Com. v. Peterson, J.

• Court: Superior Court of Pennsylvania
• Decided: April 7, 2025
• Docket: 2023 EDA 2024
• Status: Unpublished

Opinion

J-S09034-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES F. PETERSON : : Appellant : No. 2023 EDA 2024

Appeal from the Judgment of Sentence Entered July 1, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004276-2023

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

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 7, 2025

Appellant, James F. Peterson, appeals from the Judgment of Sentence

Entered on July 1, 2024, in the Court of Common Pleas of Delaware County

following his conviction at a non-jury trial on the charge of driving while under

the influence (“DUI”) of alcohol: general impairment / incapable of driving

safely.1 After careful review, we affirm.

The relevant facts and procedural history are as follows: Following his

arrest on June 1, 2023, Appellant, who was represented by counsel, proceeded

to a non-jury trial on June 13, 2024.

At trial, Officer Justin Major of the Media Borough Police Department

testified that On June 1, 2023, at 2:48 A.M., his department had been notified

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(a)(1). J-S09034-25

of a male sleeping behind the wheel of a vehicle stopped at 6 State Road in

Media. N.T., 6/13/24, at 7. The officer and his partner responded, and upon

arrival observed a 2011 gold Chevy Malibu parked between the roadway and

the entrance of a parking lot servicing several closed businesses. The vehicle

was parked parallel to the roadway and perpendicular to the parking spaces

in the lot. The vehicle’s engine was turned off, but the hood and quarter panel

of the driver’s side were warm to the touch. Id. at 7-12. The vehicle’s front

and rear lights were on, and the keys were left in the ignition. Id.

Officer Major observed Appellant asleep in the driver’s seat of the

vehicle, with his head slumped towards the floor. The Officers attempted to

speak with Appellant through the window of his vehicle, but they were unable

to rouse him until they had struck the window several times. Id. at 12. Upon

waking, Appellant stared blankly at the officers for thirty seconds while the

officers attempted to get Appellant to open the vehicle’s door. Id. at 13.

Appellant then reached for the gear shift, which prompted the officers to open

the door themselves. Upon opening the door, the officers smelled alcohol

emanating from the interior driver’s side of the vehicle. Id. at 13, 15.

Once the door had been opened, the Officers began speaking with the

Appellant. Officer Major testified that Appellant appeared confused, and he

was slow to respond to questions. Appellant’s responses were unclear and

fragmented. Further, Appellant gave multiple contradictory statements

regarding his activities earlier that evening. First, Appellant said he was going

to work, but then later stated that he was coming home from work, before

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finally telling the officers he did not have work that day, “he was going out

from home.” Id. at 14. Officer Major noted that Appellant’s eyes were glassy,

yellowed, and bloodshot. His movements were slow and exaggerated, and

Appellant needed to use the exterior of the vehicle to maintain his balance. As

Appellant walked alongside the vehicle, Officer Major noted Appellant’s gait

was unsteady, and Appellant spent two minutes tucking in his shirt. Id. at 15-

16.

Officer Major then administered Field Sobriety Tests including the Walk

and Turn test, and the One-legged Stand test. Both tests yielded multiple

clues of impairment. Upon request, Appellant consented to a Preliminary

Breath Test (“PBT”), but he immediately thereafter became uncooperative and

repeatedly turned away from the machine, allowing Officer Major to collect

only an abbreviated sample.

Appellant was subsequently arrested. Officer Major attempted to read

Appellant the DL-26B form regarding chemical testing, but Appellant

repeatedly spoke and shouted over the officer. He would not respond to the

request for consent. Officer Major deemed said conduct a denial of consent.

At trial, Officer Major offered his opinion that Appellant was under the

influence of alcohol to a degree that he was unable to drive safely. Id. at 25.

Appellant elected to take the stand at trial, and he testified that on the

evening in question he was on his way home from a prayer meeting in

Philadelphia, having left his church between 11:00 P.M. and 12:00 A.M.

Appellant stated he drank a vitamin drink while driving. Appellant testified

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that when he had taken this vitamin drink in the past, it had made him more

energetic. However, Appellant reported that on this occasion he took more

than his usual dose, and he was rendered drowsy and disoriented. Id. at 46.

Upon experiencing this disorienting effect, Appellant pulled over and parked

where the officers found his vehicle.

A bottle of this vitamin drink was offered into evidence at trial. Id. at

36. The label lists among the drink’s ingredients “dexpanthenol.” Id. at 41.

Upon request of Appellant’s trial counsel, the trial court took judicial notice of

the fact that dexpanthenol is an “alcohol analog,” and is an “alcohol

derivative.” Id.2 Mr. Peterson testified that he did not read any warning labels

on the vitamin drink; upon inspection at trial, it was noted that one such

warning advised that the drink may cause drowsiness. Id. at 52. Appellant

was prompted to smell the bottle during his testimony, and he stated “[i]t has

a strong odor.” Id. at 39. The attorney for the Commonwealth and trial court

were also prompted to smell the bottle, at which time the Court noted “let the

record reflect […] it doesn’t smell like alcohol typically to me. It has a very

strong vitamin smell,” which the Court clarified “is like an iron smell.” Id. at

56.

2 Appellant’s trial counsel did not ask the trial court to take judicial notice of

any properties or clinical effects of dexpanthenol. No expert testimony was adduced addressing the same. When asked whether dexpanthenol could affect the result of the attempted PBT, Officer Major responded “I’m unsure.” Id. at 59-60.

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At the conclusion of the non-jury trial, the trial court found Appellant

guilty of DUI: general impairment / incapable of driving safely pursuant to 75

Pa.C.S.A. § 3802(a)(1). On July 1, 2024, Appellant was sentenced to a term

of six months’ probation with the first 30 days on house arrest with electronic

monitoring, and a $500.00 fine was imposed. Appellant timely filed his Notice

of Appeal on July 30, 2024.

Appellant sets forth the following sole issue in his Statement of Matters

Complained of on Appeal:

Whether the evidence was sufficient to sustain the sole charge of driving under the influence of alcohol to a degree which rendered Appellant incapable of safely driving where the Commonwealth failed to prove beyond a reasonable doubt that Appellant intentionally ingested any alcohol which caused him to drive unsafely?

Appellant’s brief at 4.

While in the argument portion of his brief, Appellant alleges the evidence

was insufficient to sustain his DUI conviction under § 3802(a)(1), this Court

agrees with the sound assessment of the trial court: “[t]he real crux of

[Appellant’s] argument is that the Commonwealth did not prove that the

vitamin drink Appellant consumed contained alcohol.” Trial Court Opinion, filed

9/27/24, at 6. Appellant’s argument on that point is therefore without merit,

as proving that allegation was not incumbent upon the Commonwealth.

This Court’s standard of review when considering a challenge to the

sufficiency of the evidence requires us to look at the evidence in the light most

favorable to the Commonwealth as the verdict winner, and to determine

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whether the evidence presented, both actual and circumstantial, was sufficient

to enable a fact-finder to find every element of the crime charged beyond a

reasonable doubt. See Commonwealth v. O’Brien, 939 A.2d 912 (Pa.Super.

2007).

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.

Id. at 913-914 (quotation omitted).

Further, the trial court, as the finder of fact, is free to believe all, some,

or none of the evidence presented and is free to determine the credibility of

the witnesses. Commonwealth v. Dailey, 828 A.2d 356 (Pa.Super. 2003).

In conducting a review of the sufficiency of the evidence, the appellate court

may not weigh the evidence and substitute its judgment for the fact-finder’s.

Commonwealth v. Baumgartner, 206 A.3d 11, 14-15 (Pa.Super. 2019).

In the case sub judice, Appellant challenges his DUI conviction pursuant

to 75 Pa.C.S.A. § 3802(a)(1). The relevant statutory provision provides as

follows:

§ 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.

75 Pa.C.S.A. § 3802(a)(1) (bold in original).

In order to sustain a conviction under § 3802(a)(1), the Commonwealth

must prove beyond a reasonable doubt two elements: “(1) the defendant was

operating a motor vehicle, (2) after imbibing a sufficient amount of alcohol

such that the individual was rendered incapable of safely operating the motor

vehicle.” Commonwealth v. Segida, 985 A.2d 871, 876 (Pa. 2009).

Regarding the first element, this Court has previously held:

The term “operate” requires evidence of actual physical control of either the machinery of the motor vehicle or the management of the vehicle's movement, but not evidence that the vehicle was in motion. The Commonwealth can establish through wholly circumstantial evidence that a defendant was driving, operating or in actual physical control of a motor vehicle. Courts review a combination of the following factors to determine whether a person had “actual physical control” of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle. A determination of actual physical control of a vehicle is based upon the totality of the circumstances.

Commonwealth v. Fallon, 275 A.3d 1099, 1105 (Pa.Super. 2022) (citations

omitted).

The second element is satisfied where alcohol has “substantially

impaired the normal mental and physical faculties required to safely operate

the vehicle. Substantial impairment, in this context, means diminution or

enfeeblement in the ability to exercise judgment, to deliberate or to react

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prudently to changing circumstances and conditions.” Commonwealth v.

Palmer, 751 A.2d 223, 228 (Pa.Super. 2000). Evidence which may be

proffered regarding the second element includes, but is not limited to “the

offender’s actions and behavior, including manner of driving[;]…demeanor,

including toward the investigating officer; physical appearance, particularly

bloodshot eyes and other signs of intoxication; odor of alcohol, and slurred

speech.” Segida, 985 A.2d at 879. Refusal of chemical testing may also be

considered as evidence showing consciousness of guilt. 75 Pa.C.S.A. §

1547(e); Commonwealth v. Carabello, 325 A.3d 1025, 1031 (Pa.Super.

2024).

To the extent Appellant invites this Court to read a mens rea element

into § 3802(a)(1), we decline to do so. DUI: general impairment / incapable

of driving safely is a strict liability offense, and as such the Commonwealth

bears no burden of demonstrating that Appellant imbibed alcohol intentionally

or knowingly. Commonwealth v. Collins, 810 A.2d 698, 702 (Pa.Super.

2002) (“[T]he statute does not make use of the terms ‘intentionally,’

‘knowingly’ or ‘willfully.’ Therefore, the Commonwealth was not required to

prove that [the appellant’s] intoxication was intentional or voluntary.”)

(citations omitted)).

Following our well-established standard of review, we find that the

Commonwealth presented sufficient evidence to support Appellant’s DUI

conviction.

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To the first element, the evidence readily demonstrates that Appellant

was operating or in actual physical control of his vehicle at the time in

question. Appellant was found alone in his vehicle, sitting in the driver’s seat.

His keys were in the ignition, the vehicle’s front and rear lights were on, and

the hood and front quarter panel on the driver’s side were warm to the touch.

When roused, Appellant moved his hand to the gear shift of the vehicle.

Further, Appellant admitted both to the officers at the scene, and during his

testimony at trial, that he had driven the vehicle to where the officers had

found it, and himself. Taken together, these facts sufficiently establish the

conclusion that Appellant was operating or in actual physical control of his

vehicle.

Likewise, the Commonwealth’s evidence of impairment by alcohol was

sufficient. Appellant’s vehicle was found parked in a peculiar manner, between

the road and a parking lot – parallel to the road, and perpendicular to the

parking spots. Appellant was asleep when officers first encountered him, and

he was difficult to rouse. The interior driver’s side of the vehicle, where

Appellant had been seated, smelled strongly of alcohol, and Appellant was

manifestly impaired. Appellant’s eyes were glossy, yellowed, and bloodshot.

Further, his speech was slow, halting, and slurred. His gait was unsteady, and

the officers observed him using the exterior of his vehicle for balance. He

demonstrated multiple clues of impairment during the walk-and-turn, and the

one-legged stand field sobriety tests. Appellant gave multiple contradictory

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statements regarding his activities on the night in question, and he then gave

an additional contradictory version of events at trial. Appellant was belligerent

to and uncooperative with the officers. For example, although Appellant

initially consented to the PBT, he immediately refused to follow instructions,

thereby allowing for only an abbreviated sample to be collected by the PBT.

Appellant then continued to speak over, and eventually shout over, the officer

attempting to read him the DL-26B form, which constituted refusal to submit

to chemical testing. Further, at trial, Appellant admitted that he pulled over

his vehicle because he was feeling drowsy and “like [he] could not physically

move the vehicle.” N.T., 6/13/24, at 45. The smell of alcohol, Appellant’s

manifest impairment, his own admission of being unable to operate his vehicle

while driving, and refusal of consent to chemical tests of his breath allowed

the trial court to reasonably conclude, beyond a reasonable doubt, that

Appellant was indeed under the influence of alcohol to a degree which

rendered him incapable of safely operating his vehicle.

Wherefore, the evidence presented by the Commonwealth was sufficient

to sustain Appellant’s conviction as to both elements of DUI: general

impairment / incapable of driving safely.

That Appellant contended at trial, and maintains in his brief, that the

only substance he consumed on the night in question was the vitamin drink is

of no moment. As noted above, the trial court is permitted to believe all, some,

or none of the evidence presented and is free to determine the credibility of

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the witnesses. Dailey, supra. Therefore, the court was under no obligation

to accept Appellant’s representations, and in turn the Commonwealth was

under no obligation to prove the contents of that particular drink. 3 Certainly,

This Court is no more bound to believe Appellant than was the trial court; in

point of fact, we are precluded from substituting our judgment on the

credibility of Appellant’s assertion for the trial court’s. O’Brien, supra.

To the extent Appellant invites this Court to review the credibility

assessments of the trial court, as discussed above, such review is improper.

As the Commonwealth astutely argued in its brief, challenges to sufficiency

and challenges to weight are discrete claims, and challenges to the credibility

determinations of the trial court go to the weight of the evidence.

Commonwealth’s Brief at 10 (citing Commonwealth v. Bowen, 55 A.3d

1254, 1262 (Pa.Super. 2012)). Appellant did not preserve a challenge to the

weight of the evidence, and, therefore, any claim related thereto is waived.

See Pa.R.Crim.P. 607; Commonwealth v. Widmer, 689 A.2d 211 (Pa.

1997); and Commonwealth v. Brown, 648 A.2d 1177, 1189-1192 (Pa.

1994).

3 This is especially true where the evidence, particularly the strong smell of

alcohol emanating from the interior driver’s side of Appellant’s vehicle, taken together with the trial court’s recorded observation that the vitamin drink did not smell like alcohol, seriously undermines Appellant’s proposed intoxication- by-vitamin theory of the case.

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However, even assuming, arguendo, that Appellant properly preserved

a challenge to the weight of the evidence and subsequently presented that

question on appeal, the facts herein would not merit a new trial.

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Commonwealth v. Landis, 277 A.3d 1172, 1183-84 (Pa.Super.

2022) (citations omitted). To prevail on a challenge to the weight of the

evidence, “the evidence must be so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Commonwealth v. Talbert, 129

A.3d 536, 546 (Pa.Super. 2015) (citation omitted).

After careful consideration of the evidence of record in the instant

matter, and review of the trial court’s well-reasoned opinion, the conscience

of this Court is not disturbed by the verdict.

For all the aforementioned reasons, we conclude the evidence was

sufficient to sustain Appellant’s DUI conviction under § 3802(a)(1). We must

decline, and do decline, to reweigh the evidence or to disturb the sound

judgment of the trial court. Accordingly, we find no merit to Appellant’s issues

presented on appeal, and we affirm his judgment of sentence.

Judgement of Sentence Affirmed.

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Date: 4/7/2025

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