Com. v. Kohli, H.

• Court: Superior Court of Pennsylvania
• Decided: January 10, 2017
• Docket: 101 EDA 2016
• Status: Unpublished

Opinion

J-S75035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : HEMANT KOHLI, : : Appellant : No. 101 EDA 2016

Appeal from the Judgment of Sentence entered on October 21, 2013 in the Court of Common Pleas of Chester County, Criminal Division, No(s): CP-15-CR-0000569-2013

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 10, 2017

Hemant Kohli (“Kohli”) appeals, nunc pro tunc, from the judgment of

sentence imposed following his conviction of driving under the influence

(“DUI”). See 75 Pa.C.S.A. § 3802(a)(1). We reverse and remand for

resentencing.

The trial court has set forth an extensive recitation of the underlying

facts in its Opinion, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 3/10/16, at 4-19.

On August 6, 2013, following a jury trial, Kohli was found guilty of one

count of DUI. The jury also found that Kohli had refused to submit to a

blood test. On October 21, 2013, the trial court sentenced Kohli to 18 to 36 J-S75035-16

months in prison, followed by two years’ probation.1 Kohli did not file a

direct appeal.

On September 8, 2014, Kohli filed a counseled Post Conviction Relief

Act (“PCRA”)2 Petition. On December 3, 2015, with agreement of the

Commonwealth, the PCRA court entered an Order granting Kohli the right to

file a nunc pro tunc direct appeal. Thereafter, Kohli filed a nunc pro tunc

appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise

Statement.

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

1. Whether the evidence was insufficient as a matter of law to sustain [Kohli’s] conviction for [DUI]?

2. Did the Common Pleas Court [err] in imposing a minimum mandatory sentence?

Brief for Appellant at 2.

In his first claim, Kohli contends that the evidence was insufficient to

support his conviction. Id. at 7. Kohli argues that he only had one drink

approximately seven hours prior to the vehicle stop; when he stopped his

vehicle at the stop sign, the vehicle only slightly went past the sign; he was

able to pull over when the officer engaged his emergency lights; and there

was no other evidence of erratic driving. Id. at 8-9. Kohli asserts that he

1 At sentencing, the trial court noted that the conviction at issue in this case was Kohli’s third DUI conviction in a ten-year period. N.T., 10/21/13, at 5, 9. 2 See 42 Pa.C.S.A. §§ 9541-9546.

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passed the first field sobriety test and only exhibited signs of impairment on

the “walk and turn test and [the] one leg test.” Id. at 9. Kohli further

denies that he slurred his speech, had bloodshot eyes, admitted to drinking

alcohol, or engaged in any extreme behavior. Id. Rather, Kohli claims that

he was coherent at the time of the stop. Id. Kohli also contends that there

was no blood alcohol or drug testing conducted to demonstrate that he was

under the influence. Id. Kohli argues that he refused to submit to a blood

test because he was battling a skin disorder and was prone to infection from

a needle. Id. Kohli asserts that he should have been provided an

alternative chemical test, and that such a test could have rebutted the

Commonwealth’s allegations. Id. at 9-10.

The trial court set forth the relevant law, addressed Kohli’s sufficiency

claim and determined that it is without merit. See Trial Court Opinion,

3/10/16, at 2-21. We adopt the trial court’s sound reasoning for the

purpose of this appeal. See id.

In his second claim, Kohli contends that his mandatory minimum

sentence was illegal based upon Alleyne v. United States, 133 S. Ct. 2151

(2013). Brief for Appellant at 11.3 Kohli argues that his sentence is illegal

3 Kohli’s failure to include this legality claim in his Rule 1925(b) Concise Statement does not result in waiver. See Commonwealth v. Henderson, 938 A.2d 1063, 1065 n.1 (Pa. Super. 2007) (stating that appellant’s failure to include a legality of sentence challenge in his Rule 1925(b) concise statement did not result in waiver, as such a claim cannot be waived where jurisdictional requirements are met).

-3- J-S75035-16

because the jury did not find beyond a reasonable doubt all facts necessary

to require imposition of a mandatory minimum sentence. Id.4

Section 3804(c)(3) states the following:

(c) Incapacity; highest blood alcohol; controlled substances.--An individual who violates section 3802(a)(1) and refused testing of blood or breath or an individual who violates section 3802(c) or (d) shall be sentenced as follows:

***

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year; (ii) pay a fine of not less than $2,500; and (iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

75 Pa.C.S.A. § 3804(c)(3).

Here, the mandatory minimum sentence was imposed based upon

Kohli’s prior convictions, his violation of section 3802(a)(1), and his failure

to consent to a blood test. See N.T., 8/6/13, at 63-64. Prior to addressing

Kohli’s claim on appeal, we will first determine whether the imposition of the

mandatory minimum sentence violated the recent United States Supreme

4 We note that Kohli does not identify the “fact” that the trial court utilized in imposing the mandatory minimum sentence. See Pa.R.A.P. 2119(a) (stating that the argument must contain “such discussion and citation of authorities as are deemed pertinent.”). Here, Kohli was subject to the mandatory minimum sentence under 75 Pa.C.S.A. § 3804(c)(3). See N.T., 10/21/13, at 21.

-4- J-S75035-16

Court holding in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).5 In

Birchfield, the Supreme Court concluded that “a breath test, but not a

blood test, may be administered as a search incident to a lawful arrest for

drunk driving.” Birchfield, 136 S. Ct. at 2185. Additionally, the Supreme

Court held that blood tests taken pursuant to implied consent laws are an

unconstitutional invasion of privacy. Id. at 2186. The Supreme Court

stated that “motorists cannot be deemed to have consented to submit to a

blood test on pain of committing a criminal offense.” Id.; see also id.

(concluding that the petitioner could not be convicted of refusing a

warrantless blood draw following an arrest for driving under the influence).

As the Birchfield Court held that the practice of criminalizing the

failure to consent to blood testing following a driving under the influence

arrest was unconstitutional, the trial court improperly relied upon section

3804(c)(3) in imposing a mandatory minimum sentence upon Kohli.

Because there was no statutory authority to impose the sentence, we must

reverse the sentence and remand for resentencing.6

5 We note that sentencing issues which implicate a court’s statutory authority to impose a sentence implicates the legality of sentence. Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011). While this issue was not raised by the trial court, the Commonwealth, or Kohli, it is well- settled that legality of sentence questions may be raised sua sponte by this Court. Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). 6 Based upon our disposition, we need not further address Kohli’s bald Alleyne challenge.

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Judgment of sentence reversed. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/10/2017

-6- Circulated 11/16/2016 02:57 PM

11 I COMMONWEAL TH OF PENNSYLVANIA IN THE COUR.T OF COMMON PL.EA.S

CHESTER COUNTY, PENNSYLV/\NI/\

CRIMIN/\L ACTION

NO. 569-'13

SUPERIOR CT. NO. 101 EDA 2016

$TATEfvlENT Of TH!;__COUJ3I

11 On December 30, 2015, Defendant filed a timely appeal following the court's I,· I

i •

December 3, 2015 wanting of his nunc pro tune appeal request An appeal having been 1,1

II II II taken, pursuant to Pa.RAP. ·J 925(a), the following statement is submitted. l On August 6, 2013, a jury found Defendant guilty of driving under the influence, in I violation of 75 Pa.C.S.A § 3802(a)(1 ). The jury also found that Defendant refused to

submit to a blood test. Defendant was sentenced on October 21, 2013. lI On September 8, 2014, Defendant filed a Post Conviction Relief Act Petition. On II f I Se pte m be r 17, 2014, an Order was entered directing the C ommonwe a Ith to file an

11 Answer within 45 days. The Commonwealth filed an Answer on October 29, 2014. On

!I March 4, 2015, an Order was entered directing Defendant to comply with 42 f:la.C.S.f-\. § 11 9545(d).(1), which requires signed certifications from each intended witness when an

I evidentiary hearing is requested.

After Defendant complied with the certification requirement, an Order was entered I on May 27, 2015, scheduling an evidentlary hearing to be held on June 24, 2015. On I j ! June 15, 2015, Defendant's request for a continuance of the hearing was granted and the

l I hearing was rescheduled for August 3, 2015. 011 July 27, 20·15, Defendant's request for I 11 ,I 1, !i I I II a continuance of the hearing was granted and the hearing was rescheduled for i September 16, 20'15. On September 14, 2015, Defendant's request for a continuance of i .I L'I the hearing was ~Jranted and the hearinq was rescheduled for October 13, 2015. II Following the evidentiary hearing, and with the agreement of the Commonwealth, 11

an Order was entered on December 3, 2015 granting Defendant's request to file an I I

appeal nunc pro tune. On December 30, 20·1 s, Defendant filed a Notice of Appeal and

included a Statement of Matters Complained of on Appeal. Defendant alleges that the

evidence was insufficient to support the verdict and that the verdict was against the

weight of the evidence.1 Vl/e wil first address the sufficiency of the evidence claim and

then address the weight of the evidence claim.

Sufficiencyof the Evidence:

The standard for reviewing the sufficiency of the evidence is "whether the ! j I J evidence, viewed in the !ight most favorable to the Commonwealth as verdict winner, is I sufficient to enable the fact-finder to find every element of the crime beyond a I i reasonable doubt." ~ommonwealth v. Matthew, 909 A.2d 1254, 1256-57 (Pa. 2006),

citing Commonwealth v. Williams, 896 A.2d 523, 535 (Pa. 2006), cert. denied, 127 S.Ct.

II 1253 (2007), and Common1J>{g_,.:lith v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005), cert.

I,' I denied, 547 U.S. 1058, 126 S.Ct. 1659 (2006). I In addition, all reasonable inferences drawn from the evidence must be viewed in] 11 I, ~omm_QlJ.Y:LEi~l!!J v. McCol!um, 926 A.2d I Ii the light most favorable to the Commonwealth. 527, 530 (Pa.Super. 2007), quoting ~Qp,monwealth v. Earr!...8-.?1, 563 A.2cl 158, 159 I' I I (Pa.Super. 1989). "The test is whether the evidence, thus viewed, is sufficient to prove I I 11 ······--·--···-·------ --· .. -·--····-····· ..· - I ,· ,I : Defendant's Statement of Matters Complained of on Appeal states "the judge's verdict of guilty,'' ! i 11 2 I I;

'I l guilt beyond a reasonable doubt." tv1cColiLHl1, 926 A.2d at 530, citing 9omrngnw~~l!h v.

iI §.werd low. 636 A. 2d 1173 (Pa .Super. 1994). "This standard is equally applicable to I I cases where the evidence is circumstantial rather than direct so long as the '

i combination of the evidence links the accused to the crime beyond a reasonable

doubt." McCgJ!!J.rn. 926 A.2d at 530, quoting Swerdlow, 636 A.2d at 1 '176.

A conviction must be based on more than mere suspicion or conjecture,

however, the Commonwealth does not need to establish guilt to a mathematical I certainty. fv1Q_~ol_[um, 926 A.2d at 530, quoting ,Con1n1onwealth v. Badman. 580 lt2d I 1367, 1372 (Pa.Super. 1990). "Moreover, the facts and circumstances established by

the Comrnonwealth need not preclude every possibility of innocence." Q.QJJllllQJlW??.l.tb.

v. Marrero, 914 A.2d 870, 872 (Pa.Super. 2006), citing Commonwealth v. Bullick, 830

:!. A.2d 998, 1000 (Pa.Super. 2003). ! i i Tile court may not weiqh the evidence and substitute its judqment for the fact- I 11 1 1. finder. lei.:. "Any doubts regarding a defendant's quilt may be resolved by the fact-finder 11

j' unless the evidence is so weak and inconclusive that as a matter of law no probability I

I I of fact may be drawn from the combined circumstances." jl,1arrero, 914 A.2d at 872, '

[' citing Commonwealth v. DiStefan_Q, 782 A.2d 574, 582 (Pa.Super. 2001). app. denied, I I I 1 806 A.2d 858 (Pa. 2002) When evaluating the credibility of lhe witnesses and 11

I! I I. evidence as well as the weiqht of the evidence, the fact-finder is free to believe all, part, I I

I i ~~~,:~::: t::o~i.d::;e ::,:i:::t::4 :::,;::~::lt:o:;~::~t~:gB :o::;::~~:::~ I

however. the verdict of guilty was found by a jury. not the judge. I 11

Stevenson, 894 A.2d 759, 77 3 (Pa .Super. 2006), app. denied, 917 A.2cl 846 (Pa, 11 I! 2007).

ii The uncorroborated testimony of one victim, if believed by the trier of fact, is 11 II lI, I sufficient to convict a defendant, if all the elements of a crime are established beyond a I reasonable doubt. Q..9rn1T1011yve_9_Wl.Y,JY1s.£.ti, 850 A2cJ 690, 693 (Pa.Super. 2004), citing\ I I I .G.QtDrn211wea!tl1_v._D_~'{is, 650 A.2d 452, 455 (Pa.Super. 1994), app. granted, 659 A.2ci I I 11 557, affirmed, 674 A.2d 214 (Pa. ·1996). Hie Commonwealth presented two witnesses 11 II and Hie Defendant presented four witnesses. II I Fingin_g_$ of Fact:. I I! II I Officer David Warrl!e testified at trial that he had been a patrol officer with Caln I i I I

I Township Police Department for over eleven years. (N.T., 8/5/13, p. 38). Prior to Caln \ II ! I Township he served in three other police departments. Id.,_ Overall, he had served over I 'I I fifteen years as a police officer. lei. I I Office Wardle testified that on January 1, 20·13, at approximately 5:20 AM, he l 11 was driving in an unmarked patrol vehicle northbound on Municipal Drive in Caln !I ! Township, Chester County. (l'.JT., 8/5/13, pgs. 3~J, 71 and 7l3). His vehicle was the oniy I I! I II one on Municipal Drive at the time. (N .T., 8/5/'l 3, p. 70). He stopped at the four 1Nay I I, I !I stop sign at the intersection of G.D. Carlson Boulevard. (NT, 8/5/13, pqs. 39, 71 and I 76). Out of habit, he had his vehicle window cracked open. (N.T., 8/5/13, pgs. 39 and I 70). While stopped, he heard a vehicle corning toward the intersection at a high rate I: of speed; it was going eastbound on G.O. Carlson Boulevard. (N.T., 8/5/13, pgs. 39-40 II I j I and71-72). I 11 I iI I i

4 Specifically, he heard the sounds of the engine and the wheels on the road,

which sounded like they were going fast. (!\LT., 8/5/13, p.40). Office Wardie testified I i

that he stayed stopped because he did not want to go through the intersection . .kl_ He I II; observed the headlights cominq and they appeared to be corning at a high rate of I I speed. Id..,_ The officer ciid not think the vehicle would stop. 19..:. J\t the last second, the I driver' applied the brakes and the vehicle came to a screeching halt, "as much as I! 1 •

11 antilock brakes can come to a screeching halt." kl He heard the wheels chirping as 'I I the brakes clicked on and off. J_~L. I The officer testified that the vehicle did stop but that it was partially past the stop Il II sign and into the intersection. (f\J.T., 8/5i13, pgs. 40 and 73). He used Exhibits C-1

11 and C-2 as visual aids to demonstrate the roadways, the directions of travel and

I I I locations of his vehicle and Defendant's vehicle. (N.T, 8/5/13, pgs. 41-45). When ! I

Defendant's vehicle came to a stop, most of the vehicle had crossed over the stop line. · 1

(N.T., 8/5/'l 3, pgs. 45 and 73). · 1

I iI r Office VVardle initiated his emergency reel and blue lights, put his window down

! I the rest of the way and turned left onto G.O. Carlson Boulevard to pull up right next to II I, Defendant's vehicle. (N.T., 8/5/13, pgs. 45 and 77-78). The officer testified that he put \ J, his hand out the window in an open manner and motioned for Defendant to stop. (N.T., J

Ii I I 815/13, pgs. 45-46 and 78). He wanted to get Defendant's attention to slop and talk lo I i him. (N.T., 8/5/13, p.45). He demonstrated in court how he signaled to Defendant, with I his left hand, the universal sign for stop. (N.T., 8/5/13, p.46). :1... I ! I 1,

! I ,! ,I ;, Officer Wardie id,3ntifieci Defendant as the driver of tile vehicle. (J-..J.T., 13/5/13, pgs. 53-54). , I/ .

c 11 .• ! 11 I 11 Defendant failed to stop and accelerated eastbound at a high rate of speed. I: I I

Il 11 (N.T., 8/5/13, pgs. 46 and 78). Officer Wardle kept his emergency lights on, made a i I 11 I Ii three-point turn to start following Defendant and activated his siren as well. (N.T., j 11 I! 8/5/13, pgs. 46-t48). The officer followed Defendant into the Thornridge development \ I! iI I 11 ! where Defendant stopped his vehicle and got out. (N.T., 8/5i13, pgs. 48, 54, 78 and

80). Officer Wardle stopped his patrol car behind Defendant's vehicle. (N.T., 8/5/13, I 1 i 11 Ii p. 48). I i

11 JI Defendant had exited nis vehicle and the officer instructed him to get back in the I

. II i

I car. (N.T., 8/5/13, pgs. 48 and 52-53). Defendant failed to comply. (N.T., 8/5/13,

II ! I p.53). Defendant stated that he did not see the police vehicle at the stop sign. (N .T., ,· i 11 8/5/13, p. 188). Office Wardle observed that Defendant was unsteady on his feet when j

1 ii standing, swaying frorn side to side, almost staggering. (N.T., 8/5/13, pgs. 53-54 and I 1 81 ). Defendant was not falling over, but the officer testified that he had to assist him a ,1. I il couple of times during the encounter. (N.T., 8/5/13, pgs. 54 and 81). The officer could ,, 11 11 smell a strong odor of alcoholic beverage coming from Defendant. (N.T., 8/5/13, pgs.

iI I 53-54).

Officer \/Vardle described the training and experience he had received with

IJ regard to interacting with people that may be under the influence of alcohol. (N.T.,

I,' I 8/5/13, p. 55). He had training at the police academy for one year, including training in

i DUI detection, field testing and how to properly stop a vehicle. (N.T., 8i5tl 3, pgs. 55

and 69-70). Officer Wardle takes updated mandatory trnining once a year. (N.T., I ii 1 · 8/5/B, p. 69). 11 II 11

I j .I l 6 'I

!11 i 1, He had personally investigated about 75 DUI cases and had assisted numerous 'I 1111 officers with their cases and field tests. (N.T, 8/5/13, p. 55). Also, during his 15 years 1 11 ,I as a police officer. he very frequently dealt with people who were under the influence oi 11 alcohol in non-DUI related settings. kl In his personal life, he has frequently had the II 11

I! opportunity to come into contact v,;ith people who are under the influence of alcohol. ld 0 I 11 11r 1 Based on his training and experience, when he does a traffic stop Officer Wardle I I !I looks at the following for indicia of someone being under the influence of alcohol: " ... I'I! I physical observations, how they move, how they talk, the look in their eyes, the things I I 11 i that they say, the manner of their speech, whether it's slurred or clear." (N.T .. 8/5/'13. I 11 pgs. 55-56). I! I I Officer Wardle testified that Defendant told him that he had a few drinks at a I 11 friend's house earlier and that he was trying to go home. (N.T., 8/5/13, p.56). The 1, I I: i officer further testified that Defendant then asked him " ... numerous times if I knew who Ii ·11I I

'1 he was He asked me numerous times, also, if we had reached the point in life that we I I, were all losing. And then, again, he was going to be the next President of the United l States. And he asked me if I would like him to have Obama call to verify it." ld"-

I I, I Defendant started making the statements almost immediately when the officer started 11

I\ interacting with him, well before he was placed under arrest for DUL (N.T., 8/5/13, p. I 1 188). 11I,

II Their encounter lasted a little over a half an hour and during that time, Defendant! I 11 I 11 asked the officer five or six times if he knew who Defendant was and that he would be I 11 !I !I lii I the next President of the United States. (N.T., 8/51'13, pgs. 56-57 and 188). Defendant I i i j I I !11 I I I II I I I 11 i !l 11 also to!d him five or six times that he would have President Obama give the officer a

I call. (N.T., 8/5/13, p.57):.

Based on Officer Wardle's life experience he would not describe Defendant as

'\ saying it in a joking or sarcastic manner. (N.T., 8/5/13, p. 188). It sounded like drunken I, rambling to the officer. Id. Based on his training and experience, the officer formed the j ! 11 I1 ! I opinion that Defendant was under the influence of alcohol and/or drugs and that givin9 11 i I 11 field sobriety tests would be appropriate. (NT, 8/5/13, pgs. 57 and 82). This opinion I 'I Ir I was based upon Defendant's unsteady gait, his swaying side to side; his cryptic I questions; the things he Was saying, his slurred speech and the odor of alcohol. (N.T., I I ,I I I I 8/5/13, p.57). I iII 'II Officer Wardle testified that that he generally uses three field sobriety tests and I I! he gave Defendant the three tests during the incident in question. I' (N.T., 8/5/13, pgs.

58 and 83). First he asked Defendant to say the alphabet and Defendant recited it II fine. kl Next, the officer used two physical tests to determine Defendant's ability to I hold his balance and follow instructions. (f\J.T., 8/5/13, p. 58). I For the one leg stand test, Officer Wardle testified that he instructs suspects to I i stand with their feet together, hands at their side so that they can focus on what he is I telling them. kl Officer Wardle holds that position as well. Id. He stated, "[Tlhe

instruction is to lift whichever foot you choose six inches off the ground, then count to

I 2,0 by thousands, one, 1,000: two, 1,000. And I do explain, not all the way to 30, but I

i.;!'• I wil count and say to three or four, just so they understand the test" kl He also asks if

I! 11 there is anything wrong with the suspect's legs, knees or hips that might prohibit doing 1. I l I I ! i the physical test. (N.T., 8/5/13, pgs. 59-60). Officer Wardle demonstrated for the jury :I ! I I .I B 'I I 1I ! II i 11'

how he instructed Defendant to do the test. ht He testified that Defendant said he was] I · 1 fine in response to the question about any !eg, knee or hip issues. (hJ.T., 8/5/13, p.

60). I I I The officer stated that ideal road conditions for field sobriety tests, would be a I I 11 flat surface with no obstructions or gravel. (N.T., 8/5/'13, pqs. 58-59). During the !'II i ! ! incident in question, Defendant and Officer VVardle vvere on a good, flat, level, dry I I ;I surface. (N.T., 8/5/13, p. 59).

Ii l When asked howDefendant performed on the test, the officer responded, "[a]! I the count of three, he had to put his foot down for balance. He started over at the count

i I of four. He had to put his foot down for balance again." (f\l.T., 8/5/'13, pgs. 60 and 83).

11 At that point. Defendant asked the officer if he could perform another test. (N .T., 11

I!I! r;r..1-1 ..l _:1 "',.::, • ·1 . I- 6'0) .

! Officer Wardle explained the walk and turn test to Defendant. kl He

demonstrated and described the test to the jury as he had described it to Defendant on I, 11 the morning in question. (N.T., 8/5/13, pgs. 60-61). Specifically, the officer stated,"!, .I II lIi ! again. would have them hold position. in a mirror position. Have them put their right 11 IIii foot in front. i mirror the left foot in front of the right foot so there is no confusion, keep Ii Ii hands at side while I explain the test. He is to walk hee! to toe nine steps, counting out I with each step, turn, come back nine heel to toe steps. I will generali:/ demonstrate

I how to do it appropriately." (N.T., 8/5/13, p. 61). II J The officer testified that he did not recall if he demonstrated all nine steps for II I' I 11 Defendant, it might have been five or six, but he did demonstrate the steps and the turn\

11 for him. Id. He demonstrated for lhe jury how he showed Defendant how to make the I 11 , 1 II 11 I. '.:J I !l Ii 1 turn, as a "pivot where you are, nothing extravagant," before taking the heel to toe steps 11 ! i back. lit Regarding Defendant's performance of the test, Officer Wardle stated that ! I I I; i! Defendant was able to put one foot in front of the other, but used his arms out at the I I; Ii I I side for balance. J_c;L I' I I J The purpose of field sobriety tests is to help tile officer determine whether 11 i I Ii someone is under the influence of alcohol. (N.T, 3/5/13, p. 62). To make that I Ii Ij r I determination, the officer looks for "how they pay attention to the instructions, how they 11 I perform. Also, with the counting, it helps to see what their mental facilities are. Are 11 ,I I they counting in order? Are they hesitating, thinking about what the next number is? I 11 And, then also, their balance, how well they carry themselves." lI:L !I•i i' 'I Based upon his training and experience, the officer determined that Defendant I failed the one legged stand test. Id. This opinion was forrned because Defendant was I II only able to go to three or four steps before putting his foot down for balance. (N.T.,

· 1 8/5/13, pgs. 62-63). Officer \i\/ardle also detennined that Defendant failed the walk and 1. I11 I turn test because he did not follow instructions and he used his arms outstretched for I! Ii balance. (r\J.T., 8/5/13, p. 63). 1 ·

I I At this point during their interaction, the officer had formed the opinion that I

I Defendant was under the influence of alcohol and incapable of safe driving. JJ.L He

based this opinion on the totality of the circumstances. including the following: his

observation of Defendant rolling through the stop sign, the high rate of speed, applying

the brakes heavily at the last second, not following the officer's instruction to get back in

the car, Defendant's unsteady manner, the swaying. slurred speech, the odor of

alcoholic beverage, his questions to the officer of "have we reached a point where we're Ii

ij i :, I all losinq? Do I know who he is. that he is going to be the next president" and the field 11

!I I. sobriety testing results. (N.T., 8/5/13, pgs. 63-64 and 88).

11 At some point durin9 the officer's interactions with Defendant, he called Officer

ti Pohlig to assist at the scene. (N.T., 8/5/13, p. 64). Officer V\/ardle placed Defendant I j

under arrest, put him in the back of the patrol car and told Defendant that they were 11 , , goin9 to go to Brandywine Hospital for a chemical test of his blood. (N.T., 8/5/13, pgs. ! I Ii 64 and 84). The procedure for a chemical test entails a phlebotornist drawing two tubes ilj I of blood that wi!I get sent to the State Police lab where an analysis vvill be done to

I lj determine the blood alcohol content. (NT., 8/5/'13, p. 64).

II 'I Prior to leaving the scene, Officer Wardle asked Defendant if he would submit to I 11 the blood test. (N.T., 8/5/'!3, p. 189). Defendant responded that he would not submit to! !I 11 the test because he had a couple of prior DU!s and Defendant did not mention that he 11 11 had a skin rash or medical condition as the reason to not submit to the test.' (N.T., I I 8/5/13, pgs. ·1 sg-·191 ). Defendant did not mention a fear or concern of needles to the

I' t officer, nor did Defendant ask for another form of testing for alcohol. (N.T., 8/5/"13, p. 1, ! I

II 190).

'\ Once at the hospital, but prior to the blood draw, the officer is required by law to I

read the Implied Consent Form to all people that are requested to submit to a chemical

test. (N.T., 8/5/13, pgs. 64-65). The Implied Consent form is Form DL 2G issued by

PennDOT. (N.T., 8/5/13. p. 65, Exhibit C-3). Officer Wardle read the DL 26 form to I Defendant as follows: i I -----·-·-·--------·----- ! 3 i The court gave a cautionary instruction to the jury about Defendant's statement to the officer. The court instructed the jury that the evidence can only be considered in assessinq the c,·edibiiity of the witness and it is not to be used as evidence of his guilt or innocence cf the crimes charged in this case. {NT, 8/5/13, I pqs. 189-190).

IiI, 11 It is my duty as a police officer to inform you that of the follovving: You are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code. I am requesting that you submit to chemical test of blood _1; If you refuse to submit to the chemical test, your operating privileges will be suspended for at least ·12 months. If you previously refused a chemical test. or previously wese convicted of driving under the influence, you wil! be suspended for up to '18 months. !n addition, if you refuse to submit to the chemical test, ano you are convicted of violating Section 3802(a)(i), relating to impaired driving of the Vehicle Code, and because of your refusal, you will be subject to more severe penalty set forth in Section 3804(c) relating to penalties of the Vehicle Code. These are the same penalties that would be imposed if you I were convicted of driving with a high rate of alcohol, which included a minimum of 72 consecutive hours in jail and minimum fine of II $'1,000, up to maximum five years in jail and maximum fine of II $10,000. 11 1 · You have no right to speak with an attorney or anyone else i 11 before deciding whether to submit to testing. 'If you request to speak with an attorney 01· anyone else after being provided these I II I warnings, or you remain silent when asked to submit to chemical I'II testing, you will refused (sic) the test resulting in the suspension of your operating privilege and other enhanced criminal sanctions if I',I you are convicted of violating Section 3802(a) of the Vehicle Code. ij Il (N.T., 8/5/13, pgs. 65-68, 85 and Exhibit C-3).

After the officer finished reading this to nim, Defendant refused to submit to the II testing. (f\J.T., 8/5/13, pgs. 68 and 85). Defendant essentially said, "no." (N.T., 8/5/13, I

pgs. 68 and 191 ). Officer Wardle asked him to submit to the chemical testing of blood I II twice, once at the scene ofthe stop and once at the hospital. (N.T., 8/5/13, pgs. 68, 84

Ii and'191). After Defendant refused to give a sample, the officer took him home. (N.T.,

8/5/13, p. 68).

I ;I ----···-----··------ ,: At trial. Officer V\lardle explained lo the jury that the 01.26 form has a blank line in whicl1 they handwrite

'I,I the substance which they are requesting to test. In this case the substance was blood. (N.T., 8i5/13, p. 66 and Exhibit C-3).

II \I II I; i I! I1, I Officer Timothy Patrick Pohliq testified that he has been a police officer with Caln 11 I I j Township Police Department since ·1999. (N.T., 8/5/13, p. 89). He has completed

I numerous trainings with the Pennsylvania State Police on identifying people under the ! influence and standardized field sobriety tests. (NT, 8/5/13, pgs. g·J-92). Within the

training, test subjects would consume different amounts of alcohol so that they could

view various levels of sobriety and intoxication. (NT, 8/5/13, p. 92).

Officer Pohlig testified that some indicia of being under the influence that they

are trained to look for in people include slurred speech, unsteady gait and odor of

alcohol. Jd 0 At the time of trial he had made almost a hundred DUI arrests throughout I I!! I his 15 year cmeer as an officer. (N.T., 8/5/13, p. 9'1). He also had a lot of interactions

with people who were under the influence, but not in a DUI setting. (N.T., 8/5/'13, p. iI II O')\ V•-)· 11 l He was on duty on January 'l, 2013 when he was asked to assist Officer Wardle I I with the traffic stop on Thornridge Drive. (N.T., 8/5/13, pgs. 89-90). Officer Pohlig 1, I I observed that Defendant had a staggering gait, he stumbled a bit when he walked, his Ii 1 speech was slurred and he appeared to be under the influence of some sort of !I iI substance. (N.T . 8/5/13, pgs. 90-91 and 93). The officer did not get close enough to

Defendant to smell any alcohol because he was there to assist and needed to keep a

reactionary distance away from him. (N.T., 8/5/13, p. 93).

Defendant tried to.enqaqe Officer Pohlig in conversation, but the officer did not

respond. (N.T; 8/5/13, pgs. 93 and 95-96). Defendant was rambling about being the

next president and saying "mumbo jumbo." (N.T., 8/5/13, p. 94). Defendant's speech

was slurred and ver''J' incoherent. !d. "It Just didn't make any sense." Jil

13 lryian Chaudhry, a friend of Defendant for a couple of years, testified that he and

Defendant went to a ~Jew Year's Eve party on December 31, 2012 at a restaurant I j Defendant's other friend owns .. (r,J.T., 8/5/13. pgs. ·109-·110). Defendant picked up Mr. j I l Ji i Chaudhry and drove him to the restaurant. JJ;L Trlf!J arrived at about 10:00 P.M. (f\J.T., I

J, I 8/5/'13. p. 1 ·11). Defendant introduced him to some people, they ate some food and I then had a drink. l

iI orange juice and drank champagne for the rnirlnight toast. (I\J.T., 8/5/13, pgs. 1-12 .. 114).1

They left the restaurant between midnight and -1 :00 A.M. (N.T., 8/5/-13, p. 1 ·13). I I fv1r. Chaudhry was not sure if Defendant was able to safely drive; the restaurant

I owner asked him to drive Defendant, so Mr. Chaudhry drove Defendant's car when they I !! !l left. (N .T., 8/5/13, pgs. '113-11 S). He knows that Defendant talks a lot when he has iI 11 !I had too much to drink and is incapable to safely driving. (i"J.T., 8/5/13, pgs. 114-11tl). 11 i, II They first went to Mr. Chaudhry's house so that his sister could follow them to

Defendant's house. (N.T., 8/5/13, p. 113). That 1,vay Mr. Chaudhry would have a ride

home from Defendant's house in the Thornridge development. (N.T., 8/5/'13, pgs. '113

and 'i15). They arrived at Defendant's house between 1:00 A.. M. and 1:30 A.fV1. (N.T.,

8/5/13. p. 115).

Ruchi Kumar also testified as follows. Defendant is her younger brother and

they live together on Thornric!ge Drive. (N,T., 8/5/13, pgs. '117-118). Her family was 11 having a get--together at the house on the night in question (New Year's Eve), but they I Iii 11

""! 1i .L ''! ! I I, I i did not serve alcohol. (N.T., 8/5/"13, P£1S. 1 '18-'l 19). Defendant left the house about I, 10:00 P.M. and returned about 1:001\.M. (N.T., 8/5i13, p. ·119). Upon his return,

I.! I Defendant appeared normal and not under tile influence of alcohol. kL. !I iI, I Ms. Kumar stated that she was with Defendant until about 4:00 J\M. oi- 4:30 • 1 I1 fa.. fvl. because they were watching their dog and puppies. (N.T., 8/5/13, pgs. 120-121). 11 II Defendant did not have anything to drink during that time because they do not have ·1,

I iI alcohol in the house. !d.: Thereafter, she went to sleep and did not see what Defendant, - I i11I did after 4:30 /Uvl. (NT, 8/5/i3, p. ·122). i i I !i Anne Goswarny testified c.JS follows Defendant is her youngest brother. (N. T., i I 3/5/13. p. '123). On December 31, 20·12 into January 1, 20·13, she was at Defendant's I house, where her father also resides. (N.T .. 8/5/13, pgs. ·123-124). When she arrived I . I about 7:00 P.M., Defendant was there and appeared fine and not under the influence of] l alcohol. (N.T., 8/5/13, pgs. 124-125). There is no alcohol in the house. (N.T., 8/5/13. I pgs. ·125 and 127-128). Ms. Coswamy stated that her dad does not drink and would I not like it if any of his children drank. (N.T., 8/5/'13, p. 128). I She stated that Defendant left the house and returned about ·1 :00 A.M. (N.T., I 8/5/13, p. 125). Defendant appeared fine and not under the influence at that time. 19..c

Ms. Goswarny was leaving when Defendant returned so they only said hello and had

brief contact. (N.T., 8/5/13, pgs. 125-'!20). She did not see him swaying or slurring his

words. (N T., 8/5/13, p. 12G). She asked him how he got home and Defendant told her

that a friend dropped hirri off. (N.T., 8/5/13, pgs. 127-128). Ms. Goswarny did not see

Defendant between 1:30 A.fVI. and 5:30 AM. (N.T., 8/5/13, p. 128).

15 11

Defendant testified as follows. He said he was not driving under the influence of

drugs or alcohol on January 1, 2013. (N.T., 8/5/13, pqs. 130 and 'l 69). He is a thirty-

five year old entertainer and IT director. !si He holds multiple certifications in

lIi i technology, software development and LiteCyc!e. (N.T .. B/5/'13, p. 13·1 ).

11 f~egarcling December 3·1. 2012, Defendant said he was home uni ii 9:00 P .fvl.

I (N.T., 8/5i13, p. 132). He left to pick up Mr. Chaudhry and drove to Chateau Granieri,

which is a banquet facility owned by his very good friend. (N.T., 8/5/13, pgs. 132 and I I 1 170). Defendant testified that he did not have any alcoholic beverages at his house, Ii Mr. Chaudhry 's house or while driving to Chateau Granieri that ni9ht. (N.T., 8/5/13, I' 11 pgs. 132-'i33).

11 While at the venue, Defendant stated that he hung out and socially networked 1, with the entire clientele base. (N.T., 8/5/'!3, pgs. 132-133 and 171). He admitted to Ii ! < I i having a drinl: at about 10:30 P.ivl., which he got from the bar with Mr. Chaudhry. (N.T.,1

I i 8/5/13. p. 134). He had a screwdriver, a Captain and Coke and a charnpag ne toast at I midniqht. (N.T, 8/5/13, pgs. '134-135). He was an ivlC for about a half hour, during I which he was talking loudly and chatting up the crowd. l~L I At about ·12:30, Defendant and Mr. Chaudhry left the venue because Defendant Ii had finished up his toasting duties and he wasn't feeling weli. (N.T., 8/5/'13, pgs. 135-

136). When asked to describe how he was feeling, Defendant stated, "Just 1Nas11't

feeling well. I was kind of a little nauseous, exerted a lot of energy. Sornetimes when

you scream that loud behind the microphone, it kind of hits your stomach. So I just

wasn't feeling well, kind of like cold sweats." (N.T., 8/5/13, pgs. 137- ·138). Defendant

also testified that the owner of the venue, Venkat Reddy, "likes to bust rny chops a little 1 1 1 I I

11 bit. So he pretty much looked at I ryian a nrJ said, don't let him drive," (NT, 8i5/13, pqs. I

136-'137 and 172-173). Mr. Chaudhry drove Defendant's car home, (N.T., 8/5/13, pgs. I.:

172-173). I I J Defendant testified he did not have any further alcoholic beverages because he I I

I was not feeling well and just wanted to hang out. (N.T., 8/5/"13, pgs. '138 and '174). I II Once home, he watched his dog and puppies. kl. He left his residence at 5:00 /\.iv1. to I I J go to WaWa for Tylenol, water and a pack of cigarettes. (N.T., 8/5/13, pgs. ·139 and ! 11· I

il I i' 174). The 'vVaWa is a mile to a mile and a half from his house. (N.T., 8/5/13, p. 140). I iI On his way back home, Defendant claimed he was driving down G.O. Carlson j

! I Boulevard approaching Municipal Drive cloi11g the normal speed limit, about 35 or 37 j

111 miles an hour. (f'J.T., 8/5/13, pgs. '140-14.1). He 1.;vas aware that there was a stop si9n I at the intersection. (N.T., 8/5/13, p. 140). He testified that he stopped behind the stop I ;I sign without applying his breaks in a hard manner. (N.T., 8/5/'13, p. 141 ). I iI I iI He did not see a vehicle to the right side of his vehicle. Id. Defendant testified

'1 that he saw a cf ear intersection without any vehicles. (NT, 8/5/'13, p. 142). After the I intersection, he was traveling east and saw police strobe lights tum on from the police

station parking lot (NT, 8/5/13, pgs. 141-142 and 144). He didn't thinic much about it I'I ! because he thought they may be going out on a call, so he continued to travel normally J

i at about 3!1 or 2,7 mph. (NT, 8/5/'13, p. 145).

I Defendant testified that he continued to travel on G.O. Canson Boulevard until I he made a left turn into the Thornbridge Development. Js;L He then noticed the police I

iiqhts and pulled over. (N.T., 8/5/13, p. 146). He exited his car because Officer Wardle

I pulled up behind him even though he knew that the standard procedure when your :I I! !I II 11

Ii 17 I I vehicle is stopped by police that you are to not exit the vehicle. (N.T., 8/5/13, pgs. 148 I/ lI 11 and 177). Defendant asked the officer if everything was okay. (N.T .. 8/5/13, p. 148). Ii :! ! i Defendant admitted to the officer that he had two drinks a! a friend's place, the mixed 1

Ji drink and charnpagne. (N.T., 8/5/13, pgs. 148-149). Defendant stated that he tried to 1 I i ' I say somethinq to Officer Pohlig because he has run into him on multiple occasions in

II I 11 11 I I •. e;::t:;::::: 0 :a ~:98~:,1: ~:; s: ::~ 10 ::I.; ::: .; .~11 :he guys, a lot of I ! ' 11 ! I Defendant admitted to telling Officer V\Jardle a few times that he was running for I Ii President of the United Slates. (NT, 8/5113, pgs. 162 and 164). When asked why he I 11 i did it, Defendant responded as follows: "At that point l was pretty charged. I could I 11 I have told him I was a spawn of satan. It would have been okay because it wouldn't i I have really made an), difference. It vvas more of a sarcastic remark, rather than me just j I I I ii! I kind of randomly going off on a tangent. Multiple requests onto the entire situation of f

I: the night. nothing was really said. My word meant absolutely nothing." (N.T., 8/5/13, 1' Il pqs. ·162--163). Defendant said he was frustrated. (N.T., 8/5/13, p. 164). Defendant I 11 I also aclrnitted that he told the officer several times that he could call President Obama

to explain the situation. (N.T., 8/5/13, pgs. ·155 and 177-181).

Defendant testified that after the officer informed him that he was going to take

him for blood work, he told the officer that he "cannot go underneath the needle"

because he was battling a skin disorder with a rash. (N.T., 8/5/13, pgs. 165-·166 and

'181-182). Photos Defendant had taken of his rash 011 January 4, 2013 \Vere admitted

into evidence. (N.T., 8/5/'13, pgs. 166 and '!(37) He said they reflected what his body

looked like on January 1, 2013. (N.T., 8/5/13, p. ·167).

J. 8 11

I When asked why he was afraid to go under the needle, Defendant replied,

.I "Further infections. My mother passed away from an infected needle from a dialysis

center by getting blood MRSA when she had very similar rashes on her body. And she

I was diabetic. So I wasn't sure what these were at the time." (N.T., 8/5/13, p. 168). I I Ii I 'II. Defendant acknowledged that Officer Wardle read him the Implied Consent Fo1Tn at the j

hospital and admitted that he refused to do the blood test. (N .T., 8/5/13, pgs. 169, 181

I and 186). I11 .i I ii 11 , Defendant stated he was very concerned about getting a driving under the i influence charqe. (NT., 8/5ti3, p. 184). He is a permanent resident and a DUI :I !I conviction would affect his residency status. (t,J.T., 8i5/13, p. 185). Even though he 11 11 knew that the only way he could prove that he was not under the influence was by

IiI giving a sample of his blood, he was not willing to submit to the test. kl

The crime of driving under the influence is set forth in 75 Pa.C.S...i'.\. § 3802. !t

states that "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." 75 Pa.C.S.A. § 3802(a)(1 ). I

I Pennsylvania courts have held that "'Subsection 3802(a)('1) is an 'at the time of !j II driving' offense, requiring that the Commonwealth prove the Iollowinq elements: the

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

vehicle during the tirne when he or she was rendered incapable of safely doing so due

I

19 I! 11 II 1 l to the consumption of alcohol." Cormnonwealthv .. Teems, 74 A.3d 142. 145 11 i ·1

I I (Pa.Super. 20-13), quoting 0n•lJ!I19DY'£~{i)t!]_:[,_~\;Clid~. 985 /\.2ci 871, 1379 (Pa. 2.009). i! !I VVith respect to the type, quantum. and quality of evidence required to prove a

11 qeneral impairment violation under Section 3802(a)(1 ), the Pennsylvania Supreme I Court in Segida set forth.the following:

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 clrivtng .... 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. Blood alcohol level may be added to this list, although it is not necessary and the two hour time limit for measuring blood alcohol level does not apply. Blood alcohol level is admissible in a subsection 3801 (a)('l) 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. The weight to be assiqned 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 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 clue to consumption of alcohol-not on a particular blood alcohol level.

J9e1J1S, 74 A.3d at 145, quoting Seqida, 985 A.2d at 879.

Examining the evidence in the. record, viewed in the light most favorable to the

Commonwealth as verdict winner, it is abundantly clear that there was sufficient

evidence to support the jury's finding that Defendant was guilty of driving under the

influence of alcohol. Each element of the crime was established beyond a reasonable

doubt.

20 I'

11 Ii I! I 1 '1 Defendant's actions and behavior, including manner of driving and failing to pass

iI field sobriety tests; his demeanor at the scene; his unsolicited comments and his

II physical appearance establish that he was under the influence and incapable of safe

· 1 driving. Specifically, his driving at a high rate of speed, applying the brakes heavily at

the last second, rolling through the stop sign, failing to acknowledge the officer's ! I motions to stop, not following the officer's instruction to get back in the car, unsteady II I manner. swayinq, slurred speech, the odor of alcoholic beverage, his bizarre questions I

Il and statements to the officer and the failed field sobriety tests establish that Defendant 11 was driving a vehicle when he was incapable of safely doing so due to the consumption 11

of alcohol. 11 ;I Il ! iI It is abundantly clear that the jury rejected Defendant's version of the events and l I I iI found the other witnesses to be credible. As set forth above, the fact-finder is free to I 11 believe all, part or none of the evidence presented. The jury's determination that 1, I 11 Defendant was guilty of driving under the influence was supported by sufficient iI jl ·I I, evidence and Defendant's argument on appeal is without merit.

11 :Weight Q.f the Evidence: i I li ",A. motion for new trial on the (Founds that the verdict is contrary lo the weight of Ii the evidence, concedes that there is sufficient evidence to sustain the verdict." 11 ! i

JI ~.QlTlt}J.90.\Y_0_~l!ll.Y...:....Y1.lQ!:IJ§L 744 /\.2d 745, 751 (Pa. 2000), citing Comrr1onwealth v. It ! Whitemgn, 485 A.2d 459'.(Pa.Super. ·t984). "Thus, the trial court is under no obligation

to view the evidence in the light most favorable to the verdict winner." V'Jig_mer, 744

,, "' a· t· -n::1· A.,:.a ...... r , ..., , c1t111g Tibb I s ·v. . Fi,Q!LE., id 4r:::- or U"' .0. 31 , ~", ')8 102 . , ('1982' ), 11.- 11 , 1,02 ,S . Ct . 22-11

S.Ct. 2211. /\11 allegation that the verdict is against the weight of tile evidence is

21 11 il li i; 11 addressed by and at the discretion of the trial court. Y\'idrner, 744 A.2d at 751-752, ll i I citing Commonwealth v. Brown, 648 A.2d ·1 '177 (Pa. 1994). 11 A new trial should not be rJranted due to a mere conflict in the testimony or 11 i) I because the judge on the same facts would have arrived at a different conclusion. i

I \.!YJg_rner, 744 A.2d at 752, citing Thomp~Q.D.Lt;::J.t, of P.1."2.]ladelphia, 493 A.2d 6139, 673 I (Pa. 1 9 8 5). "A trl a I judge rn ust do more th an reassess the credibility of the witnesses I I!i i and allege that he wouid not have assented to the verdict if he were a juror. Trial j iI i, II judqes, in reviewing a claim that the verdict is against the weight of the evidence do not I Il 11 11 sit as the thirteenth juror. Rather, the role of the trial judge is to determine that iI II II 1 · 'notwitbstandlnq all the facts. certain facts are so clearly of greater weiqht that to iqnore I i I i ii · I them or to give them equal weiqht with all the facts is to deny justice." Id. !I lI' l I I '"[fa,] new trial should be awarded when the jury's verdict is so contrary to the 11

jI evidence as to shock one's sense of justice and the award of a new trial is imperative

iI so that right may be given another opportunity to prevail." Commonwealth v. Sullivan, 11 I' 820 A.2d 795, 806 (Pa.S~1per. 2003), app. denied, 833 l\.2d 143 (Pa. 2003), quoting I Ii Ii I _G.9ri1rnQL1we~ltl~Goodwine, 692 /\2d 233, 236 (Pa.Super. 1997), app. cleniecl, 700 11 11 ,l\.2d 438 (Pa. 1997). Stated another way, the evidence must be "so tenuous, vague 'i 11 ' I and uncertain that the verdict shocks the conscience of the court.' " .§ullivan, 820 A.2cl

l at 806, quoting Commonwealth .Y.J:§., 640 /\.2d 1336, 1351 (Pa.Super. 1994), app.

I, · 1 denied, 655 A.2d 986 (P~. '1994). 11 ! l In addition, the Pennsylvania Supreme Court has been clear that "appellate I: iI. I review of a wei9ht claim is a review of the exercise of discretion, not of the underlying ; I i' I I. 11 !i 11 11

l! 11 question of whether the verdict is against the weight of the evidence.';' §_ld.]llva.Q. 820 il !i ;'.\ 2d at 806; quoting :VVido,er, 744 Ji,.2d at 75'1-752. :I !I Accordingly, this court applied the above standard when reviewing the evidence

I presented at trial. Since in this claim, Defendant conceded that there was sufficient II! I I evidence to support each material element of driving under the influence, we examined I 11 the testimony of the witnesses and evidence presented to determine if the evidence I Il 11 was so tenuous, vague ind uncertain that the verdict shocks the conscience of the l J I,

I! court. i The Pennsylvania Supreme Court has clearly said that "it is tile trial court's I 11 II

11 sense of justice that must be shocked before a new trial may be granted on a claim that! II li 11 the verdict was against the weight of the evidence." ~.1!.iiiv~m. 820 /-\.2d at 807, n. ·11, I.i , ! I citing, ~rown, 648 A.2d at 1 rn·1 (Pa. 1994). After review of the evidence, this court I I I I Ii. I unequivocally determines that the guilty verdict of driving under the influence is not i ! I against the weight of the evidence. To the contrary, the evidence strongly supports the l I Il verdict. The jury's verdict on this charge is not contrary to the evidence as to shock I 11 ! I one's sense of justice. For the above listed reasons, Defendant is not entitled to a new II trial. Accordingly, this issue on appeal is without merit. I I I I: 'I 11 !I !I

I I

Ij I ·7 /.,- 7/ :; 1 I l1ic")· l j DATE: / ·-----

. I! 1 ''')":) L ..) 11