J-S36005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS M. MCCHESNEY

                            Appellant                 No. 951 WDA 2014


              Appeal from the Judgment of Sentence May 1, 2014
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-CR-0000378-2013


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JULY 21, 2015

        Appellant, Thomas M. McChesney, appeals from the judgment of

sentence entered in the Court of Common Pleas of Greene County after he

was convicted on charges of driving under the influence of alcohol.

McChesney argues that the trial court erred in finding that the breath testing

device used to measure his blood alcohol content (“BAC”) was an accepted

device. We disagree and affirm.

        In the early evening of September 2, 2013, McChesney was pulled

over for driving through a stop sign without coming to a complete stop. The

Pennsylvania State Trooper who initiated the stop noticed indications of

alcohol intoxication, and administered a preliminary breath test as well as a
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*
    Retired Senior Judge assigned to the Superior Court.
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horizontal gaze nystagmus test. Based upon the results of these tests, the

Trooper placed McChesney under arrest and transported him to the barracks

for further testing.

      At the barracks, the Trooper administered a breath test with a device

known as a “DataMaster DMT.”        This test indicated that McChesney’s BAC

was 0.144.     As a result, the Trooper filed charges of driving under the

influence of alcohol (high rate), driving under the influence of alcohol

(incapable of safe driving), and failure to stop at a stop sign.

      McChesney filed a motion to suppress, arguing that the stop initiated

by the Trooper was invalid.      After a hearing, the trial court denied the

motion.

      The case proceeded to a non-jury trial. McChesney objected to, inter

alia, the admission of the DataMaster DMT results, arguing that the

Commonwealth had not supplied the necessary foundation. The trial court

overruled McChesney’s objection, and ultimately found McChesney guilty on

all counts. On the same date, the trial court sentenced McChesney to a term

of incarceration of 48 hours to six months. This timely appeal followed.

      On appeal, McChesney raises a single issue for our review. McChesney

argues that the Commonwealth failed to meet its burden of proof regarding

foundation for the admission of his BAC. Specifically, McChesney contends

that the Commonwealth failed to present sufficient evidence that the

DataMaster DMT was “approved equipment” for determining BAC.


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      While McChesney styles this argument as a challenge to an evidentiary

ruling, we conclude that his arguments are more properly classified as a

challenge to the sufficiency of the evidence supporting his conviction.    We

address McChesney’s argument by first noting our standard of review. When

reviewing a non-jury trial, we review the record to ensure the findings of fact

are supported by competent evidence and that the trial court did not commit

an error of law. See Commonwealth v. Kaufman, 849 A.2d 1258, 1259

(Pa. Super. 2004).

      When considering a challenge to the sufficiency of the evidence,
      this court must view the evidence in a light most favorable to the
      Commonwealth, the verdict winner, and draw all reasonable
      inferences therefrom. We must then determine whether the
      evidence was sufficient to permit the fact-finder to conclude that
      each and every element of the crimes charged was proven
      beyond a reasonable doubt. Any question of doubt is for the
      fact-finder, unless the evidence is so weak and inconclusive that
      as a matter of law no probability of fact can be drawn from the
      combined circumstances.

Id. (internal citations omitted).

      Here, McChesney challenges his conviction for driving under the

influence of alcohol (high rate), 75 Pa.C.S.A. § 3802(b).     Section 3802(b)

provides that a person may not operate a motor vehicle if he or she is under

the influence of alcohol such that the person’s BAC is at least 0.10% but less

than 0.16% within two hours after the person has operated the vehicle. See

75 Pa.C.S.A. § 3802(b). An operator’s BAC can be measured for purposes of

Section 3802 through the use of “approved equipment” operated by

“qualified persons.”   75 Pa.C.S.A. § 1547(c).    “Approved equipment” are

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devices certified through regulations promulgated by the Department of

Health and the Department of Transportation.             See 75 Pa.C.S.A. §

1547(c)(1).      Devices so certified are listed at least annually in the

Pennsylvania Bulletin. See, e.g., 45 Pa.B. 79.

     During the direct examination of the Trooper who arrested McChesney,

the following relevant exchange occurred:

     Q:    How long of a trip is it from this place where you
     encountered Mr. McChesney to the Pennsylvania State Police
     barracks?

     A:       Approximately 25 to 30 minutes.

     Q:   Okay.       And are you a certified breath test instrument
     operator?

     A:       Yes, ma’am.

     Q:   And let me ask you this: What type of instrument do they
     have available at the Pennsylvania State Police barracks?

     A:       The DataMaster, ma’am.

     Q:    And is that an instrument approved for – a breath testing
     device approved for determining blood alcohol content in
     Pennsylvania?

     A:       Yes, ma’am.

     Q:       And, I don’t know. I have the Pennsylvania Bulletin here.

              [Prosecutor:]      I don’t know if the Court wishes to take
              judicial notice, or if counsel wishes to see the copy of the
              Pennsylvania Bulletin regarding this particular device or –

              THE COURT:        Well, the officer has testified that it’s
              been accepted.




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              [Prosecutor:]        -- if there’s any challenge to the approval
              of this device.

              [Def. Counsel:] Well, I think the evidence has to be that
              it is an approved device. I think the officer can determine
              that it’s approved.[1]

              [Prosecutor:]     All right. I have with me printed out a
              copy of the Pennsylvania Bulletin, Document No. 1442. I
              note on page 11 of 13 – and I don’t have an extra copy of
              this, but I can certainly show it to [defense counsel] and
              provide to the Court, that it lists the DataMaster DMT as
              approved.

              THE COURT:           Well, do you want to show [defense
              counsel?]

              [Def. Counsel:]      We would object, Your Honor.

              THE COURT:           Based on?

              [Def. Counsel:] This is a list of approved devices as of
              January 4, 2014. This event occurred in 2013.

              [Prosecutor:]      If the Court wishes for me to take a
              recess, I can access the previous Pennsylvania Bulletin.
              I’d certainly do that if the Court wishes me to do so.

              THE COURT:           No.    We’ll accept it.   The objection is
              overruled.

N.T., Trial, 4/30/14, at 18-20.

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1
   The Commonwealth notes in its brief that McChesney filed a motion for
correction of the record with respect to this response in the transcript. The
Commonwealth further observes that trial court ordered the court reporter
to review the transcript and provide defense counsel an opportunity to listen
to the recording. “The Commonwealth knows of no subsequent correction or
modification to the record.” Appellee’s Brief, at 3, n.4. In any event, we
find this statement by defense counsel to be of little significance, given
defense counsel’s objection shortly thereafter.



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         McChesney argues that the Commonwealth never requested the trial

court take judicial notice of the approved status of the DataMaster DMT

through the Pennsylvania Bulletin.             We conclude that while the prosecutor

never explicitly requested the trial court take judicial notice, she did

reference judicial notice before presenting the Pennsylvania Bulletin to the

court.      Furthermore, when the trial court overruled defense counsel’s

objection, it ruled that the relevant Pennsylvania Bulletin was being admitted

as evidence. Once the Bulletin was admitted into evidence, the trial court

was required to take judicial notice of it. See 45 Pa.C.S.A. § 506.

         In the alternative, McChesney argues that since the Commonwealth

presented the list of approved devices published in 2014, it could not

support a finding that the DataMaster DMT was an approved device at the

time of his arrest.      However, this Court has rejected a similar argument

under a previous version of 75 Pa.C.S.A. § 1547(c). See Commonwealth

v. Hess, 503 A.2d 448, 449 (Pa. Super. 1986) (conditions for admissibility

of BAC contained in 75 Pa.C.S.A. § 1547(c) must be satisfied at time of trial,

not at the time of testing).2 We thus conclude that McChesney’s challenge

on appeal merits no relief.

         Judgment of sentence affirmed. Jurisdiction relinquished.

         Judge Strassburger joins the memorandum.
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2
 We note that in any event, the DataMaster DMT was an approved device in
2013. See 43 Pa.B. 72.



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     Judge Jenkins concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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