J-S29020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

MARK LEMKE

                            Appellant                  No. 481 EDA 2016


            Appeal from the Judgment of Sentence January 12, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003737-2015

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                               FILED JULY 18, 2017

        Appellant Mark Lemke appeals from the judgment of sentence entered

following his convictions for two counts of driving under the influence of

alcohol (“DUI”).1 We affirm.

        Appellant’s bench trial took place on November 12, 2015. The trial

court recounts the pertinent facts from the trial as follows:

              Philadelphia Police Officer Kyra Davis was on routine patrol
        in a marked vehicle on May 25, 2013 at approximately 2:00 a.m.
        when [s]he saw a vehicle pull out of a parking lot at a high rate
        of speed at or near 11th and Pattison Streets in Philadelphia.
        [Appellant] was the driver seated inside the vehicle. The officer
        indicated that upon stopping the vehicle [s]he smelled a strong
        odor of alcohol, saw [Appellant] with red and glassy eyes, and
        heard slurred, heavy speech. Officer Davis concluded that
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    Appellant was convicted under 75 Pa.C.S. §§ 3802(a)(1) and (c).
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       [Appellant] was intoxicated. Appellant was arrested and
       transported to [the] Police Administration Building (PAB) in
       Philadelphia.

              Police Officer Mark Eib also testified that on May 25, 2013,
       he was assigned to the Police Detention Unit in the basement of
       8th and Race, and it was his duty to administer chemical testing
       to anyone who was arrested for DUI in the City of Philadelphia.
       Officer Eib administered chemical tests to [Appellant] and stated
       that: “During my interaction with him, Your Honor, I believe I
       spent 24 minutes with him by giving him a chemical test. I noted
       an odor of alcohol on his breath, his speech was impaired, his
       eyes [were] watery, and I did note that he was polite.” Officer
       Eib continued[,] “I explained to him why he was there[,] that he
       had been arrested for DUI. . . . He agreed to submit to the test
       and at 3:19 a.m. he did. He did give me a breath sample. He
       also gave me another breath sample at 3:20 a.m. . . . The lower
       -- it was [0.166]. I used Intoxilyzer 8000, serial number [80-
       002191FFF]. The accuracy was done that morning by myself and
       the calibration was done on 5/15/2013.[”] In addition,
       certificates of accuracy were submitted to the Court for the
       breathalyzer.[2]

            Counsel for [Appellant] questioned the officer regarding
       the manual set time for tests:

          Q. And do you recall at the previous trial that you
          acknowledged that you weren’t sure from the Intoxilyzer
          8000 and there was a required wait period in the manual
          between tests?

          A. In the manual I’m not sure about. I’m familiar with Title
          67 which is there is no required wait time between tests.

       On redirect examination, the Assistant        District   [Attorney]
       followed up with the same issue:

____________________________________________
2
  The certificates were admitted into evidence as Commonwealth’s Ex. Nos.
3 and 4. Appellant made no objection to the introduction of the calibration
and accuracy certificates into evidence, or to the officer’s testimony about
the results of the tests.



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          Q. And while the manual says that it has a wait period of
          up to two minutes or whatever it says in the manual, [3] on
          your dailies of the instrument you don’t have to wait that
          long?

          A. I don’t.

          Q. When you did the accuracy test, did you wait that long?

          A. No.

          Q. When you did the testing, did you wait that long?

          A. No.

          Q. Would the instrument inform you that there’s any error
          in the reading?

          A. It will.

          Q. Did you ever get informed of any errors by the
          instrument on this night?

          A. I did not.

          Q. The time interval between test one and test two for this
          defendant, how long was it?

          A. I believe it was one minute.

          Q. And of the first test or the second test, which was the
          actual – what was the lower of the two values?

          A. The second test was the lower.




____________________________________________
3
  The instruction manual for the Intoxilyzer 8000 was not entered into
evidence, but shown to Officer Eib on cross-examination. The officer testified
that the manual states there is to be a two-minute wait period between
tests.



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Trial Ct. Op., 6/3/16, at 1-4 (citations to trial testimony omitted, some

formatting altered).

        At the conclusion of the trial, Appellant was found guilty one count of

Driving Under the Influence – General Impairment (“DUI – General

Impairment”) and one count of Driving Under the Influence – Highest Rate

of Alcohol (“DUI - Highest Rate”).4 He was sentenced on January 12, 2016,

to seventy-two hours to six months of incarceration for each charge, to be

served consecutively. Appellant filed no post-sentence motions, but filed this

timely appeal, posing the following issue for our review:

        Whether the evidence presented was insufficient to sustain the
        conviction for driving under the influence (75 Pa.C.S. §
        3802[(c)5] where the Commonwealth failed to prove that the
____________________________________________
4
    75 Pa.C.S. §§ 3802(a)(1) and (c), respectively. Section 3802(c) states:

        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. § 3802(c).
5
  In his statement of issues presented in his appellate brief, Appellant raises
this issue twice, each time citing to 75 Pa.C.S. § 3802(a)(1), the statute
prohibiting DUI – General Impairment. In a footnote, he states, “Because
both questions presented are the same, they will be addressed in a single
argument by Appellant.” Appellant’s Brief at 1 at n.1. However, Appellant’s
argument does not address DUI – General Impairment under 75 Pa.C.S. §
3802(a)(1); it relates only to his conviction for DUI – Highest Rate under 75
Pa.C.S. § 3802(c). In fact, Appellant repeatedly concedes that the evidence
was sufficient for a conviction of DUI – General Impairment. See Appellant’s
Brief at 8-11. We therefore address the argument made by Appellant related
(Footnote Continued Next Page)

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      breathalyzer samples were accurate based on a failure to wait
      two (2) minutes between administering each test and that the
      breathalyzer machine was in proper working order?

Appellant’s Brief at 4 (capitalization omitted).

      Our standard of review is as follows:

            A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.

      As a reviewing court, we many not weigh the evidence or
      substitute our judgment for that of the fact-finder, who is free to
      believe all, part, or none of the evidence.

Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa. Super. 2017)

(formatting altered; citations and ellipses omitted).

      The trial court held that there was sufficient evidence to establish

Appellant’s conviction for the following reasons:

            [A]ppellant failed to establish that the breathalyzer was
      defective in any manner whatsoever and that the time interval
      between test One and test Two of samples was unacceptable in
      terms of time limitations. To the contrary, all systems were
      functioning properly, and there is no required wait time between
      tests administered by the operator. Notwithstanding what a
      particular manual states, the Statutes of the Commonwealth of
      Pennsylvania are controlling.
                       _______________________
(Footnote Continued)
to the sufficiency of the evidence for his conviction of DUI – Highest Rate,
rather than DUI – General Impairment. We note that Appellant’s citation
error does not appear to have affected the analysis presented by the trial
court in its Rule 1925(a) opinion.


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             Consequently, there is no substantial evidence to support
      [A]ppellant’s contention that the evidence presented at trial was
      insufficient to sustain his conviction . . . . Moreover, [A]ppellant
      failed to present evidence from a qualified witness to establish
      that the failure to wait for two minutes affects the ability to
      supply adequate breath samples.

Trial Ct. Op. at 5-6.

      Appellant argues that the evidence was insufficient “as the breath test

results should not have been admitted or if admitted lacked sufficient

reliability to be considered by the trial court as competent evidence.”

Appellant’s Brief at 9. Appellant complains that the results of the breath test

were not reliable —

      based on the fact that the two (2) tests were taken within a
      minute of each other. The manual for the testing machine
      delineates an amount of time of two (2) minutes or more
      between tests so that the machine can provide accurate
      readings. Officer Eib did not follow the specific instructions for
      proper use of the breath machine and therefore the results from
      the test should have been deemed unreliable and should not
      have been considered by the fact-finder.

Appellant’s Brief at 11. The Commonwealth counters that, as Appellant’s

argument addresses the reliability of the results, Appellant’s argument “is

inapposite in the context of sufficiency review, in which this Court accepts

the reliability and veracity of all evidence that supports the verdict.”

Commonwealth’s Brief at 6-7 (citing Commonwealth v. Bristow, 538 A.2d

1343, 1345-46 (Pa. Super. 1988)). Furthermore, it asserts that Appellant

waived the issue of the admissibility of the evidence by “his failure to

object.” Id. at 7 n.1.

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        We agree with the Commonwealth that Appellant’s argument does not

directly challenge the sufficiency of the evidence, but rather addresses the

admissibility of the results of the breathalyzer test and the weight to be

accorded to it. In addition to the Rules of Evidence, the admissibility of

breathalyzer evidence in a DUI proceeding is governed by the Vehicle Code,

75 Pa.C.S. § 15476 and an implementing regulation, 67 Pa. Code § 77.24,7

____________________________________________
6
    The relevant portion of the statute states:

        (c) Test results admissible in evidence.—In any summary
        proceeding or criminal proceeding in which the defendant is
        charged with a violation of section 3802 or any other violation of
        this title arising out of the same action, the amount of alcohol or
        controlled substance in the defendant's blood, as shown by
        chemical testing of the person's breath or blood, which tests
        were conducted by qualified persons using approved equipment,
        shall be admissible in evidence.

              (1) Chemical tests of breath shall be performed on devices
              approved by the Department of Health using procedures
              prescribed jointly by regulations of the Departments of
              Health and Transportation. Devices shall have been
              calibrated and tested for accuracy within a period of time
              and in a manner specified by regulations of the
              Departments of Health and Transportation. For purposes of
              breath testing, a qualified person means a person who has
              fulfilled the training requirement in the use of the
              equipment in a training program approved by the
              Departments of Health and Transportation. A certificate or
              log showing that a device was calibrated and tested for
              accuracy and that the device was accurate shall be
              presumptive evidence of those facts in every proceeding in
              which a violation of this title is charged.

75 Pa.C.S. § 1547(c)(1).
7
    The regulation states:

(Footnote Continued Next Page)

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which together outline the procedures and standards for administering a

breathalyzer test. See Commonwealth v. Snell, 811 A.2d 581, 585-87

(Pa. Super. 2002), appeal denied, 820 A.2d 162 (Pa. 2003); see also

Commonwealth v. McGinnis, 515 A.2d 847, 850 (Pa. 1986) (holding

results of breathalyzer test inadmissible when not in compliance with Section

1547); Commonwealth v. Barlow, 776 A.2d 273, 275 (Pa. Super. 2001)

(tests not administered in compliance with Section 77.24 go to the

trustworthiness of the evidence, and “failure to comply does not permit the

results to be admitted as substantive evidence with lessened reliability[;] it

precludes admission”). In order for breathalyzer evidence to be admissible,

                       _______________________
(Footnote Continued)
      (b) Procedures. Alcohol breath tests shall be conducted by a
      certified breath test operator. Accuracy inspection tests and
      calibrations conducted using breath test equipment shall be
      performed by a certified breath test operator, the manufacturer
      or its authorized representative or a person who has received
      comparable training or instruction. Alcohol breath tests, accuracy
      inspection tests and calibrations conducted using breath test
      equipment shall be performed in accordance with accepted
      standard procedures for operation specified by the manufacturer
      of the equipment or comparable procedures. The procedures for
      alcohol breath testing shall include, at a minimum:

             (1) Two consecutive actual breath tests, without a required
             waiting period between the two tests.

             (2) One simulator test using a simulator solution designed
             to give a reading of .10%, to be conducted immediately
             after the second actual alcohol breath test has been
             completed. The lower of the two actual breath test results
             will be the result used for prosecution. . . .

67 Pa. Code § 77.24(b).


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the Commonwealth must show by a preponderance of the evidence that the

regulations were followed. Barlow, 776 A.2d at 275 n.2.

        We conclude, however, that Appellant has waived any claim related to

the breathalyzer test evidence. Appellant did not move to exclude the

breathalyzer evidence prior to trial. Nor did Appellant object to its

consideration by the trial court once trial testimony suggested that the

waiting period between the tests administered to Appellant may have

affected the competency and admissibility of the breathalyzer evidence. 8

Because Appellant did not object, this issue is waived. See Pa.R.A.P. § 302

(claims not raised before the trial court may not be raised for the first time

on appeal).




____________________________________________
8
    In his closing statement, Appellant’s counsel argued:

              Officer Eib testified that the manual requires two minutes
        between samples. And I’m well aware of the statute that
        required—that has no waiting period. By this officer’s own
        testimony we can deem the results of the Intoxilyzer unreliable.

              . . . If the machine does not operate according to protocol,
        I respectfully submit that the results are invalid. So I request
        that the reading be disregarded, suppressed, dismissed on that
        regard.

N.T., 11/12/15, at 33-34. This was closing argument, not a hearing on a
motion in limine, see Pa.R.Crim.P. 578, cmt., a motion to suppress illegally
obtained evidence, see Pa.R.Crim.P. 581, or a motion for dismissal based on
double jeopardy or a lack of notice, see Pa.R.Crim.P. 587. We therefore
decline to construe Appellant’s closing argument about the test’s unreliability
as a timely challenge to the admissibility of the breathalyzer evidence.


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       Considering the results of the test as admissible, then, as we must,

the Commonwealth’s evidence, including the results of the breathalyzer test,

taken in the light most favorable to the Commonwealth as the verdict winner

and in conjunction with all reasonable inferences, is sufficient to establish

beyond a reasonable doubt the material elements for Appellant’s conviction

of DUI – Highest Rate. The results revealed that Appellant had a BAC of

.166, above the .16 threshold for DUI – Highest Rate. 75 Pa.C.S. § 3802(c).

We therefore affirm Appellant’s judgment of sentence.

       To the extent that Appellant’s argument could be construed as a

weight claim9 — notwithstanding his explicit framing of his issue as a

challenge to the sufficiency of evidence — it too is waived. A challenge to the

weight of the evidence must be preserved for appellate review by first

raising it with the trial court in a motion for a new trial. See Pa.R.Crim.P.

607(A). Failure to properly preserve a weight of the evidence claim will

result in waiver, even if the trial court addresses the issue in an opinion. See

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009), cert.

denied, 559 U.S. 1111 (2010). As Appellant failed both to frame his issue

____________________________________________
9
  See Commonwealth v. Speights, 509 A.2d 1263, 1267 (Pa. Super.
1986) (holding that breathalyzer test results, when admissible per statute,
constitute sufficient evidence of DUI; but stating that “At trial, the results of
a test, as indicative of blood alcohol content at a relevant point in time, may
be attacked or contradicted by any competent evidence. The weight to be
accorded test results then properly rests with the finder of fact” (citation
omitted and brackets)), appeal denied, 535 A.2d 83 (Pa. 1987).



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as a weight claim and to raise it before the trial court, he has not established

entitlement to relief. For these reasons, we affirm the judgment of sentence

below.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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