J-S41043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERRENCE MICHAEL CLARK,

                            Appellant                No. 1760 MDA 2014


          Appeal from the Judgment of Sentence September 15, 2014
                 in the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0001674-2014

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

MEMORANDUM BY PLATT, J.:                               FILED JULY 10, 2015

        Appellant, Terrence Michael Clark, appeals from the judgment of

sentence imposed after his conviction, following a jury trial, of driving under

the influence (DUI) (highest rate of alcohol), second offense.1 We affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

              On February 22, 2014, at around 3:20 [a.m.], [West
        Manchester Township Police] Officer Keith Roehm observed two
        vehicles traveling at a high rate of speed down Route 30 in York
        County, Pennsylvania. Officer Roehm pulled onto the roadway
        and proceeded to follow a white Ford pickup truck. It took
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   75 Pa.C.S.A. § 3802(c). We note that the trial judge also convicted
Appellant of DUI (general impairment) and exceeding maximum speed
limits. See 75 Pa.C.S.A. §§ 3802(a)(1) and 3362(a)(2). These offenses are
not the subject of the instant appeal.
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     Officer Roehm, going well over 100 mph, approximately one mile
     to catch up to the vehicle. Using a method called pacing mode,
     Officer Roehm was able to clock the truck at 91 mph in a posted
     55 mph zone. As the truck approached a red light and began to
     slow down, Officer Roehm activated his emergency lights and
     initiated a traffic stop. The truck pulled over and Officer Roehm
     identified the driver as [] Appellant.

           Officer Roehm approached the vehicle and engaged []
     Appellant in conversation.       He noted that [] Appellant had
     glassy/bloodshot eyes, slurred speech, and an odor of beer
     coming off his breath. . . . Based on his training and experience,
     Officer Roehm asked [] Appellant to exit the vehicle and perform
     some field sobriety tests. . . .

                                *    *    *

           Based on what Officer Roehm observed, he placed []
     Appellant under arrest and transported him to York Hospital to
     have his blood drawn. Officer Roehm observed the nurse draw
     [] Appellant’s blood using the standard NMS Laboratory kit. The
     records indicated that [] Appellant’s blood was drawn at 4:05
     [a.m.] The kit was then sent to NMS Labs in Willow Grove,
     Pennsylvania. The report Officer Roehm received from NMS Labs
     stated that [] Appellant’s BAC [(blood alcohol content)] was
     0.179%.

                                *    *    *

           [At trial, t]he last witness for the Commonwealth was
     Ayako Chan-Hosokawa. Ms. Hosokawa is a forensic toxicologist
     at NMS Labs in Willow Grove. She was admitted as an expert
     witness without objection. After explaining the standard NMS
     blood draw kit, Ms. Hosokawa explained how a person’s BAC is
     determined. Ms. Hosokawa also testified about the procedures
     used to protect samples from contamination.        She further
     explained that the blood is actually tested twice and those
     results have to be within 5% of each other. If those results do
     not match within the 5% window the blood is tested again.
     Using all of the above procedures, Ms. Hosokawa testified that []
     Appellant’s BAC was 0.179%[.]

          Briefly on direct examination, Ms. Hosokawa explained that
     because of the volume of blood samples tested each day at her

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     lab, the samples are run in batches, or groups. On cross-
     examination, Ms. Hosokawa further explained that the lab runs
     300 to 400 blood samples a day on the machine used to test []
     Appellant’s blood. Next, Ms. Hosokawa explained that a batch
     consists of four components: (1) a control containing up to ten
     samples (2) ten real samples submitted to the lab for testing (3)
     another control containing up to ten samples and (4) another ten
     real samples submitted for testing. In a particular batch, if the
     second control sample fails, that entire batch will be retested.
     Although Ms. Hosokawa testified that control samples do not fail
     often, she did state that a control sample failed four times on the
     day [] Appellant’s blood was tested. However, on redirect Ms.
     Hosokawa did explain that the batch containing [] Appellant’s
     sample was not affected by any of the failed control samples.

(Trial Court Opinion, 12/31/14, at 2-4) (record citations and quotation marks

omitted).

     On August 13, 2014, a jury convicted Appellant of DUI (highest rate of

alcohol), second offense, and the trial judge convicted him of DUI (general

impairment) and exceeding maximum speed limits, and immediately ordered

a pre-sentence investigation report.    On September 15, 2014, the court

sentenced Appellant to an aggregate term of not less than fifteen months’

nor more than five years’ partial confinement consisting of seven months’ on

work release followed by eight months’ house arrest. The court also ordered

him to obtain a drug and alcohol evaluation; and attend an alcohol and safe

driving clinic, and a driver improvement school.




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       On September 22, 2014, Appellant filed a post-sentence motion. The

court denied Appellant’s motion on September 25, 2014. Appellant timely

appealed on October 16, 2014.2

       Appellant raises the following question for our review:

       Did the trial court abuse its discretion in finding the verdict was
       not against the weight of the evidence where the machine used
       to run Appellant’s BAC had produced false batches?

(Appellant’s Brief, at 4).3

              Our standard of review is well-settled:

                    The weight given to trial evidence is a choice
              for the factfinder. If the factfinder returns a guilty
              verdict, and if a criminal defendant then files a
              motion for a new trial on the basis that the verdict
              was against the weight of the evidence, a trial court
              is not to grant relief unless the verdict is so contrary
              to the evidence as to shock one’s sense of justice.

                    When a trial court denies a weight-of-the-
              evidence motion, and when an appellant then
              appeals that ruling to this Court, our review is
              limited. It is important to understand we do not
              reach the underlying question of whether the verdict
              was, in fact, against the weight of the evidence. We
              do not decide how we would have ruled on the
              motion and then simply replace our own judgment
              for that of the trial court.     Instead, this Court
              determines whether the trial court abused its
____________________________________________


2
  Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on November 7, 2014. The court entered its Rule 1925(a)
opinion on December 31, 2014. See Pa.R.A.P. 1925.
3
 We note that Appellant withdrew his claim of insufficient evidence. (See
Appellant’s Brief, at 4 n.1).



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            discretion in reaching whatever decision it made on
            the motion, whether or not that decision is the one
            we might have made in the first instance.

                  Moreover, when evaluating a trial court’s
            ruling, we keep in mind that an abuse of discretion is
            not merely an error in judgment. Rather, it involves
            bias,    partiality, prejudice,    ill-will, manifest
            unreasonableness or a misapplication of the law. By
            contrast, a proper exercise of discretion conforms to
            the law and is based on the facts of record.

Commonwealth v. Ferguson, 107 A.3d 206, 212-13 (Pa. Super. 2015)

(citation omitted).

      Here, Appellant argues that “the trial court abused its discretion in

ruling on the weight of the evidence claim by relying on the fact that

Appellant’s batch was not a part of the four failed batches.”         (Appellant’s

Brief, at 10). Specifically, he claims “there is no way to tell if the machine

was working properly considering the high number of failures which occurred

in a single day.” (Id.). We disagree.

      We note that, “the jury is free to believe all, part, or none of the

evidence and to determine the credibility of the witnesses.”           Ferguson,

supra at 213 (citation and internal quotation marks omitted).

      Moreover,   our   independent     review   of   the   record   reflects   that

Appellant’s blood sample was not in any of the four failed batches.             (See

N.T. Trial, 8/13/14, at 106-07). Additionally, there was no evidence that the

machine was flawed rendering invalid results. (See id. at 101-07).




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     Accordingly, we discern no abuse of discretion in the trial court’s

determination that the jury’s verdict did not shock one’s sense of justice.

See Ferguson, supra at 212-13. Therefore, Appellant’s issue lacks merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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