J-S24011-17

                                  2017 PA Super 176



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

SAMUEL ANTHONY MONARCH

                            Appellant                  No. 778 WDA 2016


             Appeal from the Judgment of Sentence March 24, 2016
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000433-2015


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY PANELLA, J.                                  FILED JUNE 06, 2017

        About an hour before noon on a Saturday morning, Donna Peltier, the

mother of Appellant, Samuel Monarch, contacted the Franklin County 911

Emergency Services Center. She informed them that her son was intoxicated

and had just driven away from her residence with his eight-year-old

daughter. Officers caught up with Monarch inside his residence shortly

thereafter and observed that Monarch’s speech was slurred, he reeked of

alcohol, and he was unstable while standing. Monarch refused to take

sobriety tests and refused breath and blood tests.

        At trial, Peltier testified that she did not believe Monarch to have been

intoxicated when he drove away from her home. The Commonwealth
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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impeached this testimony with a prior recorded interview of Peltier. The jury

convicted Monarch of one count of driving under the influence/general

impairment (“DUI”) and one count of endangering the welfare of his

daughter. The trial court increased the grading of the DUI conviction

pursuant to 75 Pa.C.S.A. § 3803(b)(4), which imposes enhanced penalties

for defendants convicted of DUI if they refuse a breath or blood test.

      In this appeal from his judgment of sentence, Monarch raises four

issues for our review. First, that the trial court erred in admitting the

recorded interview of Peltier. Second, that the trial court erred in allowing

Peltier’s lay opinion on intoxication to be presented to the jury over

Monarch’s   objection.   Third,   that    the   evidence   presented     by   the

Commonwealth at trial was insufficient to support his conviction. Finally, that

pursuant to Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), the

imposition of an enhanced penalty based upon his refusal of blood tests was

unconstitutional. After careful review, we affirm.

      In his first two issues on appeal, Monarch challenges evidentiary

rulings made by the court during trial.

      A trial court has broad discretion to determine whether evidence
      is admissible, and a trial court’s ruling regarding the admission
      of evidence will not be disturbed on appeal unless that ruling
      reflects manifest unreasonableness, or partiality, prejudice, bias,
      or ill-will, or such lack of support to be clearly erroneous. If the
      evidentiary question is purely one of law, our review is plenary.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)

(citations and quotation marks omitted). “The court may exclude relevant

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evidence if its probative value is outweighed by a danger of … unfair

prejudice….” Pa.R.E. 403. “‘Unfair prejudice’ means a tendency to suggest

decision on an improper basis or to divert the jury’s attention away from its

duty of weighing the evidence impartially.” Id., Comment.

       Monarch first argues that the trial court abused its discretion in

allowing the Commonwealth to present a recorded interview of Peltier to the

jury. At trial, Peltier testified that Monarch had driven away from her home

at approximately 8:30 a.m. on the morning in question. See N.T., Jury Trial,

2/12/16, at 134. She furthermore testified that Monarch did not exhibit any

symptoms of being drunk, nor did she believe that Monarch was intoxicated

when he drove away with his daughter in tow. See id., at 133-134.

       Obviously nonplussed by Peltier’s testimony, the Commonwealth

sought to impeach Peltier with a recording of Peltier’s interview with police

investigators on the morning of Monarch’s arrest.1 Monarch asserts that

recorded interview “was of limited probative value,” and therefore should not

have been admitted. Appellant’s Brief, at 12. However, we note that the

recording is not a part of the certified or reproduced records on appeal. Nor

is there a certified transcription of the video in the record. We therefore have

no ability to assess Monarch’s assertion.
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1
  The Commonwealth declared it would use the recording solely for
impeachment purposes. See N.T., Jury Trial, 2/12/16, at 161. In admitting
the recording, the trial court instructed the jury that it could not use it as a
substantive basis for a conviction. See id., at 169.



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       It is an appellant’s responsibility to ensure that the certified record

contains    all   the   items   necessary      to   review   his   claims.   See,   e.g.,

Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super. 2016);

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008). “When a

claim is dependent on materials not provided in the certified record, that

claim is considered waived.” Commonwealth v. Petroll, 696 A.2d 817, 836

(Pa. Super. 1997) (citation omitted). As we are unable to review the

contents of the recorded interview, Monarch has failed to preserve this issue

for our review. Monarch’s first issue on appeal is therefore waived.

       Even if we were to address this issue by focusing on the limited, select

portions of the video that were the subject of questioning after the video

was played, we would find that Monarch is not entitled to relief.2 Monarch

contends that Peltier’s statements in the recording were equivocal. While the

statements highlighted by Monarch can be fairly construed as equivocations,

it is important to remember that the recording was presented solely as

impeachment evidence. The jury was free to evaluate whether the recorded

statements were inconsistent with Peltier’s testimony at trial—and weigh

Peltier’s testimony accordingly. The trial court did not abuse its discretion in

admitting the recording.
____________________________________________


2
  The prosecutor purported to quote statements made by Peltier in the
recording while questioning the police investigator who interviewed her.
Neither the Commonwealth nor Monarch has asserted that these quotes are
inaccurate.



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      Next, Monarch argues that the trial court erred in allowing the

Commonwealth to present Peltier’s hearsay, lay opinion that Monarch was

intoxicated on the morning in question. Officer Steven Barnes testified at

trial that Peltier had told him that Monarch was intoxicated when he left her

home that morning. See N.T., Jury Trial, 2/12/16, at 149.

      Lay witness testimony in the form of an opinion is limited to one that

is:

      (a) rationally based on the witness’s perception
      (b) helpful to clearly understanding the witness's testimony or to
      determining a fact in issue; and
      (c) not based on scientific, technical, or other specialized
      knowledge within the scope of Rule 702.

Pa.R.E. 701. “A lay person may testify to distinct facts observed by him

concerning the apparent physical condition or appearance of another.”

Commonwealth v. Counterman, 719 A.2d 284, 301 (Pa. 1998) (citation

omitted).

      Intoxication is a matter of common knowledge, and opinions
      given by lay people are permissible on the issue. However, the
      lay witness must have sufficient facts on which to base his
      opinion before he can express an opinion on another’s
      intoxication. The court also looks to the witness’[s] personal
      knowledge and observation.

Commonwealth v. Bowser, 624 A.2d 125, 133 (Pa. Super. 1993)

(citations omitted).

      Monarch poses two challenges to the foundation for the admission of

Peltier’s lay opinion. First, he contends that Peltier’s statement in the

videotaped recording was equivocal, citing Commonwealth v. Hughes,

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389 A.2d 1081 (Pa. 1978). As noted previously, this issue is waived due the

absence of this recording from the certified record.

      Even if we were to reach this argument, we would offer Monarch no

relief. In Hughes, the Court held that a trial court properly excluded a lay

witness’s opinion that the appellant, Hughes, had been intoxicated. See id.,

at 1083. The foundation for the opinion was that Hughes’s speech was

“slightly slurred,” that Hughes’s gait was odd, and that he “swayed like back

and forth” while talking. Id.

      Hughes is plainly distinguishable. There, the Court was reviewing a

trial court’s decision to preclude the lay testimony. The decision to admit

testimony is entrusted to the discretion of the trial court. An affirmance of

that decision is not equivalent to a positive rule of law that all other trial

courts must follow. Rather, it is merely a recognition that the trial court’s

decision was not unreasonable under the circumstances.

      Here, the trial court exercised its discretion to allow the lay opinion.

The foundation for the opinion included Peltier’s previous experience with

Monarch when he was drunk, see N.T., Jury Trial, 2/12/16, at 133, 174, and

that he smelled of alcohol and stumbled when walking, see id., at 172. We

cannot conclude that, under these circumstances, the trial court abused its

discretion.

      Monarch also contends that the trial court should have excluded

Peltier’s lay opinion due to the conflict with her testimony at trial. This was


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an issue of weight for the jury to decide, not an issue of admissibility. See

Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa. 2003) (“Alleged

prior inconsistencies … are classic points affecting evidentiary weight and not

admissibility.”) We can discern no reason to disturb the trial court’s exercise

of its wide discretion on this issue.

      In his third issue on appeal, Monarch argues that the evidence

presented at trial was insufficient to establish that he was intoxicated at the

time he drove his daughter home from Peltier’s home. Our standard of

review for a challenge to the sufficiency of the evidence is to determine

whether, when viewed in a light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for

the trier of fact to find that each element of the crimes charged is

established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). “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. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted).

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863


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A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).

      The fundamental basis of both of Monarch’s convictions is the

allegation that he was intoxicated when he drove his daughter home from

Peltier’s home on the morning in question. The core function for the jury

during trial was to distinguish between mutually exclusive stories of what

happened on that morning.

      Monarch’s significant other, Marcy Lusher, and Peltier testified to the

jury that he came to Peltier’s home around 8 a.m. that morning. While both

acknowledged that Monarch appeared “hung-over,” both adamantly claimed

that he did not appear to be intoxicated at the time. Both Peltier and Lusher

testified that they discussed Monarch’s behavior for several hours after he

left. Peltier told the jury that she called the police at 11 a.m. because she

was still angry with her son due to a heated exchange between them when

he had picked up his daughter. Lusher testified that Peltier “embellishes, she

exaggerates, she says whatever she needs to say. … She fabricates,

embellishes and exaggerates. It’s just her personality.” Thus, Monarch

asserts, Peltier’s subsequent statements to police were fabrications.

      Furthermore, Lusher testified that earlier that morning, Monarch was

involved in a work project with a colleague based in Europe. They were


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working on coding a computer program together, and the project required a

tremendous level of concentration and attention to detail. Monarch argues

that this evidence establishes beyond peradventure that he was sober.

      In   contrast,   the   Commonwealth    presented    evidence   that   911

Emergency Services received Peltier’s call at approximately 11 a.m. that

morning. See N.T., Jury Trial, 2/12/16, at 145. 911 Emergency Services

informed the Franklin Police Department that Peltier claimed that her “son

was removing an eight-year-old child from [Peltier’s] household and he

[was] getting into a vehicle while intoxicated and driving.” Id., at 146.

      Upon responding to Peltier’s home, officers found Peltier and Lusher,

who were both extremely upset. See id., at 148. Both Peltier and Lusher

proceeded to inform officers that Monarch had just left Peltier’s home, and

that he was intoxicated. See id., at 149.

      When officers located Monarch at his home, his vehicle’s hood was

warm to the touch and the engine was making a distinct clicking sound as it

cooled. See id., at 213. Monarch had slurred speech, bloodshot and glassy

eyes, had difficulty standing, and smelled strongly of alcohol. See id., at

195. He informed the officers that he had just walked from his mother’s

home. See id., at 196, 202. The responding officers all testified as to their

opinion that he was intoxicated to the point of being incapable of safely

operating a motor vehicle. See id., at 153, 203, 217.




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          The evidence at trial was sufficient to allow the jury to conclude that

either story was the truth. The jury clearly believed the Commonwealth’s

witnesses over Peltier and Lusher. It was entitled to do so, and we, as an

appellate court, cannot second-guess this function under the guise of a

review of the sufficiency of the evidence. Monarch’s third issue merits no

relief.

          In his fourth and final issue, Monarch argues that the sentence

imposed by the trial court is unconstitutional. It is undisputed that Monarch

was sentenced pursuant to 75 Pa.C.S.A. § 3803(b)(4), which imposed an

enhanced penalty for an individual who refused blood or breath testing and

was subsequently convicted of DUI. In Birchfield v. North Dakota, 136

S.Ct. 2160 (2016), the United States Supreme Court held that enhanced

penalties for refusing a blood test were unconstitutional. See id., at 2186. In

contrast, the Court held that enhanced penalties for refusing to consent to a

breath test did not violate the Constitution. See id.

          Here, Monarch refused not only the blood test, but also a breath test.

See N.T., Jury Trial, 2/12/16, at 201. Thus, the enhanced penalties in §

3803(b)(4) were not unconstitutional as applied in this case.3 Monarch’s final

issue on appeal merits no relief.

____________________________________________


3
  Monarch concedes that he did not preserve any Birchfield issue by lodging
a timely objection. We review the application of Birchfield solely as it
impacts the legality of the sentence imposed, as that claim is not waived.
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




                       _______________________
(Footnote Continued)

See Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa. 2016). Monarch
has not explicitly argued, nor has he preserved, any other challenge based
upon Birchfield.



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