Com. v. Ressman, J.

• Court: Superior Court of Pennsylvania
• Decided: April 26, 2021
• Docket: 1198 EDA 2020
• Status: Unpublished

Opinion

J-S53042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA, : PENNSYLVANIA : Appellant : : : v. : : : No. 1198 EDA 2020 JASON RESSMAN

Appeal from the Order Entered May 26, 2020 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002705-2018

BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 26, 2021

The Commonwealth appeals from the May 26, 2020 order of the Court

of Common Pleas of Monroe County (trial court) granting in part and denying

in part the post-sentence motion filed by Jason Ressman (Ressman). The

Commonwealth argues that the trial court abused its discretion in holding that

Ressman’s conviction for driving under the influence (DUI)—BAC 0.10%-

0.159% was against the weight of the evidence and that his conviction for

careless driving was supported by insufficient evidence. We affirm.

I.

We glean the following facts from the certified record. On April 29,

2018, Pennsylvania State Police (PSP) Trooper Mark Bower (Trooper Bower)

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* Retired Senior Judge assigned to the Superior Court. J-S53042-20

was on patrol when he observed a vehicle swerving back and forth between

the fog line and the double-yellow line on a two-lane road. Notes of

Testimony, 10/15/19, at 40. When he ran the license plate for the vehicle,

he learned that the registered owner was a woman whose driver’s license was

suspended. Id. After following the vehicle for approximately one mile, he

initiated a traffic stop. Id. at 41. Ressman was driving the vehicle at the

time. Id.

When speaking with Ressman, Trooper Bower observed a strong odor

of alcohol and noticed that his eyes were glassy and bloodshot and his speech

was slurred. He had Ressman perform standard field sobriety tests and

observed several cues suggesting that Ressman was intoxicated. Trooper

Bower then requested that Ressman submit to a preliminary breath test, but

Ressman refused and requested a blood test instead. Trooper Bower took

Ressman to the Monroe County DUI Center for a blood test, which was

performed approximately one hour after the traffic stop. Id. at 49-50.

Kenneth Mayberry (Technician Mayberry), an employee at the PSP’s

Wyoming Regional Crime Laboratory, testified at trial as an expert regarding

blood alcohol concentration (BAC). Id. at 97-98. Technician Mayberry tested

Ressman’s sample twice via dual-column gas chromatograph to ascertain his

BAC and obtained results of 0.1118% and 0.1114%. Id. at 99-101. He

concluded that Ressman’s BAC was 0.111% plus or minus 0.014. Id. at 104.

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The Commonwealth charged Ressman with DUI—general impairment,

DUI—BAC 0.10%-0.159%, driving without a license, and careless driving.1

Prior to trial, the Commonwealth filed a motion for leave to amend the criminal

information to add a count of DUI—BAC 0.08%-0.09% based on the margin

of error for Ressman’s BAC test results.2 The trial court granted the motion

and subsequently instructed the jury regarding the different BAC tiers in the

DUI statute. Id. at 184-85. The verdict slip was styled as follows for the

second count of DUI:

2. DUI—Blood Alcohol Concentration ____ GUILTY _____ NOT GUILTY Greater than 0.08% If you find the Defendant guilty of this ____ From 0.08% to 0.10% offense, you should select the highest range of alcohol concentration that has ____ From 0.10% to 0.159% been proven beyond a reasonable doubt and place a check mark on the blank ____ 0.16% or above line next to that range. All other blank lines should remain empty.

Following reception of the evidence, the jury found Ressman not guilty

of DUI—general impairment and guilty of DUI—BAC greater than 0.08%, but

specifically found that the Commonwealth had proven beyond a reasonable

doubt that Ressman’s BAC was between 0.10% and 0.159%. Id. at 193-94.

1 75 Pa.C.S. §§ 3802(a)(1), 3802(b), 1501(a), & 3714(a).

2 75 Pa.C.S. § 3802(a)(2). Additionally, the Commonwealth moved to amend the information to reflect that all DUI offenses were third offenses for grading purposes.

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Immediately following the verdict, the trial court adjudicated Ressman not

guilty of driving without a license and guilty of careless driving.

On December 6, 2019, the trial court sentenced Ressman to 90 days to

24 months of incarceration followed by two years of probation for the count

of DUI. Ressman filed a timely post-sentence motion seeking, inter alia,

judgment of acquittal or a new trial on the DUI charge. He argued that the

margin of error for the BAC results indicated that his actual BAC could have

been below the 0.10% threshold, so the evidence was insufficient to support

his conviction or, in the alternative, the verdict was against the weight of the

evidence. He also motioned for arrest of judgment or a new trial on the

careless driving charge, arguing that the evidence at trial did not support the

trial court’s verdict.

On May 26, 2020, the trial court issued an order granting Ressman’s

motion for a new trial on the DUI charge, finding that the jury’s verdict was

against the weight of the scientific evidence presented at trial. The trial court

primarily relied on Commonwealth v. Landis, 89 A.3d 694 (Pa. Super.

2014), and Commonwealth v. Sibley, 972 A.2d 1218 (Pa. Super. 2009), in

holding that Ressman had raised a meritorious weight claim based on the

margin of error for the BAC results. Additionally, the trial court granted the

motion for arrest of judgment on the careless driving charge and held that

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there was insufficient evidence set forth at trial to support that conviction.3

The Commonwealth filed a timely notice of appeal4 and it and the trial court

have complied with Pa.R.A.P. 1925.

II.

On appeal, the Commonwealth raises five issues which we have

reordered for ease of disposition:

 whether the trial court abused its discretion by finding that the guilty verdict for the charge of DUI—BAC 0.10%-0.159% was against the weight of the evidence;

 whether the trial court abused its discretion in setting aside the jury’s credibility determination;

 whether instead of granting a new trial the trial court should have adjudged Ressman guilty of the lesser-included offense of DUI—BAC 0.08%-.010%;

 whether the trial court misapplied case law in holding that it could not find Ressman guilty of the lesser-included offense; and

 whether the trial court abused its discretion by granting Ressman’s motion for arrest of judgment on the charge of careless driving.

3Ressman raised several other claims of error in the motion which were denied as moot.

4 See Pa.R.A.P. 311(a)(6) (an appeal may be taken as of right from “an order in a criminal proceeding awarding a new trial. . . where the Commonwealth claims that the trial court committed an error of law”).

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A.

As the Commonwealth’s first two issues on appeal are related, we

address them together.5 The Commonwealth argues that the trial court

abused its discretion and misapplied prevailing case law when it determined

that the jury’s guilty verdict for DUI—BAC 0.10%-0.159% was against the

weight of the evidence because those results were outside the margin of error.

It contends that the gas chromatography testing procedure used in this case

is more reliable than the testing procedure the prosecution had relied upon in

Landis. Pointing out that its expert witness testified that he tested Ressman’s

blood sample twice, obtaining BAC results of 0.1118% and 0.1114%, the

Commonwealth argues that the jury heard all evidence related to the test

results and the possible margin of error and ultimately chose to credit

Technician Mayberry’s testimony that Ressman’s BAC exceeded 0.10%. It

5 When evaluating a challenge to the weight of the evidence to support a conviction, this Court does not reweigh the evidence presented at trial, but rather evaluates the trial court’s denial of the motion for a new trial for an abuse of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). An abuse of discretion occurs “where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.” Id. (citation omitted). “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.” Id.

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contends that the trial court abused its discretion because it disregarded that

credibility determination when ruling on the weight claim.6

In ruling on the post-sentence motion, the trial court reviewed two cases

from this Court distinguishing between sufficiency and weight claims

predicated on the margin of error for BAC test results. See Opinion on Post-

Sentence Motion, 5/26/20, at 5-9. In Commonwealth v. Sibley, 972 A.2d

1218, 1219 (Pa. Super. 2009), the defendant was convicted of DUI—BAC

greater than 0.16%. At trial, a laboratory employee testified that the

defendant’s blood test had revealed a BAC of 0.162%, and the coefficient of

variation7 for the test result indicated that his actual BAC could have fallen

6 In reaching a verdict, the fact-finder is entitled to weigh the evidence and determine the credibility of the witnesses, and a new trial should not be granted merely because the trial court would have reached a different verdict. Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015); Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “In order for a defendant 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.” Talbert, supra, at 546 (citation omitted). However, in considering a motion for a new trial based on the weight of the evidence, the trial court “is under no obligation to view the evidence in the light most favorable to the verdict winner.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “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.” Talbert, supra, at 546 (citations omitted).

7“The coefficient of variation relates to the precision of the testing equipment. The significance of the coefficient of variation is that, if the equipment were used to take multiple tests on a single sample, those tests would likely yield

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anywhere in the range of 0.157% to 0.167%. Id. The defendant appealed,

claiming that the evidence was insufficient to support his conviction because

his actual BAC could have fallen below that 0.16% threshold.

On review, this Court held that the range of variation implicates the

weight of the evidence to support a conviction, not the sufficiency of the

evidence. Id. We concluded that “[the defendant’s] argument would demand

a test result so high and/or a coefficient of variation so low that his actual BAC

could not possibly have been beneath 0.160%. The law simply does not

require this level of certainty in criminal verdicts.” Id. at 1220. The fact-

finder was entitled to weigh the BAC test result in the context of the coefficient

of variation and conclude that the Commonwealth had proven beyond a

reasonable doubt that the defendant’s BAC exceeded 0.16%.

Sibley, however, involved a claim that the evidence was insufficient to

support the defendant’s conviction. In Commonwealth v. Landis, 89 A.3d

694 (Pa. Super. 2014), we addressed an analogous claim to the situation

herein, where the defendant challenged the weight of the evidence to support

his conviction. In Landis, the defendant was convicted of DUI—BAC greater

than 0.16% based on a BAC test result of 0.164%. Id. at 697. The evidence

at trial established that the testing method had a margin of error of ten

somewhat differing results all within a certain range.” Commonwealth v. Sibley, 972 A.2d 1218, 1219 (Pa. Super. 2009).

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percent, reflecting a possible range for the defendant’s BAC between 0.147%

and 0.180%. Id. at 697-98. Following his conviction, the defendant appealed

and claimed that the weight of the BAC evidence did not support his conviction

for DUI—BAC greater than 0.16%.

We agreed, finding that “the trial record did not contain a reasoned basis

for accepting the specific reading of 0.164% as either accurate or precise.

There was no support for a finding that the reading registered by the Avid

Axsym machine was any more reliable than the possible blood-alcohol levels

within the 10% margin of error.” Id. at 701. Because there was no evidence

to allow the jury to more accurately determine the defendant’s BAC within the

possible margin of error, we concluded that the verdict must have been based

on impermissible speculation as to the BAC element of the offense. Id. As a

result, we vacated the conviction and remanded for a new trial.

Here, the BAC evidence was admitted through Technician Mayberry,

who tested the samples of Ressman’s blood. Technician Mayberry described

the process of testing a blood sample for BAC with a dual-column

chromatograph. Notes of Testimony, 10/15/19, at 98-99. He explained that

he tested Ressman’s blood sample twice, obtaining BAC results of 0.1118%

and 0.1114%. Id. at 100. In his final report, he concluded that Ressman’s

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BAC was 0.111% “with an uncertainty of plus or minus 0.014.”8 Id. at 105.

On cross-examination, Technician Mayberry confirmed that the test results

reflected the BAC at the time the blood was drawn and could indicate an actual

BAC of up to 0.125% or as low as 0.097%. Id. at 112. There was no further

evidence regarding the possible range of variation for the BAC or whether any

particular value within that range was more likely to represent Ressman’s

actual BAC.

In addressing the Commonwealth’s claim of error in its opinion pursuant

to Pa.R.A.P. 1925(a), the trial court explained:

The margin of error was calculated in the same report presented to prove [Ressman’s] BAC. It formed an intrinsic part of the report’s claim to have measured a BAC. To accept on result of that measurement while rejecting the companion result of the same measurement would be arbitrary. Whatever credibility the one has must go to the credibility of the other, so that the BAC is accepted, then the margin of error must be accepted to the same extent. The only way to discredit the margin of error is to discredit the method used to measure BAC.

Furthermore, the record contains no evidence to show whether the uncertainty tends to make the reported percentage err in the upward or downward direction, or by what amount within the margin of error. Without such information, a fact-finder has no basis to accept the interpretation that [Ressman’s] actual BAC lies closer to the reported value than to 0.08%.

8The written report, which the Commonwealth admitted as evidence, further noted that “measurement uncertainty is reported at a 99.73% level of confidence for all blood alcohol analyses.” Commonwealth’s Exhibit 3, 5/29/2018 (unnecessary capitalization omitted).

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Trial Court Opinion, 7/1/20, at 4-5. The trial court’s reasoning mirrors that of

this Court in Landis, supra, and it did not abuse its discretion in granting

Ressman’s motion for a new trial.

Just like in Landis, the Commonwealth’s BAC evidence established a

possible range of variation that traversed two tiers of DUI offenses. In

Landis, we concluded that the verdict was based on impermissible speculation

regarding the defendant’s actual BAC within the range of variation, as there

was no evidence at trial to place the defendant’s actual BAC anywhere specific

within the range. Landis, supra, at 701. Thus, the weight of the evidence

did not support the conclusion that the defendant’s BAC was above or below

0.16%. Similarly, Technician Mayberry’s testimony did not establish that any

particular value within the range of variation was more likely than any other,

and no further evidence was admitted at trial to allow the jury to make a more

precise determination about Ressman’s BAC. While the jury apparently

credited Technician Mayberry’s testimony in choosing to convict, it was not an

abuse of discretion for the trial court to set aside the jury’s credibility

determination because the standard for deciding a weight claim does not

require the trial court to view the evidence in the light most favorable to the

Commonwealth.9 See Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

9 The trial court correctly concluded that the BAC evidence was sufficient to support the conviction for DUI—BAC 0.10%-0.159% because the jury credited Technician Mayberry’s testimony, and it, therefore, denied Ressman’s post-

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2000). Because the trial court correctly applied the law, it did not abuse its

discretion in concluding that the guilty verdict was based on speculation

regarding Ressman’s actual BAC.

B.

The Commonwealth also contends that the trial court erred in finding

that it could not adjudge Ressman guilty of the lesser-included offense of

DUI—BAC 0.08%-0.10% but rather was constrained to the remedy of granting

a new trial. The Commonwealth argues that the uncontroverted evidence at

trial established that Ressman’s BAC was at least above 0.08%. It contends

that the jury made this factual finding when it convicted Ressman of the

second DUI count, which was styled generally on the verdict slip as “DUI—

Blood Alcohol Concentration Greater than 0.08%.” Based on the styling of the

verdict slip, the Commonwealth contends that the jury necessarily found

Ressman guilty of DUI—BAC 0.08%-0.10%. Instead of granting a new trial,

the Commonwealth contends that the trial court should have found Ressman

guilty of that lesser-included offense.

The DUI statute identifies three distinct offenses based on different tiers

of a defendant’s BAC. A general impairment BAC offense requires proof of a

BAC of “at least 0.08% but less than 0.10%.” 75 Pa.C.S. § 3802(a)(2). A

sentence motion for arrest of judgment. See Opinion on Post-Sentence Motion, 5/26/20, at 6, 12 (citing Sibley, supra).

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“high rate of alcohol” DUI offense requires proof of a BAC of “at least 0.10%

but less than 0.16%.” 75 Pa.C.S. § 3802(b). Finally, the “highest rate of

alcohol” DUI offense requires proof of a BAC that is “0.16% or higher.” 75

Pa.C.S. § 3802(c). This Court has held that lower BAC offenses are lesser-

included offenses of the higher-tier offenses, as the crimes only differ as to

the BAC the Commonwealth is required to prove beyond a reasonable doubt

at trial. Commonwealth v. Houck, 102 A.3d 443, 453 (Pa. Super. 2014).

That means the general impairment BAC offense in § 3802(a)(2) is a lesser-

included offense of the high rate of alcohol DUI offense outlined in § 3802(b).

Here, the Commonwealth initially charged Ressman with one count of

DUI—general impairment and one count of DUI—BAC 0.10%-0.159%. Prior

to trial, the Commonwealth moved to amend the information to add a count

of DUI—BAC 0.08%-0.10%. See Motion for Leave to Amend the Criminal

Information, 10/10/19. Following oral argument on the morning of trial, the

trial court granted the Commonwealth leave to amend the information. See

Order, 10/15/19. However, the Commonwealth did not file the amended

information until the day after trial, when the jury’s verdict had already been

recorded and it did not include the offense of DUI—BAC 0.08%-0.10% in the

amended information. See Verdict, 10/15/19; Amended Information,

10/16/19. Subsequently, Ressman was sentenced only for the count of DUI—

BAC 0.10%-0.159% and careless driving. See Sentencing Order, 12/6/19.

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After sentencing, Ressman filed a post-sentence motion challenging the

sufficiency and weight of the evidence to support his conviction for DUI—BAC

0.10%-0.159%, the single DUI offense for which he was convicted and

sentenced. In disposing of these claims, the trial court correctly distinguished

between the standard governing sufficiency and weight claims and the

appropriate relief for each type of claim based on Sibley, supra, and Landis,

supra. See Opinion on Post-Sentence Motion, 5/26/20, at 5-6; Widmer,

supra, at 751 (explaining that a successful sufficiency claim results in

complete discharge while a successful weight claim results in a new trial). In

Landis, this Court remanded for a new trial on the charge of DUI—BAC greater

than 0.16%, as we concluded that the verdict was against the weight of the

evidence for that charge only. Landis, supra, at 701. The trial court correctly

reached the same resolution here, where the weight of the evidence did not

support the jury’s verdict as to the charge of DUI—BAC 0.10%-0.159% only.10

No relief is due.

10 The Commonwealth argues that because the jury checked “guilty” on the verdict slip next to “DUI—Blood Alcohol Concentration Greater than 0.08%,” it implicitly found that Ressman was at least guilty of DUI—BAC 0.08%-0.10% as a lesser-included offense. However, the trial court instructed the jury regarding this lesser-included offense and the jury ultimately chose to convict Ressman on the higher charge. Notes of Testimony, 10/15/19, at 183-85. Moreover, the subcommittee note to the standard jury instruction that the verdict slip was based upon makes clear that the form was chosen merely to allow the jury to clearly determine what BAC level had been proven beyond a reasonable doubt. See Pennsylvania Suggested Standard Criminal Jury Instructions § 17.3802(A)(2), note (“This instruction was drafted based on the

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C.

Finally, the Commonwealth claims that the trial court erred in granting

the post-sentence motion in arrest of judgment related to the careless driving

charge.11 However, the Commonwealth mischaracterizes the trial court’s

ruling by contending that the trial court improperly granted relief based on the

weight of the evidence, arguing that this decision was improper when the trial

court sat as fact-finder for the offense at trial. See Commonwealth’s Brief at

28. The trial court’s opinion and order disposing of the post-sentence motion

granted relief based on the sufficiency of the evidence to support the careless

driving charge, not the weight of the evidence. See Opinion on Post-Sentence

Motion, 5/26/20, at 9-10, 12. As discussed in Part II.A & II.B, supra,

challenges to the sufficiency and weight of the evidence are distinct,

assumption that a typical jury trial on these charges will require the jury to determine conflicting allegations about the defendant’s [BAC] at the time of the alleged offense. Accordingly, the instruction is drafted in order to facilitate the jury’s determination of this fact. It is assumed that the jury will be given a special verdict form on which to indicate its findings.”). Finally, while a jury sitting as fact-finder may elect to convict on an uncharged lesser-included offense, the Commonwealth cites no authority for the proposition that the trial court may reduce a jury’s verdict to a lesser-included charge when ruling on a weight claim. Commonwealth v. Houck, 102 A.3d 443, 449-50 (Pa. Super. 2014).

11 When reviewing a trial court’s grant of a motion in arrest of judgment, “we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, is sufficient to support all elements of the offense.” Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa. Super. 2011). We review the entire trial record and all evidence in the light most favorable to the Commonwealth. Id. (citation omitted).

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implicating different scopes and standards of review and necessitating

different relief. See also Widmer, supra. To the extent that the

Commonwealth intended to challenge the trial court’s decision regarding the

sufficiency of the evidence, this claim is waived for failure to develop it in its

brief. See Pa.R.A.P. 2119; Commonwealth v. Miller, 212 A.3d 1114, 1131

(Pa. Super. 2019).

Moreover, even if the Commonwealth had preserved this claim we would

conclude that the trial court did not err in granting the motion in arrest of

judgment. “When ruling on a motion in arrest of judgment, a trial court is

limited to ascertaining the absence or presence of that quantum of evidence

necessary to establish the elements of the crime. At this stage in the

proceedings, the trial court is limited to rectifying trial errors, and cannot make

a redetermination of credibility and weight of the evidence. The authority of

a trial court over a nonjury verdict is no greater than the authority over a jury

verdict.” Commonwealth v. Melechio, 658 A.2d 1385, 1387 (Pa. Super.

1995) (cleaned up). As a result, the trial court was limited to examining the

trial record to determine whether the evidence was sufficient to support the

conviction for careless driving beyond a reasonable doubt. Id.

A person is guilty of careless driving if he or she “drives a vehicle in

careless disregard for the safety of persons or property.” 75 Pa.C.S.

§ 3714(a). Careless disregard “implies less than willful or wanton conduct but

more than ordinary negligence or the mere absence of care under the

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circumstances.” Commonwealth v. Ford, 141 A.3d 547, 556 (Pa. Super.

2016) (citation omitted) (holding that evidence was sufficient to establish

careless driving when defendant drove at 52 MPH in a residential

neighborhood and tried to drive away from a traffic stop while an officer was

kneeling on the passenger seat with the door open); see also

Commonwealth v. Gezovich, 7 A.3d 300, 302 (Pa. Super. 2010) (holding

that “mere occurrence of an accident” was insufficient to establish careless

disregard when there was no further evidence regarding defendant’s driving).

Trooper Bower testified at trial regarding Ressman’s driving prior to the

traffic stop. Trooper Bower observed Ressman’s vehicle “swerving from the

double yellow line to the fog line, back and forth, with oncoming traffic coming

the other way.” Notes of Testimony, 10/15/19, at 40. He followed the vehicle

for three-quarters of a mile to a mile and observed the vehicle “swerving

within the lane and going from line to line.” Id. at 41. It is unclear from the

record how many times the vehicle weaved within the lane, but Trooper Bower

testified that when he observes weaving, he initiates a stop immediately to

prevent the driver from crossing into the other lane and causing an accident.

Id. at 64. He clarified that Ressman did not cross into the other lane, but his

tires did appear to touch the double yellow line. Id. at 65. After running the

license plate, he also determined that the registered owner of the vehicle had

an expired driver’s license. Id. at 40. Trooper Bower offered no further

testimony regarding Ressman’s driving, such as whether he was speeding,

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obeying traffic signals or whether he signaled when he turned into a parking

lot for the traffic stop.

The trial court correctly concluded that without more evidence that

Ressman’s vehicle was weaving within its lane was insufficient to establish the

“more than ordinary negligence or the mere absence of care under the

circumstances” required for a conviction for careless driving. Ford, supra.

Simply weaving within a lane of traffic, without entering the opposing lane,

causing damage to persons or property, or requiring other drivers to make

maneuvers to avoid incident does not rise to the level of careless driving.12

The trial court did not err in granting the motion for arrest of judgment on this

claim.13

12We also note that the jury acquitted Ressman of the charge of DUI—general impairment under 75 Pa.C.S. § 3802(a)(1), which differs from DUI—BAC 0.10%-0.159% in that it requires proof that the defendant was “incapable of safely driving.”

13 We have previously concluded that “intoxication alone is insufficient to support a reckless driving conviction.” Commonwealth v. Jeter, 937 A.2d 466, 468 (Pa. Super. 2007) (emphasis added). Careless driving is a lesser- included offense of reckless driving and requires a mens rea of “careless disregard,” rather than “willful or wanton disregard.” Commonwealth v. Bullick, 830 A.2d 998, 1001-02 (Pa. Super. 2003). While the standard for establishing careless driving is lower, when considering whether driving under the influence is reckless per se, this Court observed “[s]ome people may respond to alcohol by driving in a brazen and inherently reckless manner.... Other individuals may not exhibit any distinguishable difference in their driving even though they may be legally intoxicated. Indeed, some more prescient individuals, aware that they have ingested some alcohol, may even compensate for their consumption by being very cautious in their driving.” Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 n.4 (Pa. Super.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/26/21

1998). Thus, “other tangible indicia of unsafe driving to a degree that creates a substantial risk of injury which is consciously disregarded” is required to prove recklessness while driving under the influence. Id. at 1083. Even under the standard of careless driving, we conclude that while Ressman’s BAC indicated that he was driving under the influence, the evidence regarding his driving did not establish “more than ordinary negligence or the mere absence of care under the circumstances.” Ford, supra.

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