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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :    IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA

                 v.


    SHAWN L. DODGE

                             Appellant             :    No. 1775 MDA 2017

           Appeal from the Judgment of Sentence September 13, 2017
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000283-2015


BEFORE:      PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                  FILED JANUARY 07, 2019

         Shawn   L.       Dodge appeals from the judgment of sentence entered in the

Franklin County Court of Common Pleas following her conviction of Driving

Under the Influence ("DUI") -General Impairment.' Dodge challenges both the

sufficiency and the weight of the evidence underlying her conviction. We

affirm.

         On November 13, 2014, Corporal Benjamin Frantz, a Pennsylvania State

Police    trooper,         was   patrolling   Antrim   Township   in   Franklin   County,

Pennsylvania. At approximately 11:00 p.m., Corporal Franz observed                a   black

SUV driving        erratically.     Specifically, Corporal Frantz noted the vehicle

"weaving within its lane, it would cross over the north fog line onto the berm,

it would cross back over the lane, cross the double -yellow line into the



'   75 Pa.C.S.A.      §   3802(a)(1).
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oncoming traffic lane several times." N.T., Bench Trial, 7/14/17, at 6-7. While

it was dark with the occasional flurry, Corporal Frantz testified that the

roadway was properly marked and painted, with very slight curves, and clear

of any snow.

        Based upon this observation, Corporal Frantz activated his dashboard

camera and his overhead lights. The SUV took            a   "considerable amount of time

[to stop]," but eventually pulled over to the side of the road. Id., at 8. As

Corporal Frantz approached the vehicle, he noted "a strong odor of alcoholic

beverage emanating from inside the vehicle" and that the driver, later

identified as Dodge, had glassy and bloodshot eyes. See id., at 9-10. While

Dodge initially denied consuming any alcohol, she eventually admitted to

Corporal Frantz that she had         a   few drinks earlier in the evening. Additionally,

while Dodge's speech was overall "fair," Corporal Frantz did notice "some

slurring." Id., at 11.

        Corporal Frantz instructed Dodge to exit the vehicle and perform field

sobriety tests. Dodge first performed the "walk and turn test," which left

Corporal Frantz with 6 out of 8 indicators that Dodge was incapable of safely

operating   a   motor vehicle. See id., at 17. Next, Dodge performed the "one -

leg   stand," which provided     3   out of 4 indicators of impairment and incapability

of safety operating      a   motor vehicle. See id. Based upon the totality of the

circumstances, Corporal Frantz determined Dodge was incapable of safely

driving due to her consumption of alcohol and placed Dodge under arrest.



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        Dodge proceeded to        a   bench trial on the charges arising from this

incident. The Commonwealth presented Corporal Frantz's testimony and the

dashboard video from the traffic stop. Dodge did not testify on her own behalf.

At the conclusion of trial, the court found Dodge guilty of DUI -general

impairment. The court sentenced Dodge to              5   days to 6 months' imprisonment,

50 hours of community service, and              a   12 -month suspension of her driver's

license. Dodge filed     a   post -sentence motion challenging both the sufficiency

and weight of the evidence. This timely appeal followed the trial court's denial

of Dodge's motion.

        On appeal, Dodge raises the following questions            for our review:

        1.   Whether there was insufficient evidence to support the trial
             court's finding of guilt as to DUI: General impairment, because
             the Commonwealth failed to present sufficient evidence that
             Dodge was incapable of safely operating an automobile
             because of alcohol consumption.

        2. Whether the     trial court's verdict of guilt as to DUI: General
             Impairment was against the weight of the evidence whether
             the trooper was unable to link any observations of impaired
             driving to Dodge and the Commonwealth's evidence did not
             establish that Dodge's mental and physical faculties were
             impaired such that she could not operate a motor vehicle.
Appellant's Brief, at   1.

        Dodge first challenges the sufficiency of the evidence underlying her

DUI -General Impairment conviction. 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


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element of the crimes charged       is   established beyond   a   reasonable doubt. See

Commonwealth v. Dale, 836 A.2d 150, 152               (Pa. Super. 2003).

        To support a conviction under § 3802(a)(1), the prosecution must prove

"the accused was driving, operating, or           in actual physical control of the

movement of      a   vehicle during the time when he or she was rendered incapable

of safely doing so due to the consumption of alcohol." Commonwealth v.

Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (citation omitted)

        Dodge concedes that she was driving, operating, or in actual physical

control of the movement of          a    vehicle. However, she contends that the

evidence was insufficient to establish that she was incapable of safely driving

due to the consumption of alcohol.

        Our Supreme Court, in Commonwealth v. Segida, 985 A.2d 871 (Pa.

2009), described the types of evidence that the Commonwealth may offer to

prove this element:

        Section 3802(a)(1), like its predecessor [statute], is a general
        provision and provides no specific restraint upon the
        Commonwealth in the manner in which it may prove that an
        accused operated a vehicle under the influence of alcohol to a
        degree which rendered him incapable of safe driving.... The types
        of evidence that the Commonwealth may proffer in a subsection
        3802(a)(1) 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....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

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        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.
        In her brief, Dodge argues that she was not driving erratically, but

simply "straddle[d] or cross[ed]         a   travel lane    ...   in a   momentary and minor

manner    ...   when no other motorists were at risk." Appellant's Brief, at 15.

Further, Dodge argues that her slurred speech, glassy and bloodshot eyes,

and failure to perform well on the "walk and               turn" and "one -leg stand" test
were not conclusive to alcohol impairment. However, despite Dodge's attempt

to portray the evidence in      a   light favorable to her defense, the relevant inquiry

in   conducting   a   sufficiency analysis requires that we view the evidence in the

light most favorable to the verdict winner, which in this case                               is   the

Commonwealth.

        When viewed in the proper light, we find the evidence presented at trial

was more than sufficient to enable the factfinder to conclude that Dodge was

incapable of safely driving her vehicle due to the consumption of alcohol.

Corporal Frantz observed Dodge driving erratically and conducted                         a   traffic

stop. During the stop, Corporal Frantz smelled the odor of alcohol in Dodge's

vehicle, noted her slurred speech and glassy eyes, and asked Dodge to step

out of the vehicle to perform field sobriety tests. Dodge exhibited 9 out of 12

signs of impairment and inability to safety operate                      a   motor vehicle during

those field sobriety tests. As set forth in Segida, all of this evidence was

properly offered in support of the conclusion that Dodge was incapable of

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safely driving due to the consumption of alcohol. Therefore, we find that there

was sufficient evidence for the trial court to reach this conclusion, and find no

merit in Dodge's sufficiency claim.

        Next, Dodge contends that her conviction should be vacated because

the trial court failed to properly weigh the evidence presented by the

Commonwealth. We do not review challenges to the weight of the evidence

de novo on appeal. See     Commonwealth v. Rivera, 983 A.2d 1211, 1225
(Pa. 2009). Rather, we only review the trial court's exercise of its discretionary

judgment regarding the weight of the evidence presented at trial. See id.
        "[W]e may only reverse the lower court's verdict if it   is so   contrary to

the evidence as to shock one's sense of justice." Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).              A   verdict   is

said to be contrary to the evidence such that it shocks one's sense of justice

when "the figure of Justice totters on her pedestal," or when "the jury's

verdict, at the time of its rendition, causes the trial judge to lose his breath,

temporarily, and causes him to almost fall from the bench, then it             is   truly
shocking to the judicial conscience." Commonwealth v. Davidson, 860 A.2d

575, 581 (Pa. Super. 2004) (citations omitted).

        In advancing her weight challenge, Dodge claims that the evidence

offered that she "was incapable of safe driving was based on mere subjective

factors that do not scientifically correlate to levels of impairment." Appellant's

Brief, at 22. As such, Dodge contends that the Commonwealth failed to

present any credible evidence correlating Dodge's level of her impairment to

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her inability to drive. Because she was convicted without this necessary

correlation, Dodge contends the verdict was against the weight of the

evidence.

        After reviewing Dodge's claim, the trial court concluded that Dodge's

argument was "without merit." Trial Court Rule 1925(a) Opinion, 12/14/17,

at 17. In fact, the trial court concluded that Dodge's position was "quite

contrary" to the totality of the evidence as "performance on field sobriety

testing, odor of alcohol, slurred speech        ...   appearance including blood-

shot/glassy eyes, etc., are all relevant and probative pieces of evidence in

determining whether the defendant was incapable, at the time they were

driving, of operating   a   motor vehicle safely due to consumption of alcohol."

See id. As such, the trial court concluded that the verdict did not shock its

sense of justice. See id. Our review of the record does not demonstrate the

court abused its discretion in concluding that its verdict was reasonable.

Therefore, Dodge's final issue on appeal merits no relief.

        Judgment of sentence affirmed.



Judgment Entered.




J seph D. Seletyn,
Prothonotary
Date: 1/7/2019




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