J-S27005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER W. LEBER,

                            Appellant                No. 1862 MDA 2015


         Appeal from the Judgment of Sentence September 28, 2015
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0002753-2007

BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                             FILED APRIL 21, 2016

       Appellant, Christopher W. Leber, appeals from the September 28,

2015 judgment of sentence of ten days to six months of imprisonment

entered following his conviction at a bench trial of driving under the

influence, general impairment. Following our careful review, we affirm.

       The trial court summarized the facts of the crime as follows:

             At approximately 2:00 A.M. on September 24, 2006 1,
       Pamela Wilson was traveling south on Pennsylvania state Route
       441 when she observed a white Ford Explorer in front of her
       being driven erratically.      She followed the vehicle for
       approximately 3 to 4 miles and saw the vehicle repeatedly
       swerve “over the center line into the other lane,” then called
       911, reporting that she was following what appeared to be a
       drunk driver.2 In all she observed the vehicle swerve across the
       center line approximately 15 times before entering Columbia
       Borough. She was 2 or 3 car lengths behind [Appellant’s]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     vehicle as it traveled down a hill into Columbia Borough when
     she saw it strike a concrete barrier, go airborne, and “land . . .
     half on the sidewalk and half on the back of a parked car that
     was there.”
           1
             The delay between the charge and [Appellant’s]
           bench trial was caused by [Appellant’s] failure to
           appear and being wanted on a Bench Warrant for
           more than seven years.
           2
               Pennsylvania State Route 441 is a two-lane road.

           Officer Ryan Clingan of the Columbia Borough Police
     Department responded to the 911 call and observed the white
     Ford Explorer as it descended the hill and entered the Borough. 3
     The officer saw [Appellant’s] vehicle, “coming down the hill south
     on 441” followed by the vehicle in which Pamela Wilson was a
     passenger. He recalled that he clearly saw [Appellant’s] vehicle
     “swerve . . . over the center line,” crash into a sign on a corner,
     go onto the sidewalk and then into a parked car with the “sign
     embedded into the hood of the vehicle.”
           3
            On the date of the accident, [Officer] Clingan was
           employed as a Patrolman in Columbia Borough.

            Immediately after witnessing the accident, Officer Clingan
     called for EMS assistance and approached the driver’s side
     window of the vehicle. [Appellant] Christopher W. Leber was the
     only occupant and was found in the driver’s seat. When he
     looked into the vehicle, Officer Clingan observed an “open
     cooler” with bottles and cans of beer and “an open beer in the
     front of the car” within reach of [Appellant]. This container “was
     open as if [Appellant] was consuming it.” The cooler was upright
     and the lid was open although some beer cans and bottles had
     spilled out of the cooler.         Officer Clingan testified that
     [Appellant] had slurred speech, glassy eyes, and that
     [Appellant’s] breath smelled of alcohol. He also noticed that
     [Appellant] had slow movements and was bleeding from his
     head. Officer Clingan concluded, based on his training and
     experience, that [Appellant] was most likely DUI.4 Based on this
     conclusion, Officer Clingan charged [Appellant] with DUI, general
     impairment.5




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              4
                Officer Clingan did not have [Appellant] perform
              the standard field sobriety tests due to [Appellant’s]
              head injury and, despite requesting a blood sample
              from Lancaster General Hospital (“LGH”) almost
              immediately after the accident, was unable to obtain
              [Appellant’s] blood sample because LGH did not
              collect one.
              5
                  75 Pa.C.S.A. § 3802(a)(1).

Trial Court Opinion, 12/1/15, at 1–3 (citations to record omitted).

       Appellant was charged with one count of DUI, general impairment and

as noted, apparently failed to appear for trial in 2006.        A bench warrant

issued, and on September 28, 2015, Appellant, who resided in Florida,

appeared for a bench trial.1          N.T., 9/28/15, at 47.   Pamela Wilson and

Officer Clingan testified, as did Appellant.      The trial court found Appellant

guilty of DUI, general impairment and sentenced him to ten days to six

months of incarceration, imposed a $1,000 fine, and suspended his driver’s

license for twenty-two months. Id. Appellant filed a timely notice of appeal.

Both the trial court and Appellant complied with Pa.R.A.P. 1925.

       Appellant raises the following single issue on appeal:

       WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICIENT TO
       SUSTAIN A CONVICTION FOR DRIVING UNDER THE INFLUENCE
       UNDER 75 PA.C.S.A. 3802(a)(1)?

Appellant’s Brief at 4.


____________________________________________


1
   The record does not reveal the actions leading to Appellant’s custody and
incarceration prior to the instant trial.



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        In reviewing a sufficiency challenge, “we must decide whether the

evidence admitted at trial, and all reasonable inferences drawn therefrom in

favor of the Commonwealth, as verdict winner,” are sufficient to support all

elements of the offense.          Commonwealth v. Hitcho, 123 A.3d 731, 746

(Pa. 2015).      The trial court, sitting as the finder of fact, is free to believe

some, all, or none of the evidence. Commonwealth v. Cousar, 928 A.2d

1025 (Pa. 2007); Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa.

Super.    2015),      appeal   denied,      119   A.3d   351    (Pa.   2015).      “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”       Commonwealth v. Roberts, ___ A.3d ___, ___, 2016 PA

Super     22,    at   *5   (Pa.    Super.    filed   February   2,     2016)    (quoting

Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super. 2010)). As

an appellate court, we may not re-weigh the evidence and substitute our

judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d

994 (Pa. Super. 2015).

        Appellant was convicted of DUI pursuant to 75 Pa.C.S. § 3802(a),

which provides as follows:

        (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.

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75 Pa.C.S. § 3802(a)(1).            In order to be found guilty of DUI—general

impairment, “the Commonwealth [must] prove the following elements: the

accused was driving, operating, or in actual physical control of the

movement of a vehicle during the time when he or she was rendered

incapable     of   safely   doing   so   due   to   the   consumption    of    alcohol.”

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).                         Unlike the

other subsections of DUI, general impairment does not require proof that the

accused had a blood alcohol level in excess of the legal limit. Id. While a

blood alcohol level may be relevant, it is not necessary.               Id.     What is

necessary, however, is evidence that the accused was unable to drive safely

due to the consumption of alcohol. Id.

     Our      Supreme       Court     described     the   types   of   evidence     the

Commonwealth may use to prove DUI, general impairment as follows:

     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 offender’s 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. . . . The weight to be assigned these various types of
     evidence presents a question for the factfinder, who may rely on
     his or her experience, commonsense, 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.

Id. at 879.

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      Appellant asserts that the Commonwealth failed to produce evidence

of his blood-alcohol level or evidence of performance of field-sobriety tests.

Appellant’s Brief at 9. Segida teaches that such evidence is not required.

Segida, 985 A.2d at 879; see also Commonwealth v. Griffith, 32 A.3d

1231, 1238 (Pa. 2011) (“Although the Commonwealth may proffer evidence

of alcohol level . . . to establish that the defendant had imbibed sufficient

alcohol to be rendered incapable of driving safely, it is not required to do so

under subsection 3802(a)(1) . . . . This is well-established, long-standing

law in Pennsylvania.”).

      Appellant suggests that his glassy eyes, slow movements, and odor of

alcohol from his breath could have been attributed to the fact that he was

“bleeding from his head” and the spilling of beverages in his car. Appellant’s

Brief at 9. Appellant’s contention, however, ignores our standard of review,

which requires us to view the evidence in the light most favorable to the

Commonwealth, as verdict winner.       Hitcho, 123 A.3d at 746.       At trial,

witness Pamela Wilson testified that Appellant was driving erratically by

crossing into oncoming traffic fifteen times. N.T., 9/28/15, at 6. In fact, the

witness, who followed Appellant for “probably a half hour,” testified that

Appellant’s vehicle “was over the whole way on the other side of the road. . .

.[H]e was actually on the other side of the road. So if there was a vehicle

coming towards him, they would have hit head-on.” Id. at 5.




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      Officer Clingan, who responded to Ms. Wilson’s 911 call, also saw

Appellant drive over the center line, hit a sign, swerve onto a sidewalk, and

crash into a parked car. N.T., 9/28/15, at 11–12. The officer observed that

Appellant had bloodshot, glassy eyes, slurred speech, and slow movements.

Id. at 15. Officer Clingan observed an open, upright cooler in the back of

the vehicle and an open can of beer in the front. Id. The officer testified

that he “immediately smell[ed] the odor of alcohol” as he spoke to

Appellant. Id.

      The trial court found Appellant’s explanation at trial “incredible” and

that it “defies belief.” Trial Court Opinion, 12/1/15, at 7. Moreover, it found

no merit to Appellant’s claim that “containers of alcohol in the front of his

vehicle were opened only by the impact of the crash.” Id. at 8.

      Upon review of the parties’ briefs, the certified record, and our

standard of review, we conclude that the trial court properly determined that

sufficient evidence was produced at trial to support a finding of guilt of DUI,

general impairment.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2016

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