J-S16004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARK CHRISTOPHER HESS

                        Appellant                    No. 1330 MDA 2014


         Appeal from the Judgment of Sentence February 11, 2014
            In the Court of Common Pleas of Lebanon County
            Criminal Division at No: CP-38-CR-0000401-2013


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                            FILED APRIL 27, 2015

     Appellant, Mark Christopher Hess, appeals from the judgment of

sentence entered by the Lebanon County Court of Common Pleas after his

conviction of two counts of driving under the influence (“DUI”) following a

bench trial. He challenges the admissibility of evidence and the sufficiency

and weight of the evidence. We affirm.

     On December 30, 2012, Hess was driving on State Route 72 when he

sped past Pennsylvania State Police (“PSP”) Trooper Kara Sadusky at a pace

of 68 miles-per-hour in a 45 miles-per-hour zone. Trooper Sadusky

conducted a traffic stop and while reviewing Hess’s identification documents,

she noticed a strong odor of alcohol.      She also observed that he had

bloodshot and glassy eyes, slurred speech, and acted sluggish.           She

administered a field sobriety test.   Hess failed.   Trooper John Huffstutler
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transported Hess to the State Police Jonestown Barracks, where Trooper

Christopher     O’Brien    administered        a   chemical   breath   test   using   the

Datamaster DMT device. The test results showed that Hess had a blood

alcohol level (“BAC”) of .091% and .095%. He was charged with one count

DUI – Second Offense pursuant to 75 Pa.C.S.A. § 3802(a)(2); one count DUI

– General Impairment – Second Offense, pursuant to 75 Pa.C.S.A. §

3802(a)(1); a speeding violation, and other driving offenses.

       At Hess’s bench trial, Trooper Sadusky testified regarding the

circumstances leading up to his arrest.             Trooper Huffstutler testified that

Hess confessed to him while at the police barracks that he had had four or

five beers earlier that day. Trooper O’Brien testified at length regarding his

training on the Datamaster DMT1 and the administration of Hess’s breath

test. Corporal Edward Burns, the trooper in charge of breathalyzer device

maintenance, testified regarding the procedures he follows in calibrating the

Datamaster DMT annually and in checking its accuracy on a monthly basis,

stating that his maintenance regimen complied with the requirements set

forth in 75 Pa.C.S.A. § 1547(c)(1). The trial court admitted into evidence the

certificates showing that the calibration and accuracy tests had been

performed as required.          Hess did not object to the admission of those

certificates. Prior to the admission of Hess’s BAC test results, his attorney

____________________________________________


1
  The court took judicial notice that the Datamaster DMT is an approved BAC
testing device. Hess did not object.



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lodged a general foundational objection, stating that the Commonwealth’s

witnesses had not followed the “policies and protocol as they have a

responsibility so to do as to codes, as to admissibility of breath testing

results.” Notes of Testimony, Trial, 2/11/14, at 146. The court overruled

the objection and admitted Hess’s BAC test results into evidence.

       The court found Hess guilty of the DUI and speeding offenses, and

sentenced him to a term of five days’ to six months’ incarceration. After the

denial of his post sentence motions, he timely appealed to this Court.

       Hess raises the following issues for our review.

              a. Did the Commonwealth, as a matter of law, provide
              insufficient evidence to meet its burden of proof with
              regard to Count I, 75 Pa.C.S.A. § 3802(a)(2) where they
              failed to comply with 67 Pa.Code 77.24(d) and 67 Pa.Code
              § 77.24(e) in that the Commonwealth failed to present any
              evidence concerning the manufacturer of the simulator
              solution; what independent laboratory certified the solution
              based on gas chromatographic analysis; or who the
              manufacturer of the ampoules was; or what generally
              accepted scientific methods were used to insure that the
              ampoules conformed to manufacturer specifications.[2]
____________________________________________


2
  Simulator solution is placed in ampoules which are used to test the
accuracy of a breathalyzer device. The solution is defined as:

       An aqueous standard ethanol solution which, when equilibrated
       with air in a breath simulator device, produces an air-alcohol
       mixture of a predetermined concentration that is designed to
       give a specific reading on breath test equipment and can be used
       to calibrate and verify the accuracy of Type A alcohol breath test
       equipment.

77 Pa.Code § 77.22.
(Footnote Continued Next Page)


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              b. Whether the trial court’s verdict of guilt as to 75
              Pa.C.S.A. § 3802(a)(1) – DUI: General Impairment was
              against the weight of the evidence as the Trooper was
              unable to link any observations of unsafe driving to Hess
              and the Commonwealth’s evidence did not establish that
              Hess’ mental and physical faculties were impaired such
              that he could not safely operate a motor vehicle.

Appellant’s Brief at 1.

        Hess first avers that the court should not have admitted his BAC test

results into evidence because the Commonwealth made “no reference” to

the manufacturer or certification of the simulator solution ampoules used to

test the PSP’s breathalyzer device and, thus, “failed to comply with 67 Pa.

Code § 77.24(d) and (e).”3 Appellant’s Brief at 20, 23.             Although his
                       _______________________
(Footnote Continued)


3
    67 Pa.Code 77.24(d) and (e) provide:

        (d) Simulator solution certification. The manufacturer of
        simulator solution shall certify to the test user that its simulator
        solution is of the proper concentration to produce the intended
        results when used for accuracy inspection tests or for calibrating
        breath test devices. This certification shall be based on gas
        chromatographic analysis by a laboratory independent of the
        manufacturer.

        (e) Ampoule certification. The manufacturer of ampoules utilized
        in Type A breath testing devices shall certify to the user that its
        ampoules will produce the intended results when used for actual
        breath tests, accuracy inspection tests or for calibrating breath
        test devices. The certification shall be based on laboratory
        testing conducted by a laboratory independent of the
        manufacturer. The laboratory testing shall employ generally
        accepted scientific methods sufficient to insure that the
        ampoules conform to manufacturer specification.



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introductory sentence of this issue is framed in his “Questions Presented” as

a challenge to the sufficiency of the evidence, Hess does not discuss the

elements of the DUI offenses or any authority pertaining to review of

sufficiency of the evidence. Rather, he argues only that the Commonwealth

should have introduced evidence concerning the manufacturer’s certification

of the simulator solution ampoules before the court admitted evidence of his

BAC levels.

      It is well-settled that evidence is admitted at trial at the discretion of

the trial court.   See Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa.

2009). No evidentiary ruling will be reversed absent a showing that the court

clearly abused that discretion. See id.

      Hess concedes that this Court’s decision in Commonwealth v. Little,

512 A.2d 674 (Pa. Super. 1986), a case in which the appellant raised the

identical issue raised here, provides that “the Commonwealth does not bear

the burden of producing the certificate for the simulator solution or

ampoules at trial.” Appellant’s Brief at 23. He also acknowledges that there

is a “rebuttable presumption that placing the simulator solution on the

market, after independent testing, constitutes certification that the products

will operate as intended.” Id. at 22 (citing Little).

      Hess is correct.    The Commonwealth did not have the burden to

introduce at trial the manufacturer’s certifications for the simulator solution

or ampoules. In fact, the Little court quite pointedly stated: “Absent some


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suggestion that the products were in fact defective, the Commonwealth was

under no burden to show certification of the manufacturer's product.” Id. at

678. See also Commonwealth v. Starr, 739 A.2d 191, 197 (Pa. Super.

1999) (observing that Little established “a rebuttal presumption that placing

the solution or ampoules on the market, after independent testing,

constitutes certification that the products will operate as intended.”). Our

Supreme Court has agreed, noting that

      Such a conclusion is consistent with one of the purposes of 75
      Pa.C.S. § 1547 which is to facilitate the acquisition of chemical
      testing under scientifically accepted standards, and to permit
      their utilization in legal proceedings so that intoxicated drivers
      are removed from the roads of the Commonwealth. When
      applied to manufacturer’s certificates, the presumption of
      accuracy can be justified in light of the fact that the
      Commonwealth has no access to the records, test results, or
      laboratories used to prepare the ampoules and, in light of the
      fact that when the preparation is done according to scientifically
      accepted practices, the accuracy of the sample is virtually
      assured.

Commonwealth v. Brosnick, 607 A.2d 725, 729 (Pa. 1992).

      Our review of the trial transcript indicates Hess neither questioned the

quality of the solution or ampoules used in the Datamaster DMT, nor

requested information regarding the manufacturer or testing of the solution.

As noted above, the burden was on Hess to raise a defect that would

necessitate the admission of the manufacturer’s certifications and related

evidence. This he did not do. Accordingly, the trial court did not abuse its

discretion in admitting the BAC test results.




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      In his next issue, Hess challenges the weight of the evidence by

asserting that Trooper Sadusky’s “opinion that [he] was incapable of safe

driving was based on mere subjective factors that do not scientifically

correlate to levels of impairment.” Appellant’s Brief at 26. That is the sum

and substance of his weight argument before he concludes, “the finding of

guilt was so contrary to the evidence presented at trial as to shock one’s

sense of justice.” Id. Hess utterly fails to develop his weight challenge with

proper reference to the record, citation to authority, and meaningful

analysis. Accordingly, his weight challenge is waived. See Pa.R.A.P. 2119,

and Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super.2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (finding issue waived because the

appellant     “cited   no   legal   authorities   nor   developed   any   meaningful

analysis”).

      Hess also argues, within his weight claim, that the Commonwealth

“failed to prove … [that] he [had] consumed ethanol to such a degree that it

substantially impaired his ability as to the essential acts of safe driving.”

Appellant’s Brief at 24 (citing 75 Pa.C.S.A. § 3802(a)(1)). He recites the

elements that must be proven to “sustain a conviction of the common law

theory of alcohol-related DUI” as set forth in Commonwealth v. Kowalek,

647 A.2d 948 (Pa. Super. 1994), before summarily concluding that the

Commonwealth “relied entirely on speculative, non-specific, circumstantial

evidence to support its accusation that Hess had imbibed alcohol.”


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Appellant’s Brief at 25 and n.4.       This argument is a challenge to the

sufficiency, not the weight, of the evidence, and it is without merit.

      Our standard of review of a sufficiency challenge is well-settled.

      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 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 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 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. Valentine, 101 A.3d 801, 805 (Pa. Super. 2014)

(citation omitted).

      The DUI statute provides, in relevant part, that “[a]n 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).    As

noted above, the crime may be proven by means of wholly circumstantial

evidence. Valentine, 101 A.3d at 805.

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      There is no doubt that in addition to Trooper Sandusky’s testimony

regarding Hess’s physical demeanor, other record evidence indicated that

Hess had been driving while impaired by alcohol. That evidence included (1)

testimony from Trooper Sandusky regarding the radar reading showing him

driving at 23 miles per hour over the speed limit; (2) the field sobriety test

result; (3) the BAC breathalyzer test result; and (4) Hess’s confession to

Trooper Huffstutler that he had consumed four or five beers on the day he

was stopped by Trooper Sandusky.

      In light of our standard of review, we conclude that the evidence was

sufficient to support the court’s conclusion that Hess had “imbibe[ed] a

sufficient amount of alcohol such that [he was] rendered incapable of safely

driving.” 75 Pa.C.S.A. § 3802(a)(1). Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




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