

        Most importantly, we emphasize that the mere possibility
        amendment of information may result in a more severe
        penalty is not, of itself, prejudice. Moreover, this Court has
        reaffirmed this principle in the context of DUI offenses. See
        Commonwealth v. Roser, 914 A.2d 447, 454–455 (Pa.
        Super. 2006).

Commonwealth v. Mentzer, 18 A.3d 1200, 1202-1203 (Pa. Super. 2011)

(quotations, original brackets, and most citations omitted). Finally, we note

that, “if there is no showing of prejudice, amendment of an information to

add   an   additional   charge   is   proper   even   on   the   day   of   trial.”

Commonwealth v. Picchianti, 600 A.2d 597, 599 (Pa. Super. 1991).




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       Initially, we note that Appellant has waived this claim.3     Regardless,

this claim is without merit as there was no prejudice to Appellant in allowing

the amendment.          Appellant was fully apprised of the factual scenario

supporting the charges against him. The crimes specified in the original bill

of criminal information involved the same basic elements and evolved out of

the same factual situation as the crime specified by the amendment.          In

fact, the charge that was amended was a lesser-included offense of the

crime originally charged by information.4          The amendment did not change

the factual scenario supporting the charge or add new facts previously

unknown to Appellant. The description of the charges did not change with

the amendment. There was no necessity to change the defense strategy or

reason for ample notice and additional preparation. Accordingly, we discern

no prejudice to Appellant and, as such, the trial court did not err in

permitting amendment.
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3
   Appellant did not object to the amendment at trial and, in fact, stipulated
to amending the original bill of criminal information instead of requiring the
Commonwealth to file a proposed order to amend. See N.T., 5/16/2014, at
58-60. Thus, Appellant waived this issue. See Commonwealth v. May,
887 A.2d 750, 761 (Pa. 2005) (“The absence of [a] contemporaneous
objection[] renders [a] claim[] waived.”), citing Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”).
4
    Appellant was originally charged with general impairment – high rate of
alcohol under 75 Pa.C.S.A. § 3802(b) which requires a showing that the
defendant’s BAC was between 0.10% and 0.16%. However, the evidence at
trial established that Appellant’s BAC was below 0.10% which supports a
conviction for general impairment under 75 Pa.C.S.A. § 3802(a)(2).



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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