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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

               v.


 ANDREW R. CARSON

                    Appellant              :    No. 2015 MDA 2018
        Appeal from the Judgment of Sentence Entered August 1, 2018
    In the Court of Common Pleas of Lebanon County Criminal Division at
                       No(s): CP-38-CR-0001046-2017

BEFORE:    LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.:                 FILED: JULY 24, 2019
      Appellant Andrew R. Carson appeals from the judgment of sentence
entered in the Court of Common Pleas of Lebanon County on August 1, 2018,

following his non -jury convictions of two counts of driving under the influence

of alcohol.' We affirm.
      The trial court detailed the relevant facts and procedural history as
follows:

           Before this [c]ourt is [Appellant's] Consolidated, Post -
      Sentence Motion. [Appellant] asserts that his Motion in Arrest of
      Judgment should be granted because the Commonwealth failed to
      present sufficient evidence at trial to prove beyond a reasonable
      doubt that [Appellant] was guilty of one count of Driving Under
      the Influence of Alcohol (75 Pa.C.S. § 3802 §§ B) and one count
      of Driving Under the Influence of Alcohol (75 Pa.C.S. § 3802 §§
      Al). In the alternative, [Appellant] asserts that his Motion for
      Judgment of Acquittal should be granted because the verdict was
      against the weight of the evidence as the Commonwealth failed to


" 75 Pa.C.S.A. § 3802.

   Former Justice specially assigned to the Superior Court.
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     present evidence to establish chain of custody beyond a
     reasonable doubt. Finally, in the alternative, [Appellant] requests
     this Court grant his Motion for Judgment of Acquittal for Violation
     of the Double Jeopardy Clause of the Pennsylvania and United
     States Constitutions.

     I.     FACTUAL HISTORY
           Lebanon County Police Officer Stephanos Goumas testified
     that on March 9, 2017 at approximately 5:00 p.m., dispatch
     advised him "that there was -somebody called about an
     intoxicated person at the good Samaritan Hospital at the ER
     entrance." (Notes of the Trial Testimony Transcript held January
     30, 2018, hereinafter "N.T. 1/20/18," Pages 5-6). Dispatch added
     that there was somebody who was in his car and talking to Good
     Samaritan Hospital security. (N.T. 1/30/18, Page 6); (Notes of the
     Trial Testimony Transcript held May 31, 2018, hereinafter "N.T.
     5/31/18," Page 12). Officer Goumas was not on a call and
     "immediately responded" to that location "probably within a few
     minutes." (N.T. 5/31/18, Page 12). Upon arrival Officer Goumas
     made contact with an individual who was outside, but standing
     next to, the driver's side of a vehicle with the license plate
     JCX998811 and who was speaking with security staff. (NJ.
     1/20/18, Pages 6-7). Officer Goumas did not see [Appellant]
     inside of a vehicle when he arrived. (N.T. 5/31/18, Page 12, 16).
     The vehicle was stopped in the middle of the "little roadway that
     leads to the ER entrance." (N.T. 1/20/18, Page 6, 17). Officer
     Goumas testified that [Appellant] did not attempt to drive while
     Officer Goumas was present, but the vehicle was running. (N.T.
     5/31/18, Page 16).
           Officer Goumas testified that his initial observation was that
     [Appellant] was intoxicated, based off his training and experience,
     and he did not feel comfortable allowing [Appellant] to leave in
     such condition. (N.T. 1/20/18, Pages 8-9). [Appellant] denied
     driving the vehicle. (N.T. 1/20/18, Page 10). Officer Goumas
     testified that based upon his training and education, [Appellant]
     had an impaired ability to drive. He stated: "[j]ust the way he was
     swaying his body. It was also the results of the (field sobriety)
     tests. And then his admission of consuming alcohol." (N.T.
     1/20/18, Page 13); (N.T. 5/31/18, Page 11).
            After being placed under arrest Officer Goumas took
     [Appellant] to the hospital for a blood draw. (N.T. 1/20/18, Page
     13). This was within two hours of Officer Goumas being dispatched
     to the scene. (N.T. 1/20/18, Page 13). Finally, Officer Goumas
     testified that he witnessed phlebotomist, Natale Camille draw two

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     vials of [Appellant's] blood. (N.T. 1/20/18, Page 14); (N.T.
     5/31/18, Page 17). The Commonwealth then asked the witness,
     "That blood was then submitted to the lab for results?" (N.T.
     1/20/18, Page 14). Defense Counsel objected stating, "Leading,
     and may very well be outside the officer's personal knowledge as
     to what happened to the vials." (N.T. 1/20/18, Page 14).
           After a discussion between Counsel and the [c]ourt
     regarding Defense Counsel's objection the Commonwealth
     attempted to have Sergeant Mike DiPalo called to testify. (N.T
     1/20/18, Page 18). The [c]ourt noted that Sergeant DiPalo was
     not a representative of the hospital. (N.T. 1/20/18, Page 19). The
     jurist presiding over the trial stated, "So I'm just looking for
     somebody from the hospital, not somebody outside of the hospital
     who works for the District Attorney's office, to testify this is what
     their procedure is. Okay?" (N.T. 1/20/18, Page 20). Defense
     Counsel objected to continuing the matter because she never
     stipulated to chain of custody. Defense Counsel opined that the
     Commonwealth's non -preparedness at trial should not allow it the
     ability to defer the trial to another day. (N.T. 1/20/18, Pages 20-
     1). The Court noted Defense Counsel's objection for the record.
     (N.T.     1/20/18, Page 21). The [c]ourt      also   noted that the
     Commonwealth had not yet rested. (N.T. 1/20/18, Page 21). The
     [c]ourt then granted the Commonwealth's Motion for a
     Continuance over Defense Counsel's objection. (N.T. 1/20/18,
     Page 21).
          The      trial then resumed on May 31, 2018. The
     Commonwealth recalled Officer Goumas. (N.T. 5/31/18, Page 6).
     The Commonwealth admitted Exhibit 3, a certification of request
     for collection of blood for legal alcohol testing. (N.T. 5/31/18, Page
     30). Officer Goumas identified his signature on the form showing
     that he witnessed the phlebotomist prepping, drawing, and
     sealing the tubes with tamperproof evidence seals after requesting
     the blood draw at 5:52 p.m. (N.T. 5/31/18, Page 10). Officer
     Goumas testified on cross that he believed the blood had been
     drawn at 6:23 p.m. (N.T. 5/31/18, Page 12). Finally, Officer
     Goumas testified that the two vials were sealed -off with evidence
     or tamperproof tape and placed in a Styrofoam box, which is also
     sealed with evidence tape. (N.T. 5/31/18, Page 11).
           The Commonwealth then called Robert Sweeney, who
     worked with Lebanon County Crisis Intervention on the day in
     question. (N.T. 5/31/18, Page 18). Mr. Sweeney testified that on
     March 9, 2017 he heard a woman yelling: "Stop him. He is trying
     to get away." (N.T. 5/31/18, Page 18). The witness was directed
     outside to a car in front of the hospital where he encountered the

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     [Appellant] in the driver's seat. (N.T. 5/31/18, Page 19). "He was
     moving a very slow short distance. She said: He's trying to get
     away. Stop him. So security and I went out to help stop the car."
     (N.T. 5/31/18, Page 19). Mr. Sweeney testified that because
     [Appellant] was driving e[v]ery very slowly" the witness stood in
     front of the vehicle to look at [Appellant] through the windshield
     while the security guards came around to the driver's side door to
     speak with [Appellant]. (N.T. 5/31/18, Pages 19-20). Mr.
     Sweeney testified that Officer Goumas arrived at the scene
     stating, "Yes. Very quickly, actually. ... I would say 10/15
     minutes." (N.T. 5/31/18, Page 20).
            Next, the Commonwealth called Camille Natale, a
     phlebotomist at the WellSpan Good Samaritan Hospital. (N.T.
     5/31/18, Page 23). The Commonwealth proceeded to question Ms.
     Natale regarding typical procedures for taking blood and testing
     for the presence of alcohol. (N.T. 5/31/18, Pages 24-28). Ms.
     Natale testified that all procedures were followed in the handling
     of [Appellant's] blood sample and that she did prep, draw, and
     place into storage [Appellant's] blood samples. (N.T. 5/31/18,
     Page 26-8). On Cross, Ms. Natale stated that she never saw who
     picked up the blood from secured storage after she had placed it
     in secured storage. (N.T. 5/31/18, Page 31).
           Kimberly Souder was the Commonwealth's fourth witness.
     Ms. Souder is a forensic scientist II with the Pennsylvania State
     Police Crime Lab in Harrisburg and has worked there for
     approximately twenty-six (26) years. (N.T. 5/31/18, Page 32).
     Ms. Souder then provided testimony regarding the lab's chain of
     custody procedure for dealing with received evidence. (N.T.
     5/31/18, Pages 33-4). Exhibit 7, a copy of the chain of custody
     report from the laboratory system as it related to [Appellant's]
     blood, was admitted. (N.T. 5/31/18, Pages 34-5). The parties
     stipulated that Exhibit 8, the lab report, would show that Ms.
     Souder tested [Appellant's] blood alcohol kit and concluded using
     headspace gas chromatography that [Appellant's] blood was
     0.157, over/under 0.007 grams' percent of ethyl alcohol in whole
     blood. (N.T. 5/31/18, Pages 35-6). [Appellant's] blood test results
     meant that if the Commonwealth could prove beyond a reasonable
     doubt [Appellant] drove, operated, or was in actual physical
     control of the movement of a vehicle within two hours after
     imbibing alcohol that produced such blood test results he was
     guilty of Driving under influence of alcohol in the "High rate of
     alcohol" category.2 Ms. Souder testified that the blood was
     received in a Styrofoam box that was sealed with a red seal, and
     that there were two gray stopper tubes of blood inside the

                                    -4-
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     cardboard box. (N.T. 5/31/18, Page 37). Further, Ms. Souder
     testified that the alcohol blood kits were sealed with red evidence
     seals and there was no indication of tampering. (N.T. 5/31/18,
     Page 37). Finally, Ms. Souder testified that she would not have
     analyzed and/or tested the item if it was opened or there were
     signs of tampering. (N.T. 5/31/18, Pages 37-8). On Cross, Ms.
     Souder testified that she did not see the blood arrive at the lab,
     nor did she receive it at the lab, and finally that she did not see
     who delivered the blood to the lab. (N.T. 5/31/18, Page 38).
           At the conclusion of Ms. Souder's testimony, the
     Commonwealth rested. (N.T. 5/31/18, Page 39). The Defense
     then made an oral Motion for Judgment of Acquittal, arguing the
     Commonwealth has not established a chain of custody and the
     Commonwealth has not established that the blood was drawn
     within two hours of [Appellant] operating a motor vehicle. (N.T.
     5/31/18, Pages 39, 44).
           There was no testimony regarding chain of custody from the
     time the blood samples were signed out of secured storage at the
     WellSpan Good Samaritan Hospital on March 16, 2017 at 10:25
     a.m. until the blood samples were received by the Pennsylvania
     State Police Crime lab on March 16, 2017 at 11:35 a.m. (N.T.
     5/31/18, Pages 28, 35, 39, and 40). Defense Counsel stated, "we
     don't know - we have no testimony who actually took it, and how
     it got there what condition and temperature, et cetera." (N.T.
     5/31/18, Page 40). The [c]ourt then clarified the issue for the
     record:
          Let's be clear for the record: The problem we have here
          is Millie Gonzalez for some reason was left go from the
          District Attorney's office. I also want to be very clear for
          the record that my understanding of why she would have
          been involved -I did not know this -I don't remember if
          it was this case or another case -I did not know why she
          would have been involved. I didn't know how it got from
          the Good Sam to the State Police lab, okay - but my
          understanding is that she was the woman tasked with
         taking it from the hospital to the State Police lab.
     (N.T. 5/31/18, Pages 41-2).
          So I have a person who's no longer with the DA's office
          that has no prior record that has charges against her
          who picked up the box at 10:25 and dropped it off at
          11:35 a.m. on March 16th. Because she's not here she
          can't verify that that is her signature; she was in fact the
          one who went there. okay. For what it's worth, I will take


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         that into consideration when I am rendering my decision
          in this case.
     (N.T. 5/31/18, Page 43).
           The [c]ourt determined enough evidence had been
     submitted by the Commonwealth to allow the case to go to the
     finder of fact, this [c]ourt. (N.T. 5/31/18, Page 46). Thus, the
     [c]ourt denied both Motions for Judgment of Acquittal. (N.T.
     5/31/18, Page 47).

     II. PROCEDURAL HISTORY
           [Appellant] was charged with the following:
     Count I: Driving Under the Influence of Alcohol (75 Pa.C.S. § 3802
     §§ B) (M)
     and
     Count II: Driving Under the Influence of Alcohol (75 Pa.C.S. §
     3802 §§ Al) (M).

           [Appellant] was convicted on both counts after a bench trial
     that began on January 30, 2018, was [c]ontinued upon Motion of
     the Commonwealth, and concluded on a second day which
     occurred on May 31, 2018, before the Honorable Charles T. Jones,
     Jr. [Appellant] was sentenced for the above offenses on August 1,
     2018. [Appellant] was sentenced to pay the costs of prosecution,
     pay a fine of $500.00, and be placed on Intermediate Punishment
     for a period of six (6) months; the first two (2) weeks to be served
     on house arrest with electronic monitoring at [Appellant's]
     expense, and the remainder to be served on Probation under the
     supervision of Lebanon County Probation Services Department.
     Four special conditions attached to [Appellant's] sentence: (1)
     compliance with the mandates of Act 24 of 2003; (2) completion
     of a drug and alcohol evaluation and successful completion of any
     recommendations; (3) attendance and completion of the Alcohol
     Safe Driving Program of Lebanon County; and (4) no operation of
     a motor vehicle until [Appellant's]     license is returned by
     PENNDOT. During sentencing the [c]ourt noted that Count II
     merged with Count I.
           [Appellant] timely filed his Consolidated, Post -Sentence
     Motion on August 2, 2018. A Post -Sentence Scheduling Order was
     thereafter issued on August 24, 2018, and the Commonwealth and
     [Appellant] both timely filed their Briefs. The matter is now ripe
     for disposition.




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       1 On Cross, Counsel for [Appellant] asked Officer Goumas if the
      license plate was JTX9988. Officer Goumas responded, "That
      sounds actually correct. I believe it was [Appellant's] vehicle So it
      would be registered to Mr. Carson." (N.T. 5/31/18, Page 13).

      2 75 Pa.C.S.A. § 3892(b).

Trial Court Opinion, 11/30/18, at 1-9 (unnecessary boldface type omitted).
      On November 30, 2018, the trial court denied Appellant's post sentence

motions. On December 5, 2018, Appellant filed both a notice of appeal and a

concise statement of matters complained of on appeal wherein he presented

two issues. On December 11, 2018, the trial court filed an Order wherein it

stated, inter alia, the following:

              2. the [c]ourt takes notice that Appellant filed a Concise
      Statement of Errors Complained of on Appeal on December 5,
      2018, concurrently with his Notice of Appeal. The instant Order is
      meant to allow Appellant the opportunity to file a supplemental
      Concise Statement of Errors, if he so desires, no later than twenty-
      one (21) days from the date of entry of this Order upon the
      docket.

Trial Court Order, filed 12/11/18, at 411 2.

      On December 31, 2018, Appellant filed an amended concise statement

of matters complained of on appeal. Therein, he raised the following three

issues he presents for this Court's review in the Statement of Questions
Involved portion of his appellate brief:

      A. Did the trial court err as a matter of law in finding that the
         Commonwealth did not violate the Double Jeopardy clause of
         the United States and Pennsylvania Constitutions when
         Appellant was subjected to Trial for the same offense on two
         separate dates?




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      B. Did the trial court err[] as a matter of law in its finding that the
         Commonwealth proved Count 1 DUI, high rate of alcohol
         (.10<.16) beyond a reasonable doubt?

      C. Did the trial court [sic] in failing to dismiss the charges against
         Appellant when the Commonwealth was not prepared to
         proceed to Trial on the date Trial was called when the first
         Witness was sworn and testimony presented?

Brief for Appellant at 4.

      Appellant initially argues that jeopardy attached on January 30, 2018,

at which time the Commonwealth began questioning Officer Gumas and it

became apparent the Commonwealth had no witnesses to establish the chain

of custody of the blood sample. Appellant reasons that although he had not

been subjected to a final judgment on the merits when the trial court
continued the trial until May of 2018, he was subjected twice to trial for the

same charges, because the trial court's action gave the Commonwealth "a

second bite at the apple." Appellant concludes the trial court erred when it

did not dismiss the charges in light of the Commonwealth's failure to proceed

in January of 2018. Brief for Appellant at 8, 10.

      This Court recently reiterated our well -settled standard of review of

challenges on double jeopardy grounds:

           An appeal based on double jeopardy grounds presents a
      question of constitutional law. Commonwealth v. Vargas, 947
      A.2d 777, 780 (Pa. Super. 2008) (citations omitted). As with all
      questions of pure law, our standard of review is de novo and our
      scope of review is plenary. Id. We must also consider the
      following:



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           The Double Jeopardy Clauses of the Fifth Amendment to
           the United States Constitution and Article 1, § 10 of the
           Pennsylvania Constitution protect a defendant from
           repeated criminal prosecutions for the same offense.
           Ordinarily, the law permits retrial when the defendant
           successfully moves for mistrial.   .   .   .


      Commonwealth v. Adams, 177 A.3d 359, 371 (Pa.Super.
      2017).

Commonwealth v. Byrd, 2019 WL 1892159 at *1-2 (Pa.Super. filed Apr. 29,

2019) (citation omitted).    "Furthermore, the Double Jeopardy Clause          [ ]

protects against a second prosecution for the same offense after acquittal. It

protects against a second prosecution for the same offense after conviction.

And   it protects against multiple punishments for the same offense."

Commonwealth v. Farrow, 168 A.3d 207, 214-15 (Pa.Super. 2017)
(citation omitted).

      At the outset, we note that the basis of Appellant's objection to
continuing the instant matter on January 30, 2018, was the Commonwealth's

alleged failure to be prepared to proceed with regard to chain of custody

evidence; at no time did Appellant object to continuing the matter on double

jeopardy grounds. It is axiomatic that:

            In order to preserve a claim for appellate review, a party
      must make a timely and specific objection at the appropriate stage
      of the proceedings before the trial court, or the claim is waived.
      On appeal, the Superior Court will not consider a claim which was
      not called to the trial court's attention at a time when any error
      committed could have been corrected. The principal rationale
      underlying the waiver rule is that when an error is pointed out to
      the trial court, the court then has an opportunity to correct the
      error. By specifically objecting to any obvious error, the trial court
      can quickly and easily correct the problem and prevent the need
      for a new trial. Additionally, the appellate court should not be

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      required to waste judicial resources correcting a problem that the
      trial court could have easily corrected if it had been given the
      opportunity to avoid the necessity of granting a new trial.

Commonwealth v. Russell, 2019 WL 1967823 at *6 (Pa.Super. filed May

3, 2019) (citations omitted).

      Appellant did not object before the trial court on the basis of any double

jeopardy concerns either at the conclusion of the first day of trial on January

30, 2018, or at the outset of the second day of trial which commenced on May

31, 2018. Instead, he presented this claim in his Post -Sentence Motions filed

on August 2, 2018.       See Defendant's Post -Sentence Motions Pursuant to

Pa.R.Crim.P. 720, at 4-7 (unnumbered).

      In Commonwealth v. Splain, 364 A.2d 384 (Pa.Super. 1976), this
Court held that a defendant normally must assert a double jeopardy claim in

a timely manner, and he may not wait until after the Commonwealth has
presented its evidence before doing so. Id. at 387; see also Commonwealth

v. Block, 469 A.2d 650, 652 n. 4 (Pa.Super. 1983) ("While it is true that the

lack of a specific objection will not constitute a waiver of a particular basis for

relief under double jeopardy, ... it has also been held that a defendant cannot

sit back and put the Commonwealth to the expense and time of presenting its

evidence then later object to the proceeding on double jeopardy grounds.")

(citations omitted; emphasis in original). In light of the foregoing, Appellant's

double jeopardy challenge       is   patently untimely and, as such, we find
Appellant's claim waived for failure to raise it in a timely manner.           See


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Commonwealth v. Sauers, 159 A.3d 1, 9 (Pa.Super. 2017) (stating that the

failure to offer a timely and specific objection results in waiver of the claim),

appeal denied, 642 Pa. 605, 170 A.3d 1057 (2017).

      Notwithstanding, Appellant's assertion that his criminal trial was held in

violation of principles of double jeopardy      is   without substantive merit.
Appellant was not subjected to a repeated criminal prosecution for the same

offenses following a conviction, for the trial court stated on January 30, 2018,

that the Commonwealth "has not rested," and it made no final judgment as

to Appellant's guilt or innocence. Indeed, the trial court specifically reserved

judgment until May 31, 2018, and did not resolve any element of any of the

charged offenses until that time.

      To the contrary, in response to Appellant's objection as leading and,

perhaps, outside of his personal knowledge, to the questioning of Officer

Goumas as to whether the vials of blood were submitted to the lab for results,

the trial court stated, "Do we have everybody here that we can go through

every step of the way? I would like that. If that is the objection, we're going

to hear every single thing."   N.T. Trial 1/30/18, at 14. Simply put, Appellant

had one trial which took place on two days, and the continuance was
necessitated by the Appellant's objection. Thus, the trial court properly found

that double jeopardy does not apply to the instant matter. Trial Court Opinion,

filed 11/30/18, at 20-21.
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      Next, Appellant argues the trial court erred in finding him guilty of DUI,

high rate of alcohol beyond a reasonable doubt.         This claim presents a

challenge to the sufficiency of the evidence. When examining a challenge to

the sufficiency of the evidence, our standard of review is as follows:

      The determination of whether sufficient evidence exists to support
      the verdict is a question of law; accordingly, our standard of
      review is de novo and our scope of review is plenary. In assessing
      [a] sufficiency challenge, we must determine whether viewing all
      the evidence admitted at trial in the light most favorable to the
      [Commonwealth], there is sufficient evidence to enable the
      factfinder to find every element of the crime beyond a reasonable
      doubt. [T]he facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.
      ...   [T]he 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. Edwards, 177 A.3d 963, 969-970 (Pa.Super. 2018)
(quotation marks and citations omitted). Moreover, "[t]he Commonwealth

may sustain its burden of proving every element of the crime beyond a
reasonable     doubt   by   means     of   wholly   circumstantial   evidence."

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011) (citation
omitted), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011).

      Appellant herein was convicted of DUI under Sections 3802(a)(1) and

(b) 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.


                                     - 12 -
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       ***

       (b) "VI 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 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.

75 Pa.C.S.A. §§ 3802(a)(1) and (b).

       First, we observe that Appellant challenges only his conviction pursuant

to Subsection (b). "[T]o sustain a conviction under Subsection 3802(b), the

Commonwealth must prove: (1) Appellant was driving, operating, or in actual

physical control of the movement of a vehicle, and (2) Appellant's BAC was is

[sic] at least 0.10% but less than 0.16% within two hours of driving,

operating, or being in control of the vehicle. See 75 Pa.C.S.A. § 3802(b)."

Commonwealth v. Haight, 50 A.3d 137, 141 (Pa.Super. 2012).

       With respect to challenges to the sufficiency of the evidence generally,

this Court repeatedly has required that "[i]n order to preserve a challenge to

the sufficiency of the evidence on appeal, an appellant's Rule 1925(b)
statement must state with specificity the element or elements upon which the

appellant alleges that the evidence was insufficient." Commonwealth v.
Freeman, 128 A.3d 1231, 1248 (Pa.Super. 2015) (internal citations omitted).

This   Court then may analyze the element or elements               on   appeal.

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015).




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      In   Tyack, the appellant's     Rule     1925(b) statement declared,      in

boilerplate fashion, that the evidence was insufficient to support his conviction

of possession of an electric or electronic incapacitation device by a prohibited

person because the Commonwealth had failed to prove he had been ineligible

to possess the device. This Court concluded that the appellant had waived his

sufficiency claim on appeal because the Rule 1925(b) statement had failed to

specify the element or elements upon which the evidence was insufficient to

support Appellant's conviction, thus, it had failed to identify sufficiently the

error that he intended to challenge on            appeal. See also      Pa.R.A.P.

1925(b)(4)(ii) & (vii) (providing, respectively, that "[t]he Statement shall
concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge[,]"
and that "[i]ssues not included in the Statement and/or not raised              in

accordance with the provisions of this paragraph [ ] are waived." (emphasis

added)).

      Herein, Appellant's Concise Statement of Matters Complained of on

Appeal Statement Pursuant to Pa.R.A.P. 1925(b) raised only a generic

challenge and did not specify precisely which elements of Count 1, 75
Pa.C.S.A. § 3802(b), he intended to argue the Commonwealth failed to prove

on appeal. Therefore, we find this claim waived for lack of sufficient specificity

in Appellant's concise statement.      Commonwealth v. Harris, 2019 WL
324634, at *2-3 (Pa.Super. Jan. 25, 2019).


                                      - 14 -
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      However, even if Appellant had not waived this challenge based upon

his deficient Rule 1925(b) statement, he still would not be entitled to relief.

As this Court has observed, when considering a sufficiency claim, we evaluate

the entire record and consider all evidence:

      .... When examining the evidence in the trial record in a light most
      favorable to the Commonwealth, we do not make new factual
      determinations based on the trial evidence introduced; rather, we
      accept the evidence of record, and all reasonable inferences drawn
      therefrom on which the factfinder could properly have based its
      verdict, as factually true.

In Interest of .7.B., 189 A.3d 415 (Pa. 2018) (citation omitted).

      When analyzing Appellant's challenge to the sufficiency of the evidence

as it pertained to Count 1, or 75 Pa.C.S.A. § 3802(b), the trial court reasoned

as follows:

      [Appellant] argues that only one witness (Mr. Sweeney) testified
      that [Appellant] operated a motor vehicle and that witness had no
      recollection of when he saw [Appellant] operating the vehicle.
      Because Officer Goumas testified that he arrived around 5:00 p.m.
      or shortly thereafter and the blood drawl [sic] occurred at 6:26
      p.m., [Appellant] argues there is a thirty-four (34) minute gap in
      time. [Appellant's] Brief in Support of His Post -Sentence Motions,
      unpaginated. [Appellant] argues that the Commonwealth has the
      burden of proving guilt beyond a reasonable doubt, and the
      Commonwealth failed to meet this burden because a reasonable
      doubt exists as to whether [Appellant's] blood was taken within
      two (2) hours of [Appellant] being in control of a motor vehicle.
      Id.
           The Commonwealth responds with the following: Mr.
      Sweeney testified that he witnessed [Appellant] driving. (N.T.
      5/31/18, Page 19). Further, Mr. Sweeney testified that Officer
      Goumas arrived on the scene "very quickly" after Sweeney
      witnessed this incident. (N.T. 5/31/18, Page 20). Finally, the
      Commonwealth mentions that [Appellant] did not drink any
      alcohol between the time of the incident and the time Officer
      Goumas arrived. (N.T. 5/31/18, Page 20-21). Commonwealth's

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     Brief in Opposition to Defendant's Post -Sentence Motions, Page
     10
           Upon review of the transcript the [c]ourt finds that it
     discussed this issue when ruling upon [Appellant's] Oral Motion
     for Judgment of Acquittal during the second day of trial on May
     31, 2018 as it related to the two-hour period prior to [Appellant's]
     blood being drawn at 6:26 p.m. by phlebotomist Camille Natale.
          But I'm kind of going on that when he was moving, how
          soon he showed up after that time period. We are talking
          about from the emergency room entrance driveway to
          somewhere else in the hospital. Okay? We do have a
          date and time of this specimen taken at 182600 (sic)
          hours. So if we're going from 1700 hours to 1826, that
          is an hour and 26 minutes. I have to decide what very
          short time period within 5 to 15 minutes or 10 to 15
          minutes, what time period. You said very quickly with
          dispatch time and arrival time. So I'm with you.
     (N.T. 5/31/18, Pages 45-6).
          So I have to decide whether it took him 34 minutes to
          get there after he was notified after the guy drove and
          that kind of thing. We can all agree it is within 34
          minutes.
     (N.T. 5/31/18, Page 47).
          He is clearly driving the car at that point. The moment
          they get him out of the car, Officer Goumas was there
          pretty quickly. They are at the hospital. You don't get
          much closer to go to have that blood alcohol taken and
          that being right at the hospital. So while I'm willing to
          believe it could have been shorter, it could have been
          longer than 10 or 15 minutes, It could have been shorter
          than 10 or 15 minutes, I don't think we're wrapping
          around to 34 minutes from there.
     (N.T. 5/31/18, Pages 51-2).
                                      ***
           The [c]ourt additionally found that Officer Goumas testified
     that when he arrived on scene, at or shortly after 5:00 p.m.,
     [Appellant] was standing outside of the vehicle next to the driver's
     side with the door open and the car running. (N.T. 5/31/18, Page
     16). Although [Appellant] did not attempt to leave the scene once
     Officer Goumas arrived the [c]ourt again finds he was at that time
     in actual, physical control of a motor vehicle at or shortly after
     5:00 p.m. Thus, no reasonable doubt existed to find [Appellant's]
     blood was not drawn within two hours of him driving, operating,

                                    - 16 -
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      or being in actual physical control of a motor vehicle as required
      by statute. The [c]ourt finds that viewing the facts in the light
      most favorable to the Commonwealth, supported at trial by the
      testimony and evidence presented, that [Appellant's] blood
      samples were drawn within two hours of him driving, operating,
      or being in actual physical control of the movement of the vehicle,
      and the Commonwealth submitted sufficient evidence to support
      the verdict. Thus, [Appellant's] Motion for Arrest of Judgment is
      respectfully denied.

Trial Court Opinion, filed 11/30/18, at 11-14 (unnecessary boldface type
omitted).

      Upon our review of the record, we find no error in the trial court's
thorough analysis and, thus, would affirm the trial court's disposition of
Appellant's second issue.

      In his third claim, Appellant maintains the trial court should have
dismissed the charges against him in light of the Commonwealth's lack of

preparedness to proceed on January 30, 2018, despite the fact that its first

witness had been sworn and testified. Appellant devotes less than two pages

of argument to this issue in his appellate brief wherein he admits that this

claim is closely related to that which he presented in support of his double

jeopardy challenge. In fact, he essentially reiterates in abbreviated fashion

the points he presented in support of thereof. Brief for Appellant at 19-20.

      Prior to reaching the merits of this issue, we again must address
whether Appellant has preserved it for our review. As stated previously, to

preserve a claim for appellate review, a party must make a timely and specific

objection at the appropriate state of the proceedings in an effort to allow the


                                    - 17 -
J -A16033-19


trial court to correct any error. See Russell, supra.       While Appellant did

object to   allowing   a   continuation   of   the   proceedings   so   that the

Commonwealth may obtain additional testimony pertaining to chain of
custody, at no point did Appellant make a motion to dismiss all charges due

to the Commonwealth's alleged lack of preparedness in January of 2018.

Because Appellant improperly is attempting to raise a new theory of relief for

the first time on appeal, we conclude Appellant has waived this final claim.

See Pa.R.A.P. 302(a); Phillips, supra.

       Notwithstanding, to the extent Appellant's objection on January 30,

2018, may be deemed sufficient to have preserved this issue for appellate

review, we would find this claim lacks merit. A review of the record reveals

the Commonwealth sought to present the testimony of Sergeant Mike Depalo

as to the technical procedure for handling blood draws. N.T., 1/30/18, at 17-

18. It was the trial court who explained that as per court procedure it wanted

to hear testimony from "somebody from the hospital" pertaining to the
procedure, at which time Appellant objected.         Id. at 19-20.      As stated

previously, the trial court specifically stressed on January 30, 2018, that the

Commonwealth "has not rested," made no final judgment as to Appellant's

guilt or innocence on either of the pending charges, and reserved judgment

until May 31, 2018, in light of Appellant's objection.

      For the foregoing reasons, we affirm Appellant's judgment of sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/24/2019




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