J-S41026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSHUA ALLEN KURTZ

                            Appellant                   No. 1727 MDA 2014


              Appeal from the Judgment of Sentence May 28, 2014
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001034-2013


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 06, 2015

        Joshua Allen Kurtz appeals from the judgment of sentence imposed in

the Court of Common Pleas of Lebanon County after he was convicted of one

count of driving under the influence (DUI) - general impairment,1 one count

of DUI - highest rate of alcohol,2 and several summary offenses.             Upon

careful review, we affirm.

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

        On March 24, 2013, Ronald Ream (herein “Mr. Ream”) called
        Pennsylvania State Police (herein “PSP”) to report a possible
        accident on West Franklin Avenue, Jackson Township, Lebanon
        County, Pennsylvania. Mr. Ream is a resident on West Franklin
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802(a)(1).
2
    75 Pa.C.S.A. § 3802(c).
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      Avenue and was awakened by what he believed to be the sound
      of a car accident outside around two o’clock in the morning. Mr.
      Ream looked out his window and saw the aftermath of the
      accident. The initial call was placed to PSP at approximately
      2:17 a.m.

      At approximately 2:19 a.m. Trooper Christopher Graf (herein
      “Trooper Graf”) was dispatched to the scene. Trooper Graf
      testified that he arrived on the scene at approximately 2:28 a.m.
      When he arrived, there were fire and emergency medical
      personnel present, but there was no driver present. Trooper
      Graf observed a black Pontiac Grand Prix on the wrong side of
      the roadway. It appeared that the Pontiac Grand Prix had been
      traveling east on West Franklin Avenue, crossed into the
      opposing traffic lane and hit a car which was parked on the
      opposite side facing west (on the north side of the road). The
      parked car was struck with sufficient force to cause it to be
      moved from the road up onto the steep, hilly lawn of a
      neighboring yard.

      Trooper Graf testified that [Kurtz] arrived on the scene with his
      parents between 2:33 and 2:38 a.m. When he spoke with
      [Kurtz], Trooper Graf smelled a strong odor of alcohol and
      observed that [Kurtz’s] speech was slurred, he repeated his
      answers, his eyes were bloodshot and glassy, and that he had
      difficulty explaining to Trooper Graf what had happened. [Kurtz]
      told Trooper Graf that he had been driving the Pontiac Grand
      Prix at the time the accident occurred and admitted that he had
      been drinking alcohol at a friend’s house that evening prior to
      the accident.

      Trooper Graf arrested [Kurtz] for suspicion of DUI. [Kurtz] was
      transported to Good Samaritan Hospital (herein “GSH”) to have
      his blood drawn. Lauren Stroh, a phlebotomist at GSH, drew
      [Kurtz’s] blood at 3:50 a.m. [Kurtz’s] BAC was .201%.

Trial Court Opinion, 9/18/14, at 2-3.

      On March 25, 2014, following a bench trial, Kurtz was found guilty of

the aforementioned offenses. The court sentenced Kurtz on May 28, 2014 to

six months’ intermediate punishment and a fine of one thousand dollars

($1,000) plus additional fines for the summary offenses.    Kurtz filed post-


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sentence motions, which the court denied. He then filed a timely notice of

appeal to this Court, as well as a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      On appeal, Kurtz raises the following issues for our review:

         A. Did the trial court err in denying [Kurtz’s] motion for
            judgment of acquittal as to count two – DUI: general
            impairment 75 Pa.C.S.A. § 3802(a)(1) where the
            Commonwealth’s evidence failed to establish that [Kurtz]
            was under the influence of alcohol to a degree which
            impaired his ability to safely drive, operate, or be in actual
            physical control of a vehicle at the time he last did so?

         B. Did the trial court err in denying [Kurtz’s] motion for
            judgment of acquittal as to count one – DUI: highest rate
            of alcohol 75 Pa.C.S.A. § 3802(c) where the
            Commonwealth’s evidence failed to establish that [Kurtz]
            consumed enough alcohol prior to driving such that his
            blood alcohol concentration was 0.16% or higher within
            two hours of driving?

Appellant’s Brief, at 6.

      We review a sufficiency of the evidence claim under the following

standard:

      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
      that of 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 sustain its burden of
      proving every element of the crime beyond a reasonable doubt

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      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. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(brackets omitted).

      Kurtz first challenges the sufficiency of the evidence to establish his

general impairment DUI conviction. Kurtz asserts that the Commonwealth

failed to prove that he was incapable of safely driving due to alcohol

intoxication at the time of the accident, as the police found him about thirty

minutes after the accident. Kurtz also claims that the Commonwealth failed

to prove that he did not consume alcohol after the accident.

      Pennsylvania’s DUI statute for general impairment provides, in

relevant part, as follows:

      § 3802. Driving under influence of alcohol or controlled
      substance

      (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.

75 Pa.C.S.A. § 3802(a)(1).

      “The Commonwealth may sustain its burden of proof by wholly

circumstantial evidence.” Commonwealth v. Segida, 985 A.2d 871, 880

(Pa. 2009) (citations omitted).



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      The types of evidence that the Commonwealth may proffer in a
      [DUI] 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 and
      the two hour time limit for measuring blood alcohol level does
      not apply. Blood alcohol level is admissible in a [DUI] case only
      insofar as it is relevant to and probative of the accused’s ability
      to drive safely at the time he or she was driving. The weight to
      be assigned these various types of evidence presents a question
      for the fact-finder, who may rely on his or her experience,
      common sense, 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. “Furthermore, the accident itself constitutes evidence that [the

defendant] drove when he was incapable of doing so safely.” Id. at 880.

      Here, Kurtz admitted to Trooper Graf that he was driving the car that

caused the accident. N.T. Trial, 3/25/14, at 12. Trooper Graf testified that

he smelled a strong alcoholic odor emanating from Kurtz, his eyes were

bloodshot, and he slurred his speech. Id. at 11. As in Segida, the accident

itself also constitutes evidence that Kurtz was incapable of safely driving due

to alcohol intoxication at the time of the accident.

      Kurtz attempts to point out a discrepancy in Trooper Graf’s testimony

as to whether Kurtz had told Trooper Graf whether he had consumed any

alcohol after the accident.    However, the record reflects that Kurtz told

Trooper Graf that he had not consumed any alcohol from the time of the

accident to the time of his interaction with the police.       Id. at 12, 25.

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Moreover, Segida, a factually similar case, held that the Commonwealth

need not “prove that an accused did not drink any alcohol after the

accident.” Segida, 985 A.2d at 884 n. 6. Accordingly, viewing the evidence

in the light most favorable to the Commonwealth as verdict winner, we

agree with the trial court that there was sufficient evidence to support a

guilty verdict for the general impairment DUI offense.

      Kurtz next challenges the sufficiency of the evidence to establish his

highest rate of alcohol DUI conviction. The arguments Kurtz makes for this

claim mirror those made in his first challenge above, which have already

been addressed. Additionally, Kurtz asserts that the Commonwealth failed

to prove that Kurtz’s BAC was 0.16% or higher within two hours of having

driven. The only evidence of when Kurtz last drove the car is the testimony

from Mr. Reams that he woke up because of the accident at 2:00 a.m.

      Pennsylvania’s DUI statute for highest rate of alcohol provides, in

relevant part, as follows:

      § 3802. Driving under influence of alcohol or controlled
      substance

                                    ***

      (c) Highest 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
      0.16% or higher 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(b).



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      The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence. Commonwealth v. Lambert,

795 A.2d 1010, 1013 (Pa. Super. 2002).             “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.” Id.

      Here, the record shows that Mr. Reams woke up because of the

accident and his wife told him that it was 2:00 a.m. N.T. Trial, 5/25/14, at

32. The record also shows that Kurtz’s blood was drawn at 3:50 a.m. and

his BAC was 0.201%. Id. at 15. This timeline establishes that Kurtz’s BAC

was over the 0.16% limit within two hours after he had last driven his car.

We have concluded above that the evidence was sufficient to prove that

Kurtz was driving while intoxicated and that he did not drink any alcohol

after the crash.   Therefore, the evidence was sufficient to allow the fact

finder to convict Kurtz of this offense as well.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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