J-A02025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MICHAEL LLOYD                              :
                                               :
                      Appellant                :   No. 1395 EDA 2016

           Appeal from the Judgment of Sentence December 29, 2015
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001138-2015


BEFORE:      OTT, RANSOM, and FITZGERALD*

MEMORANDUM BY RANSOM, J.:                                FILED MARCH 20, 2017

        Appellant appeals from the judgment of sentence of seventy-two hours

to six months incarceration and a fine of $25.00, imposed December 29,

2015, following a bench trial resulting in his conviction for driving under the

influence (DUI) - general impairment, DUI - highest rate of alcohol, and

careless driving.1 We affirm.

        The relevant facts and procedural history are as follows. On March 31,

2015, Officer Keith Eichler was dispatched to investigate a 911 call that an

unidentified male was screaming on State Route 611 in Tobyhanna,

Pennsylvania.       See Notes of Testimony (N.T.), 10/20/2015, at 5.     Upon

arrival, Officer Eichler observed a black, Dodge pick-up truck off the road


____________________________________________


1
    75 Pa.C.S. § 3802(a)(1), § 3802(c), § 3714(a).



* Former Justice specially assigned to the Superior Court.
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parked at an angle in a ten-foot ditch.   See N.T. at 5-6.   Officer Eichler

found Appellant standing nearby alongside the roadway. Id. Officer Eichler

asked Appellant if he was driving, and Appellant told him no.     Id. at 6.

Initially, Appellant told him that a woman he met at a bar had been driving

but that she ran off. Id. Appellant could not remember the woman’s name.

Id. The Officer suggested that he would retrieve surveillance from the bar

to see if Appellant left with somebody.   Id. at 8.   Thereafter, Appellant

acknowledged that he was the one driving the truck. Id.

     During this conversation, Officer Eichler observed that Appellant had

red glossy eyes and had a strong odor of alcohol coming from his person.

Id. at 7.   He asked for Appellant’s identification and watched Appellant

stumble a few times while trying to get the identification out of his glove

compartment. Id. Officer Eichler conducted sobriety tests. Id. at 9. The

Officer asked Appellant to do the Walk-and-Turn test, but he just stood

there. See id. Appellant did not want to take any more tests and said to

the Officer, “I’m done and I’m drunk.” Id. Appellant was placed in custody

for DUI and taken to the DUI Center for a blood test. See id. at 17. Later

that evening, at 12:52 a.m., Appellant submitted a blood sample, and the

results revealed that his blood alcohol content was 0.23%. See id. at 19,

Commonwealth’s Exhibit 2.




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       Following a non-jury trial in October 2015, the court found Appellant

guilty of the DUI-related charges and careless driving.      See id. at 71-72;

see also Order, 10/21/2015.2 Appellant was sentenced as described above

on December 29, 2015. Appellant timely filed a post-sentence motion for a

new trial based on the weight of the evidence. See Post-Sentence Motion,

1/6/2016. Following additional briefing, the court denied Appellant’s post-

sentence motion and issued an opinion.           See Trial Ct. Op. and Order,

4/7/2016.

       Appellant timely filed a notice of appeal.     The court did not order

Appellant to file a Pa.R.A.P. 1925(b) statement.

       On appeal, Appellant presents the following issues:

       a.   Has the Commonwealth produced sufficient evidence that
       [Appellant] was driving after imbibing with a blood alcohol
       percentage greater than .16 within two hours of operation
       where [Appellant] is found on the roadside near a vehicle and
       there is insufficient evidence of a time frame for the blood draw?

       b.   Does it shock the conscience where [Appellant] was
       convicted of driving after imbibing with a blood alcohol
       percentage greater than .16 within two hours of operation when
       the weight of the evidence is against finding of a two-hour time
       frame for the blood draw?

Appellant’s Br. at 6.

       In his first issue, Appellant challenges the sufficiency of the evidence

to convict him of violating 75 Pa.C.S. § 3802(c). According to Appellant, the
____________________________________________


2
 The court found Appellant not guilty of disregarding a traffic lane. See 75
Pa.C.S. § 3309(1).



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Commonwealth failed to establish that his blood sample was procured within

two hours of operating the vehicle. See Appellant's Br. at 11-14.

      When examining a challenge to the sufficiency of the evidence, our

standard of review is as follows:

      [W]hether there was sufficient evidentiary support for a jury's
      finding to this effect, the reviewing court inquires whether the
      proofs, considered in the light most favorable to the
      Commonwealth as verdict winner, are sufficient to enable a
      reasonable jury to find every element of the crime beyond a
      reasonable doubt. The court bears in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court's rulings thereon were correct; and the trier of
      fact, while passing upon the credibility of witnesses and the
      weight of the evidence, is free to believe all, part, or none of the
      evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

      The offense of DUI - highest rate of alcohol is defined as follows:

      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).      To establish the elements of this offense, the

Commonwealth must offer proof that the accused’s blood alcohol content

was 0.16% or higher within two hours of operation of the vehicle.            See

Commonwealth v. Segida, 985 A.2d 871, 874 (Pa. 2009).




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       The necessity for the two hour time limit in subsections
       3802(a)(2), (b), and (c) is grounded in the practical impossibility
       either of measuring blood alcohol level precisely at the time of
       driving or of calculating the exact blood alcohol level at the time
       of driving from a single blood alcohol measurement taken at
       some point in time after driving.

Segida, 985 A.2d at 879 (citing Commonwealth v. Duda, 923 A.2d 1138,

1141 (Pa. 2007)).

       In support of his sufficiency of the evidence challenge, Appellant

maintains that the Commonwealth failed to establish a connection between

the time of the blood draw and the time that Appellant last operated his

vehicle. See Appellant's Br. at 11-13.3 His assertion is without merit. The

Commonwealth presented a video in which Appellant stated that he left the

bar around midnight. See N.T. at 20. The 911 call was received at 11:53

p.m.    See id.     Officer Eichler arrived around 12:30 a.m.    See id. at 5.

Appellant admitted to Officer Eichler that he had been driving the vehicle.

Id. at 20.     Appellant’s blood was drawn at the DUI center at 12:52 a.m.

See id. at 22.      Appellant’s blood alcohol content “was indisputably 0.23%

when it was drawn at 12:52 a.m.” Trial Ct. Op., 4/7/2017, at 2.

____________________________________________


3
  In support of his argument, Appellant cites Commonwealth v. Segida,
912 A.2d 841 (Pa. Super. 2006), appeal granted on separate issue and
reversed on other grounds, 985 A.2d 871, 881 (Pa. 2009)). In that case,
this Court recognized and the Commonwealth conceded that failure to prove
the time when the defendant’s blood was drawn at the hospital rendered the
defendant’s charge under 75 Pa.C.S. 7802(c) defective for failing to establish
the requisite temporal connection to the DUI. Segiga, 912 A.2d at 847-850
(noting that Commonwealth had not precluded the possibility that the
defendant injested alcohol after the accident had occurred).



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      Viewed in the light most favorable to the Commonwealth, this

evidence was sufficient to establish that the blood test occurred within two

hours of Appellant’s departure from the Brookside Inn and operation of his

vehicle. No relief is due on this ground.

      In his second issue, Appellant contends that the verdict was against

the weight of the evidence. This claim, too, is without merit.

      Our standard of review is well-settled.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the [fact-finder] is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses, and a
      new trial based on a weight of the evidence claim is only
      warranted where the [factfinder's] verdict is so contrary to the
      evidence that it shocks one's sense of justice. In determining
      whether this standard has been met, appellate review is limited
      to whether the trial judge's discretion was properly exercised,
      and relief will only be granted where the facts and inferences of
      record disclose a palpable abuse of discretion.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (quoting

Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation

omitted), appeal denied, 65 A.3d 413 (Pa. 2013)).

      Appellant reiterates his previous claim that the Commonwealth did not

offer evidence to prove when Appellant had last driven the vehicle in relation

to the 911 call or Officer Eichler’s arrival at the scene. At trial, Appellant and

his girlfriend testified that the girlfriend was driving the car that night. See

N.T. at 23-53. According to Appellant’s version of the events, his girlfriend


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drove the truck into a ditch, and he was waiting in the cold for over an hour

for her to bring a tow truck. See Appellant's Br. at 15. Appellant asserts

that the Commonwealth should have established the age of tire tracks in the

snow to demonstrate when his last operation of the truck was. Id. at 16.

Thus, Appellant claims, it was “pure speculation” for the court to conclude

that the blood test was taken within two hours of his last operation of the

vehicle. Id.

      On a video shown at trial, Appellant stated that he left the bar at

approximately midnight. See N.T. at 20. The truck was found less than one

mile from the bar where Appellant was drinking.      See N.T. at 41. Officer

Eichler responded to the 911 call sometime between midnight and 12:30

a.m., and Appellant’s blood was well over the limit for DUI - highest rate of

alcohol at 12:52 a.m. See Trial Ct. Op., 4/7/2017, at 3. According to the

court, Officer Eichler testified credibly that Appellant acknowledged he was

driving his truck that evening.      Thus, the court did not believe that

Appellant’s girlfriend drove the truck into the ditch.   See id. at 3-4.   The

court also believed Officer Eichler’s testimony that there were no visible tire

tracks and that the weight of the evidence established that Appellant was

not standing on the road for over an hour. See id. Thus, the court found

Appellant’s version of the events “simply not credible.” N.T. at 71.

      It was the function of the judge as fact-finder to evaluate the

credibility of the witnesses and determine the weight to accord their

testimony. As discussed above, the timing of the blood draw was not pure

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speculation, rather it was proved by the Commonwealth through testimony,

circumstantial evidence, and video.    Accordingly, we discern no palpable

abuse of discretion.

     Judgement of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




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