J-A20003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA



                    v.

MICHAEL JACOB RUMBLE

                         Appellant                  No. 1421 WDA 2015


          Appeal from the Judgment of Sentence August 19, 2015
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0001299-2014


BEFORE: BOWES, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 06, 2016

      Michael Jacob Rumble appeals from the judgment of sentence imposed

following his convictions for driving under the influence. We affirm.

      The trial court’s Pa.R.A.P. 1925(a) opinion aptly sets forth the facts

established by the Commonwealth.

      On April 13, 2014, Sergeant Pocsatko of the Southwest Regional
      Police Department was monitoring traffic in Point Marion, Fayette
      County, Pennsylvania. At approximately 2:30 in the morning,
      Sergeant Pocsatko observed a white Chevy Silverado, driven by
      Appellant, approach a stop sign at the end of the Greene County
      bridge. Appellant made his way to the stop sign, failed to stop,
      and made a right turn onto Main Street without using his turn
      signal. Appellant then made it to another stop sign; again he
      failed to stop, made a left turn, and did not use his turn signal.
      While the actual physical movements of the turn were proper,
      Sergeant Pocsatko observed Appellant's traffic violations. At
      that point, he initiated a traffic stop on Morgantown Street.
      Appellant used his turn signal, pulled over promptly, and parked
      parallel to the curb.
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     Sergeant Pocsatko approached the vehicle and noticed Appellant
     in the driver's seat along with a passenger sitting in the front
     seat of the car. Appellant already had his documents ready and
     handed them to Sergeant Pocsatko. Sergeant Pocsatko detected
     Appellant had a severe odor of alcohol and red glassy bloodshot
     eyes. He asked Appellant if he had been drinking and Appellant
     admitted to having a few beers. Sergeant Pocsatko also noticed
     an open case of Bud Light beer on the floor of the front
     passenger side containing some cans in it and an open can of
     Bud Light beer between the passenger's legs.

     Appellant was asked to exit the vehicle to perform several field
     sobriety tests (FST). Appellant exited the vehicle without any
     trouble. Prior to starting the FST, Sergeant Pocsatko asked
     Appellant if he had any medical conditions or injuries that might
     prevent him from performing the tests, which Appellant
     answered in the negative. Appellant first performed the nine
     step walk and turn test after Sergeant Pocsatko explained and
     demonstrated the test to Appellant.

     Sergeant Pocsatko determined Appellant failed this test by not
     walking heel to toe, he was off balanced, and he went past nine.
     Appellant then performed the one leg stand test. Sergeant
     Pocsatko again determined Appellant failed this test as he
     extended his arms to remain balanced, did not raise his heel six
     inches off the ground, and dropped his heel on a number of
     occasions.   Based on his training and experience, Sergeant
     Pocsatko determined Appellant was incapable of safely operating
     a motor vehicle.

     Appellant was escorted to Uniontown Hospital and at
     approximately 3:55 a.m., Billy Jo Cable, the phlebotomist on
     shift, drew his blood. Ms. Cable sealed the vials containing the
     blood and gave the blood kit to Sergeant Pocsatko. Sergeant
     Pocsatko secured the blood kit in a locked refrigerator at the
     Belle Vernon Station.      Steven Schwartz, a Lieutenant of
     Investigations with the Southwest Regional Police Department,
     handled the evidence once Sergeant Pocsatko secured it in the
     refrigerator. Three days later, on April 16, 2014, Lieutenant
     Schwartz transported the blood kit from the Belle Vernon Station
     to the Greensburg Crime Lab for testing.




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      The blood kit was received at the Greensburg Crime Lab and
      tested by Robert Elsavage. Mr. Elsavage tested the blood using
      a gas chromatograph. He concluded, within a reasonable degree
      of   scientific certainty,  that   Appellant's    blood alcohol
      concentration (BAC) was 0.223 percent plus or minus .010
      percent and that the analysis was done in accordance with the
      ASCLD Lab International accreditations and policies.
      ....

      Appellant offered his own expert, Janine S. Arvizu, who testified
      at trial. Ms. Arvizu was recognized as an expert in the field of
      analytical chemistry, lab quality control, quality care auditor, and
      BAC testing.      Ms. Arvizu testified that Ms. Cable erred in
      disinfecting the area where Appellant's blood was drawn and
      erred when inverting the blood once it entered the vial. Ms.
      Arvizu also testified that the transportation of the blood from the
      Southwest Regional Police - Department to the Greensburg
      Crime Lab in an unrefrigerated condition may have compromised
      the integrity of the blood sample. Finally, Ms. Arvizu testified
      that Mr. Elsavage made several errors and did not take
      corrective actions. Specifically, Ms. Arvizu testified that Mr.
      Elsavage's testing did not comply with his validated
      methodology, some of the quality control samples used were not
      purchased from an accredited source, and Mr. Elsavage failed to
      use the same pipette when analyzing Appellant's blood. Ms.
      Arvizu thus concluded, within a reasonable degree of scientific
      certainty, that the data provided by the Commonwealth did not
      prove valid test results. At no time however did Ms. Arvizu offer
      an opinion on how or to what extent these alleged errors
      impacted the BAC results obtained by Mr. Elsavage.

Trial Court Opinion, 11/19/15, at 2-6 (footnotes and citations to transcript

omitted).

      For these crimes, Appellant was charged with two counts of driving

under the influence and two summary traffic offenses. Appellant proceeded

to a trial by jury, which returned guilty verdicts at all counts. On August 19,

2015, the trial court imposed a sentence of four to twenty-three months



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incarceration.     Appellant timely appealed, the trial court and Appellant

complied with Pa.R.A.P. 1925(b), and the matter is now ready for review.

Appellant sets forth two issues for our consideration.

       1) Whether the Court was correct in denying Trial Counsel's
       Motion in Limine to preclude testimony that the Appellant's
       passenger had a partially opened case of beer in the passenger
       side of Appellant's vehicle and that the passenger was holding an
       open beer can.

       2) Whether the trial evidence was sufficient to meet the criteria
       to convict the Appellant on all counts.

Appellant’s brief at 8.

       We elect to address the sufficiency claim first, as a successful

challenge on those grounds warrants discharge rather than a retrial. 1

Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super. 2011). Our standard

of review is well-settled.

       In reviewing the sufficiency of the evidence, we must determine
       whether the evidence admitted at trial, and all reasonable
       inferences drawn from that evidence, when viewed in the light
       most favorable to the Commonwealth as verdict winner, was
       sufficient to enable the fact finder to conclude that the
       Commonwealth established all of the elements of the offense
       beyond a reasonable doubt. The Commonwealth may sustain its
____________________________________________


1
   While Appellant’s statement of questions challenges all verdicts, the brief
confines its argument to the general impairment verdict. Accordingly, we
address only that conviction. Commonwealth v. B.D.G., 959 A.2d 362,
371 (Pa.Super. 2008) (“In an appellate brief, parties must provide an
argument as to each question, which should include a discussion and citation
of pertinent authorities. This Court is neither obliged, nor even particularly
equipped, to develop an argument for a party.”) (citations omitted).




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      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Woodard, 129 A.3d 480, 489–90 (Pa. 2015) (citations

omitted).    “Whether sufficient evidence exists to support the verdict is a

question of law; our standard of review is de novo and our scope of review is

plenary.”     Commonwealth v. Tejada, 107 A.3d 788, 722 (Pa.Super.

2015).      To sustain a conviction for a general impairment charge, the

Commonwealth must establish that “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. Segida, 985 A.2d 871, 879 (Pa. 2009).

      The trial court deemed this issue waived, as Appellant’s concise

statement simply stated “[Appellant] argues that the trial evidence did not

meet the standards for sufficiency to convict [Appellant].”             Concise

Statement, 10/8/15, at unnumbered 3. See Trial Court Opinion, 11/19/15,

at 9 (citing Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super.

2013) in support of waiver).

      As we stated in Garland, to preserve a challenge to the sufficiency of

the evidence on appeal the concise statement “must state with specificity

the element or elements upon which the appellant alleges that the evidence

was insufficient.”   Id. at 344.   Appellant’s boilerplate statement did not




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specify any particular charges, let alone the elements at issue. Therefore,

we could easily find that the issue is waived.

         However, since the claim presents a question of law, we will address it.

Appellant claims that the Commonwealth failed to establish he was incapable

of safe driving. Appellant’s brief at 16. He highlights the Commonwealth’s

evidence that the officer observed Appellant performing a left hand turn

without incident, drove in a straight line, did not weave, immediately

stopped his vehicle, and handed documents over without issue. Id. at 17.

         However, this argument fails to appreciate the contrary evidence

establishing that Appellant “[d]id not stop whatsoever” for two stop signs.

Id. at 22.     Additionally, the officer testified to Appellant’s performance on

field sobriety tests and offered his opinion that Appellant was incapable of

safely     operating   the   motor   vehicle.      Id.   at   28.   Moreover,   the

Commonwealth’s expert gave an opinion to a reasonable degree of scientific

certainty that Appellant’s BAC within two hours of driving was between .213

and .233. Id. at 109. The jury could consider that testimony in determining

whether Appellant was impaired at the time of driving. “Blood alcohol level

is admissible in a subsection 3801(a)(1) case only insofar as it is relevant to

and probative of the accused's ability to drive safely at the time he or she

was driving.”     Segida, supra at 879.         It was properly left to the jury to

weigh all of this evidence, including the competing evidence of Appellant’s

driving.     “The weight to be assigned these various types of evidence

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presents a question for the fact-finder, who may rely on his or her

experience, common sense, and/or expert testimony.” Id. Thus, we hold

that the evidence, when viewed in the light most favorable to the

Commonwealth      as   the   prevailing    party,   supports   the   conviction.

Accordingly, this issue does not warrant relief.

      Appellant’s remaining issue challenges the admission of evidence

establishing the presence of beer in Appellant’s vehicle. The pertinent facts

are as follows.   Sergeant Pocsatko testified that, when he approached the

vehicle, Appellant’s passenger was attempting to conceal an open can of

beer. N.T. Jury Trial, 8/5-6/15, at 24. The officer observed a partially-full

case of beer on the passenger side floor. Id. He confirmed that he did not

observe Appellant hand the passenger any objects, and that no cans were

found on the driver’s side of the vehicle. Id. at 39-40. Appellant moved to

preclude this evidence. Id. at 5. The trial court opined that the evidence

was relevant and was not inflammatory. Trial Court Opinion, 11/19/15, at 7.

      Appellant attacks the admission of this evidence on two bases. First,

he asserts the beer was irrelevant to his own intoxication, as all evidence

elicited by the Commonwealth connected the beer solely to the passenger.

Alternatively, Appellant contends the evidence was prejudicial in that

testimony regarding the passenger’s intoxication and possession of alcohol

influenced the jury against him.

      Our standard of review applied to evidentiary rulings is well-settled.

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      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused
      its discretion. An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the
      law, or the exercise of judgment that is manifestly unreasonable,
      or the result of bias, prejudice, ill-will or partiality, as shown by
      the evidence of record.

Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).

      It is, of course, a fundamental principle that evidence must be relevant

to be admissible. “The basic requisite for the admissibility of any evidence in

a case is that it be competent and relevant.” Commonwealth v. Cox, 115

A.3d 333, 339 (Pa.Super. 2015) (en banc) (citing Commonwealth v.

Freidl,   834   A.2d   638   (Pa.Super.   2003)).      Irrelevant   evidence   is

inadmissible.   Pa.R.E. 402.   The Rules of Evidence require that evidence

must satisfy two prerequisites.     “Evidence is relevant if . . . it has any

tendency to make a fact more or less probable than it would be without the

evidence; and . . . the fact is of consequence in determining the action.”

Pa.R.E. 401.    Herein, Appellant maintains that the evidence failed both

conditions.

      We disagree. Appellant was charged and convicted of two DUI crimes.

The first, commonly referred to as general impairment DUI, states that an

individual “may not drive . . . a vehicle after imbibing a sufficient amount of

alcohol such that the individual is incapable of safely driving . . . the

vehicle." 75 Pa.C.S. § 3802(a)(1). The second DUI count charged Appellant

with violating 75 Pa.C.S. § 3802(c), which prohibits a person from driving,


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operating, or being in physical control 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.”

      In contrast to § 3802(a)(1), proof of the § 3802(c) offense does not

require the Commonwealth to establish impairment.          We have recognized

that the relevance of evidence in DUI prosecutions depends on the theories

alleged. The seminal case is Commonwealth v. Kemble, 605 A.2d 1240

(Pa.Super. 1992), in which we reversed a conviction for driving at a

particular BAC level. Therein, the Commonwealth, which did not charge a

general impairment offense, presented the arresting officer’s observations

that the driver had difficulty driving, staggered when exiting her vehicle,

possessed an odor of alcohol, and failed sobriety tests.      Id. at 1241. We

held that evidence was irrelevant since the only material fact was whether

the driver’s BAC was at or above the specified level.

      [T]he only relevant evidence that would prove the fact that a
      defendant violated [the specific BAC charge] would relate to the
      existence of an intoxilyzer test, the results of the test, the
      reliability of the intoxilyzer machine, the qualifications of the
      person who administered the test, the procedures utilized in
      conducting the test and the methods employed in arriving at the
      test results. In contrast, in a [general impairment] prosecution
      the Commonwealth may introduce evidence regarding a
      defendant's behavior prior to her arrest and/or during or
      subsequent to her arrest; the Commonwealth may introduce
      evidence regarding the number of alcoholic drinks consumed by

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        a defendant, her illegal or erratic driving behavior, her apparent
        “state of mind” at the time in issue, the existence of an odor of
        alcohol emanating from a defendant, the fact that her eyes were
        bloodshot and the fact that she “sway[ed] and sagg[ed]”
        subsequent to her exit from her automobile. Commonwealth v.
        Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988).

Id. at 1242 (footnote omitted). See also Freidl, supra (applying Kemble

and holding that a defendant could not introduce videotape evidence of his

field   sobriety   tests   as    the   Commonwealth    did    not   charge     general

impairment).

        In light of the foregoing, we now turn to the application of Pa.R.E. 401

to the evidence. If Appellant was drinking alcohol while driving, that fact is

of consequence to the general impairment charge. Therefore, the question

is whether the challenged evidence makes that fact more probable.

“Evidence is relevant if it logically tends to establish a material fact in the

case, tends to make a fact at issue more or less probable or supports a

reasonable     inference    or     presumption    regarding    a    material    fact.”

Commonwealth v. Loughnane, 128 A.3d 806, 818 (Pa.Super. 2015)

(quoting Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa.Super.

2012)).

        The evidence at issue supported a reasonable inference that Appellant

drank alcohol while driving.       That Sergeant Pocsatko did not observe any

direct signs of Appellant passing the can to the passenger does not negate

the possibility that Appellant drank from the open container at some point



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prior to police observation.   Additionally, Appellant could have consumed

beer from the partially-full case on the floor and discarded the cans while

driving.    An open alcohol container in a vehicle and a partially-consumed

case of beer tend to establish that Appellant was drinking alcohol while

driving. The open container’s proximity to the passenger might lessen that

probability, but does not eliminate it.   Appellant emphasizes that the beer

cans were on the passenger’s floor, but that fact does not preclude

Appellant’s access to the open container or the used alcohol from the case of

beer in the vehicle.      Indeed, our law holds that two persons may

constructively possess the same item.         See e.g. Commonwealth v.

Valette, 613 A.2d 548, 550 (Pa. 1992) (“Constructive possession may be

found in one or more actors where the item in issue is in an area of joint

control and equal access.”).

      Furthermore, the general impairment DUI charge “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.”    Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa.Super.

2006); see also 75 Pa.C.S. § 1547(f) (provisions of statute regarding

chemical testing of blood “shall not be construed as limiting the introduction

of any other competent evidence bearing upon the question whether or not

the defendant was under the influence of alcohol.”). Therefore, the presence

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of alcohol in a vehicle driven by Appellant was relevant to the general

impairment charge.

      Having established the evidence was relevant we next consider

Appellant’s argument that the evidence should have been excluded as

prejudicial.

      The presence of alcohol and open containers of alcohol in the
      Appellant’s vehicle, even though not in his possession, did create
      unfair prejudice in the eyes of the jury against [Appellant].
      Knowledge of alcohol in the presence of the [a]ppellant in his
      vehicle led to an unfair prejudice against the [a]ppellant that he
      was drinking and this led to a conviction despite arguments
      against his guilt. Said testimony biased the jury and led them
      towards conviction despite evidence to the contrary. Moreover,
      said evidence did confuse the jury by bringing up issues that had
      no connection to the [a]ppellant and may have mislead [sic] the
      jury into believing that the alcohol was the [a]ppellant[‘]s and
      not his passenger[‘]s.

Appellant’s brief at 14. Our Supreme Court has set forth the following test

for excluding otherwise admissible evidence on prejudice grounds.

      The admissibility of evidence is determined by its relevance and
      probative value. Commonwealth v. Lilliock, 740 A.2d 237,
      244 (Pa.Super.1999). Relevant and probative evidence is
      inadmissible if its probative value is outweighed by unfair
      prejudice. Commonwealth v. Crews, 536 Pa. 508, 640 A.2d
      395, 402 (1994). This Court has previously stated that all
      evidence in a criminal proceeding is prejudicial to the defendant,
      Commonwealth         v.    Kitchen,     730     A.2d    513,  519
      (Pa.Super.1999), and that relevant evidence is to be excluded
      only when it is “so prejudicial that it may inflame the jury to
      make a decision based upon something other than the legal
      propositions relevant to the case.” Id. (citations omitted).

Commonwealth v. Colon, 846 A.2d 747, 753 (Pa.Super. 2004).




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      We find that the evidence was not so prejudicial as to bar its admission

under these principles. Since Appellant admitted to drinking and the officer

testified to physical indicia of intoxication, the present situation is not one

wherein the beer was the only evidence of intoxication. Therefore, the trial

court did not abuse its discretion in admitting the evidence.

      Furthermore, we would deem any error in admitting the evidence

harmless. Our Supreme Court has explained that an error is harmless “if it

could not have contributed to the verdict, or stated conversely, an error

cannot be harmless if there is a reasonable possibility the error might have

contributed to the conviction.”   Commonwealth v. Poplawski, 130 A.3d

697, 716 (Pa. 2015). While the Commonwealth does not argue this point,

our Supreme Court has held that its failure to do so does not preclude a

harmless error analysis. Commonwealth v. Allshouse, 36 A.3d 163, 182

(Pa. 2012).

      Herein, we are satisfied that there is no reasonable possibility that the

evidence contributed to the conviction. The Commonwealth established that

Appellant admitted to the officer that he had consumed a few beers. N.T.,

8/5-6/15, at 24.    Additionally, the officer testified to physical indicia of

Appellant’s intoxication.   Id. at 24-25.      Therefore, the evidence was

cumulative of other evidence.     Additionally, the officer agreed on cross-

examination that the facts “show it’s the passenger holding a beer can.” Id.

at 40. Finally, Appellant’s BAC was at least .213, which is nearly three times

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the legal limit. Thus, the challenged evidence, which was not directly linked

to Appellant in any manner, ”was so insignificant by comparison that the

error could not have contributed to the verdict.”       Commonwealth v.

Hairston, 84 A.3d 657, 672 (Pa. 2014).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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