J-S65045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN THOMAS BARR

                            Appellant                 No. 1526 EDA 2015


             Appeal from the Judgment of Sentence April 22, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0002845-2014


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 05, 2016

        Appellant John Thomas Barr appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas following his

stipulated bench trial convictions for driving under the influence (“DUI”),

general impairment and DUI, highest rate of alcohol.1 We affirm.

        On April 22, 2015, the trial court conducted a stipulated bench trial in

which Appellant stipulated to the Commonwealth’s evidence, specifically the

affidavit of probable cause, the Pennsylvania Implied Consent Law (“DL-26”)

form, the chain of custody form, and the NMS2 report.           The trial court

convicted Appellant of the aforementioned crimes based on the affidavit of

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1
    75 Pa.C.S. § 3802(a) and (c), respectively.
2
    NMS Labs is the company that tested Appellant’s blood for alcohol.
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probable cause that alleged Appellant operated a motor vehicle on

September 3, 2013, while he was visibly intoxicated, and lab reports taken

from blood withdrawn from Appellant less than an hour after he was driving,

which revealed a blood alcohol (“BAC”) of .243%. The trial court proceeded

to sentence Appellant to seventy-two (72) hours to six (6) months’

incarceration, plus a $1,000.00 fine for DUI, highest rate of alcohol.3

       On May 21, 2015, Appellant timely filed a notice of appeal. On May

27, 2015, the trial court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely

complied on June 3, 2015.

       Appellant raises the following issue for our review:

          WHETHER THE EVIDENCE WAS SUFFICIENT FOR THE
          TRIAL COURT TO CONVICT [APPELLANT] OF DRIVING
          UNDER THE INFLUENCE OF ALCOHOL PURSUANT TO 75
          [Pa.C.S §] 3802(C)?

Appellant’s Brief at 5.

       Appellant argues that the Commonwealth failed to establish NMS Labs

was a facility authorized to withdraw blood pursuant to the Pennsylvania

Code and concludes there is insufficient evidence to convict him of DUI,

highest rate of alcohol. We disagree.



____________________________________________


3
  Appellant’s DUI, general impairment conviction merged for sentencing
purposes.



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      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

      Here, Appellant waived his claim by filing a deficient concise statement

of errors complained of on appeal.

      Pennsylvania Rule of Appellate Procedure 1925 requires that an

appellant “concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues[.]” Pa.R.A.P.

1925(b)(4)(ii).   “When a court has to guess what issues an appellant is

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appealing, that is not enough for meaningful review.” Commonwealth v.

Allshouse, 969 A.2d 1236, 1239 (Pa.Super.2009) (failure to adequately

identify issues “impede[s]” trial court “in its preparation of a legal analysis

which is pertinent to those issues.”). Additionally, this Court has noted, “a

[c]oncise [s]tatement which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent to no [c]oncise

[s]tatement at all.”   Commonwealth v. Heggins, 809 A.2d 908, 911

(Pa.Super.2002), appeal denied, 827 A.2d 430 (Pa.2003) (citation omitted).

      “In order to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

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

insufficient.”    Commonwealth        v.   Garland,        63   A.3d   339,   344

(Pa.Super.2013); see also Commonwealth v. Garang, 9 A.3d 237, 244

(Pa.Super.2010). Failure of the concise statement to identify what specific

elements the Commonwealth failed to prove at trial renders an appellant’s

sufficiency of the evidence claim waived for appellate review. Garland, 63

A.3d at 344.

      The trial court convicted Appellant of DUI, general impairment, and

DUI, highest rate of alcohol, under the following statute:

          § 3802. Driving under         influence     of    alcohol    or
          controlled substance

          (a) General impairment.--




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              (1) 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
              individual is rendered incapable of safely driving,
              operating or being in actual physical control of the
              movement of the vehicle.

              (2) 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 at least 0.08% but less than 0.10% within two hours
              after the individual has driven, operated or been in
              actual physical control of the movement of the vehicle.

                                       *       *   *

          (c) Highest rate of alcohol.--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.

       Appellant’s concise statement states, in its entirety: “Whether the

evidence was insufficient to convict the Defendant?”      This statement does

not identify with specificity what element of his crimes the Commonwealth

failed to establish. Thus, Appellant has waived his sufficiency claim.4 See

Garland, supra.

       Judgment of sentence affirmed.

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4
  Moreover, Appellant’s sufficiency claim would merit no relief because he
stipulated to the admission of the NMS report into evidence.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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