J-S84024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
CHRISTOPHER SHAKESPEARE
Appellant No. 511 EDA 2016
Appeal from the Judgment of Sentence Dated February 4, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003751-2015
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 21, 2016
Appellant Christopher Shakespeare appeals the February 4, 2016
judgment of sentence imposed following his conviction of two counts of
driving under the influence of alcohol. Appellant challenges the sufficiency
and weight of the evidence. We affirm.
On December 23, 2014, at approximately 3:30 p.m., Appellant rear-
ended a white car driven by Cheryl Ayares on Route 202 in the State of
Delaware. Before the collision, Ayares noticed that Appellant was driving
erratically. After the collision, Appellant got out of his car and approached
Ayares. As he stood near her car, Appellant slurred his speech and swayed.
Based on her experience and her observations of Appellant, Ayares believed
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* Former Justice specially assigned to the Superior Court. J-S84024-16
Appellant was intoxicated. Appellant said to Ayares, “Yeah, I’m drunk.”
Ayares responded, “We’ll let the police determine whether you’re drunk or
not when they get here.” Appellant then returned to his car and drove
away. Ayares noted Appellant’s license plate and gave that information to
the police. See Trial Ct. Op., 5/19/16, at 4; N.T. 12/17/15, at 9-24.
Based on information Ayares provided, State Trooper Stephanie
Waskiewicz was dispatched to Appellant’s house in Delaware County,
Pennsylvania. She arrived at approximately 5:15 p.m. She saw Appellant’s
SUV in his garage and noticed white paint transfer on the front passenger-
side bumper. See Trial Ct. Op. at 4; N.T. 12/17/15, at 50-53.
Approximately five minutes after arriving at the house, Trooper
Waskiewicz spoke to Appellant. She noticed that Appellant’s eyes were
bloodshot and glassy, and she smelled alcohol on Appellant’s breath and
person. Appellant was slurring his speech and swaying. When Trooper
Waskiewicz asked about the accident, Appellant became belligerent and
loud. Based on her training and experience, the trooper believed Appellant
was so intoxicated that he was unable to operate a vehicle safely. When she
asked Appellant about his driving that day, he admitted that he worked in
Delaware and had driven home by taking Route 202 to Route 100 and then
taking Smith Road into Pennsylvania. See Trial Ct. Op. at 5-6; N.T.
12/17/15, at 54-58, 62. Appellant said he had drunk one beer after he
arrived home. N.T. 12/17/15, at 56.
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At approximately 5:21 p.m., Appellant told Trooper Waskiewicz that he
had been home for approximately 45 minutes to an hour. Trooper
Waskiewicz called Trooper Gibson and asked him to bring a portable breath
test (PBT). Trooper Gibson arrived at approximately 5:45 p.m. and
administered the PBT, which tested positive for alcohol. At that point,
Appellant became very agitated and had to be restrained. Trial Ct. Op. at 5;
N.T. 12/17/15, at 58-60, 69.
Appellant was arrested, handcuffed, and transported to Riddle
Memorial Hospital, where he consented to a blood draw. Testing of the
blood sample revealed a blood alcohol content (BAC) of 0.123%. Trial Ct.
Op. at 5; N.T. 12/17/15, at 60-62; Exhibit C-1 (stipulation to lab report).
After a non-jury trial on December 17, 2015, Appellant was convicted
under two provisions of the Vehicle Code prohibiting driving under the
influence of alcohol, 75 Pa. C.S. § 3802: Section 3802(a)(1), which prohibits
driving after imbibing sufficient alcohol to cause general impairment, and
Section 3802(b), which prohibits driving after imbibing sufficient alcohol to
cause a high blood alcohol content. Appellant was also convicted of
disorderly conduct (18 Pa.C.S. § 5503). On January 27, 2016, Appellant
filed a post-trial motion challenging the sufficiency and weight of the
evidence. On February 4, 2016, after a hearing, the trial court granted the
motion with respect to disorderly conduct, and denied it with respect to the
two DUI offenses. That same day, the court sentenced Appellant to 48
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hours to six months in Delaware County prison and 64 hours of community
service.1 On February 10, 2016, Appellant filed a timely notice of appeal.
In this appeal, Appellant raises the following issues, as stated in his
brief:
I. DID THE TRIAL COURT ERR IN FINDING DEFENDANT GUILTY OF VIOLATING 75 Pa.C.S.A. § 3802(b) BEYOND A REASONABLE DOUBT WHERE THE EVIDENCE PRESENTED BY THE COMMONWEALTH WAS INSUFFICIENT AND/OR AGAINST THE WEIGHT OF THE EVIDENCE?
II. DID THE TRIAL COURT ERR IN FINDING DEFENDANT GUILTY OF VIOLATING THE PENNSYLVANIA MOTOR VEHICLE CODE 75 Pa.C.S.A. § 3802(a)(1) BEYOND A REASONABLE DOUBT WHEN THE EVIDENCE PRESENTED BY THE COMMONWEALTH WAS INSUFFICIENT AND/OR AGAINST THE WEIGHT OF THE EVIDENCE?
Appellant’s Brief at 4.
While Appellant presents two issues corresponding to the two crimes
of which he was convicted, each of Appellant’s issues contains two separate
claims: a weight of the evidence claim and a sufficiency claim.
As the Supreme Court of Pennsylvania has explained:
The distinction between these two challenges is critical. A claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Pennsylvania Constitution, whereas a claim challenging the weight of the evidence if granted would permit a second trial.
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material ____________________________________________
1 The two DUI offenses merged for sentencing purposes.
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element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations,
quotation marks, and footnote omitted).
Sufficiency of the Evidence
Because Appellant’s sufficiency arguments go to the legal question
whether he could be convicted of the charged offenses, we address those
questions first.
We apply the following standard of review:
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When reviewing a sufficiency of the evidence claim, this Court must review the evidence and all reasonable inferences in the light most favorable to the Commonwealth as the verdict winner, and we must determine if the evidence, thus viewed, is sufficient to enable the fact-finder to find every element of the offense beyond a reasonable doubt. The fact-finder is free to believe all, part, or none of the evidence presented. This Court may not substitute its judgment for that of the fact-finder, and if the record contains support for the verdict, we may not disturb the verdict.
Commonwealth v. Goins, 867 A.2d 526, 527-28 (Pa. Super. 2004)
(citations omitted).
75 Pa.C.S. § 3802(a)(1)
Subsection 3802(a)(1) of the Vehicle Code provides: “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. § 3802(a)(1). The
Supreme Court of Pennsylvania has explained:
[S]ubsection 3802(a)(1) is an “at the time of driving” offense, requiring that the Commonwealth prove the following elements: the accused was driving, operating, or in actual physical control of the movement of a vehicle during the time when he or she was rendered incapable of safely doing so due to the consumption of alcohol.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009) (“Segida II”).
The Court also noted:
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;
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demeanor, including toward the investigating officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech.
Id.
In Segida, the defendant was involved in a one-car accident. An
officer responding to the scene of the accident smelled alcohol on Segida’s
person. Segida admitted that he had been drinking and was driving home
when the accident occurred. He failed three field sobriety tests. The police
then transported him to the hospital, where a blood test revealed a BAC of
0.326%. Segida was convicted of DUI – general impairment (§ 3802(a))
and DUI – highest rate of alcohol (§ 3802(c)). On appeal, this Court held
that the evidence was insufficient to support either conviction. With regard
to Subsection 3802(a), this Court held that the Commonwealth was required
to prove that Segida was impaired at the time he was driving, and had failed
to do so. Commonwealth v. Segida, 912 A.2d 841, 847-50 (Pa. Super.
2006) (“Segida I”), vacated, 985 A.2d 871 (Pa. 2009).
The Commonwealth appealed with respect to the Subsection 3802(a)
conviction only. The Supreme Court of Pennsylvania agreed with this Court
that Subsection 3802(a) was an “at the time of driving” offense, but held
that the circumstantial evidence was sufficient to support Segida’s
conviction. Segida II, 985 A.2d at 873, 879-80. The Court emphasized
Segida’s admission that he had been drinking and was driving home when
he lost control of the car; the odor of alcohol on Segida’s person; Segida’s
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inability to complete sobriety tests; the extremely high level of alcohol in
Segida’s blood; and the investigating officer’s testimony that, based on
traffic conditions, it was unlikely that the accident had occurred more than
ten minutes prior to his arrival. Id. at 880.
In this case, Appellant argues that there was insufficient evidence to
prove that he was intoxicated at the time he drove his vehicle in
Pennsylvania. He notes that, in contrast to the facts of Segida, there were
no field sobriety tests performed here, he did not admit to consuming
alcohol before driving, his BAC was lower than Segida’s, and he claimed to
have consumed one beer after driving. Appellant’s Brief at 19. He also
argues that “all of the evidence which was presented by the Commonwealth
has to do with observations made by Trooper Waskiewicz at some time long
after the alleged operation of the vehicle.” Id. at 20.
Although the facts of this case differ from Segida in some respects,
we hold that there was sufficient circumstantial evidence to support
Appellant’s conviction. Notably, the Court in Segida II did not hold that
every piece of evidence in that case is required in all other Subsection
3802(a)(1) cases. Instead, the Court recognized that the proof in each case
differs. See Segida II, 985 A.2d at 879 (Subsection 3802(a)(1) “does not
limit the type of evidence that the Commonwealth can proffer to prove its
case”). Here, Ayares testified that she saw Appellant driving erratically
before he rear-ended her car at approximately 3:30 p.m. on Route 202 in
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Delaware. She also testified that immediately after the accident, Appellant
slurred his speech, swayed, and said “Yeah, I’m drunk.” After Ayares
mentioned the police, Appellant fled the scene of the accident. See Trial Ct.
Op. at 4; N.T. 12/17/15, at 9-23. 2 When Trooper Waskiewicz spoke to
Appellant at his house at around 5:20 p.m., Appellant told her that he had
driven to his Pennsylvania home from Delaware after work that day by way
of Route 202, arriving home between 4:21 and 4:36 p.m. Trooper
Waskiewicz noticed that Appellant’s eyes were bloodshot and glassy, he
smelled of alcohol, and he was swaying. When asked about the accident,
Appellant became belligerent and loud. The PBT administered by Trooper
Gibson tested positive for alcohol. Subsequently, Appellant became very
agitated and had to be physically restrained. See Trial Ct. Op. at 4; N.T.
12/17/15, at 53-62, 69-70. Based on the above evidence, the trial court
could find that Appellant was intoxicated to the point of being unable to
safely operate his vehicle at the time he drove in Pennsylvania.
The differences between this case and Segida do not undermine
Appellant’s conviction. For example, unlike in Segida, there was no
2 Appellant argues that Ayares’ testimony regarding his behavior in Delaware “is irrelevant with regard to any time driving in Pennsylvania.” Appellant’s Brief at 15. We disagree. Considering Appellant’s admission that he drove to his Pennsylvania home from Delaware by way of Route 202 and returned home approximately one hour after the accident, his conduct at the scene of the accident, immediately before he drove to his Pennsylvania home, is relevant circumstantial evidence.
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evidence in this case of failed sobriety tests. However, there was evidence
that the reason sobriety tests were not performed was Appellant’s refusal to
cooperate with the police. N.T. 12/15/17, at 57. Further, while Appellant
argues that, unlike Segida, he did not admit to drinking before driving, he
did say to Ayares “I’m drunk,” before getting in his car and driving from the
scene of the accident to his home. Id. at 19. Although Appellant’s BAC was
lower than Segida’s, Section 3802(a)(1) does not require any BAC evidence.
See Segida II, 985 A.2d at 879. And although Appellant, unlike Segida,
contended that he consumed alcohol after driving, 3 the trial court was not
required to believe Appellant’s statement. See Commonwealth v.
Mahaney, 540 A.2d 556, 559 (Pa. Super. 1988) (jury was aware of
Mahaney’s contention that he became intoxicated after driving and was free
to disbelieve it), appeal denied, 551 A.2d 214 (Pa. 1988). In sum, we hold
that the circumstantial evidence in this case was sufficient to prove that
Appellant drove in Pennsylvania while incapable of safely operating his
vehicle due to alcohol consumption.
75 Pa.C.S. § 3802(b)
Appellant also claims that the evidence was insufficient to establish
that he violated 75 Pa.C.S. § 3802(b), which provides:
3 Trooper Waskiewicz testified that Appellant first told her that he had not consumed any alcohol, and later changed his response. N.T. 12/17/15, at 56.
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An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
Proof of the alcohol concentration level normally requires that a blood test
be taken within the two-hour period, but the statute provides the following
exception:
Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual’s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:
(1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and
(2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.
75 Pa.C.S. § 3802(g).
In Segida I, this Court held that the evidence was insufficient to
establish a violation of 75 Pa.C.S. § 3802(c) (highest rate of alcohol) 4 where
4 Subsection 3802(c) is similar to Subsection 3802(b), except that it requires a BAC of 0.16% or greater within two hours of driving, rather than a BAC of at least 0.10% and less than 0.16%.
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the Commonwealth did not establish the time when Segida’s blood was
drawn or when he last drove his vehicle. See Segida I, 912 A.2d at 846.
Our Segida I opinion did not address the Section 3802(g) “good cause”
exception, however. Recently, we addressed the exception in
Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super. 2016), appeal
denied, No. 315 WAL 2016 (Pa. Nov. 22, 2016). In Eichler, the defendant
hit a pedestrian while driving and then left the scene. Id. at 782. The
accident occurred shortly before 6:00 p.m. Id. at 780-81. At the scene of
the crash, the police were able to ascertain the color, make, and serial
number of the vehicle involved, and they determined that Eichler, who lived
nearby, owned the same type of vehicle. Id. at 781. Officers arrived at
Eichler’s house less than ninety minutes after the accident and found him in
a highly intoxicated state. Id. at 777. Eichler was transported to the
hospital, where his blood was drawn at 8:12 p.m. Id. at 782. His BAC was
0.30%. Id. at 791. We held that notwithstanding the more than two-hour
span between the blood draw and the time Eichler last drove his car, there
was sufficient evidence to support a conviction under 75 Pa.C.S. § 3802(c):
[T]he evidence satisfies the good cause exception under section 3802(g), because [Eichler’s] flight from the accident scene, and the consequential delay in finding him, constituted good cause for the failure to obtain his blood test, and the Commonwealth demonstrated at trial that he did not imbibe alcohol between the time of his arrest and the time of the blood draw.
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In this case, Appellant argues that, as in Segida I, the evidence was
insufficient to convict him because the Commonwealth did not prove either
the time of operation of the vehicle or the time of the blood draw. 5
Appellant’s Brief at 16. The Commonwealth responds that it did establish
the required timeline, but concedes that Appellant’s blood was not drawn
within the two-hour window. The Commonwealth contends instead that its
proof was sufficient to satisfy the good cause exception in Section 3802(g).
Appellee’s Brief at 21-24.6
The trial court did not state whether it based Appellant’s conviction on
a blood draw taken within two hours of Appellant’s driving under Section
3802(b), or on the exception to the two-hour requirement in Section
3802(g).7 Our review of the record makes clear, however, that the blood
draw was not taken within two hours of Appellant’s driving and that the
5 Appellant does not contest that his BAC was above 0.10%. 6 Remarkably, Appellant did not discuss Section 3802(g) in his brief and did not file a reply brief responding to the Commonwealth’s Section 3802(g) argument. 7 The trial court clearly considered Section 3802(g), and that provision was subject to extensive discussion during proceedings on Appellant’s post-trial motion. At the hearing on that motion, Appellant argued that the Commonwealth failed to satisfy Section 3802(b)’s two-hour requirement. N.T. 2/4/16, at 4. The Commonwealth responded by relying on the Section 3802(g) exception. Id. at 11-12. Appellant contended that Section 3802(g) should not apply because he drank a beer after he drove home. Id. at 16. At the conclusion of the hearing, the trial court denied the post-trial motion, thereby rejecting Appellant’s arguments.
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conviction therefore could not properly be based on compliance with the
two-hour requirement. Instead, the conviction may be upheld only if the
Commonwealth’s evidence was sufficient to prove the elements of Section
3802(g). Based on our de novo review of the entire trial record, we
conclude that the evidence was sufficient to satisfy those elements of
Section 3802(g).
Before reviewing the evidence, we note that the trial court’s failure to
specify whether it convicted Appellant under Section 3802(b)’s two-hour
requirement or Section 3802(g)’s exception to that requirement does not
prevent us from making a sufficiency-of-the-evidence determination.
Sufficiency of the evidence is a question of law, which we resolve de novo
regardless of the trial court’s specification of its legal theory. See
Commonwealth v. Haughwout, 837 A.2d 480, 487 n.11 (Pa. Super.
2003) (trial court’s failure to address issue in its opinion did not hamper
appellate review because, in deciding issues of law, appellate court need not
defer to conclusions of trial court); United Coal & Commodities Co. v.
Hawley Fuel Coal, Inc., 525 A.2d 741, 743 (Pa. Super. 1987) (upholding
jury verdict notwithstanding trial court opinion’s lack of discussion of
question of law), appeal denied, 536 A.2d 1333 (Pa. 1987). Indeed, where
the trial court does not issue a Pa. R.A.P. 1925(a) opinion explaining the
reasons for its order, an appellate court may resolve questions of law
without remanding for further explanation of the trial court’s ruling. Otte v.
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Covington Township Road Supervisors, 650 A.2d 412, 414 (Pa. 1994);
Commonwealth v. Hall, 867 A.2d 619, 640 (Pa. Super. 2005) (“even if the
trial judge failed to provide a 1925(a) opinion we would still be within our
rights not to order a remand” (citation and internal quotation marks
omitted)), appeal denied, 895 A.2d 549 (Pa. 2006); Lemon v.
Commonwealth Dep’t of Transp., 763 A.2d 534, 538 (Pa. Cmwlth. 2000)
(stating remand unnecessary where “the record in this matter is sufficient
for appellate review; all the issues raised are issues of law; and we may
affirm if Common Pleas’ order can be upheld on any ground”). 8 We
therefore are free to determine whether, as a matter of law, the evidence
was sufficient to convict Appellant under either the two-hour requirement or
the exception to that requirement.
The evidence did not establish that the blood draw was made within
two hours of when Appellant last operated his vehicle, as required by Section
3802(b). The trial found that Appellant last operated his vehicle at
approximately 4:36 p.m. Trial Ct. Op. at 5. That finding was supported by
Trooper Waskiewicz’s testimony that, at approximately 5:21 p.m., Appellant
told her he had arrived at home 45 minutes earlier. N.T. 12/17/15, at 58-
8 Although “a decision of the Commonwealth Court is not binding precedent upon this Court,” it can be considered persuasive authority. Holland v. Marcy, 817 A.2d 1082, 1083 n.1 (Pa. Super. 2002) (en banc), aff’d, 883 A.2d 449 (Pa. 2005).
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59. 9 Appellant calls this testimony “hearsay,” but never argued it was
inadmissible. Indeed, the statement fell within the exception to the rule
against hearsay for statements by an opposing party. See Pa.R.E. 803(25).
Appellant appears to argue that the trial court should not have believed
Trooper Waskiewicz’s statement, but because the statement was properly
admitted, it was for the factfinder to determine the weight it should be
given. Commonwealth v. Stickle, 398 A.2d 957, 965 n.2 (Pa. 1979).
Trooper Waskiewicz testified that the blood draw took place at 6:42
p.m. N.T. 12/17/15, at 79. Appellant notes that this testimony was not
mentioned in the trial court opinion and was not elicited by the
Commonwealth, but rather was given during his attorney’s cross-
examination of Trooper Waskiewicz. Appellant’s Brief at 14, 16. However,
in reviewing the sufficiency of the evidence, we review the entire trial
record. Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009), cert.
denied, 562 U.S. 906 (2010). Thus, we are not limited to considering only
the evidence specifically cited in the trial court’s opinion or elicited by the
Commonwealth. See generally Commonwealth v. Nelson, 467 A.2d
638, 641 (Pa. Super. 1983) (“we may affirm where our review, limited to the
9 On cross-examination, Trooper Waskiewicz stated that Appellant said he returned home 45 minutes to one hour earlier. N.T. 12/17/15, at 69. The trial court apparently adopted the 45-minute estimate, which it was free to do. The result would not change if it adopted the one-hour estimate.
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trial record itself, discloses that the evidence is, in fact, sufficient”). In
addition, Appellant calls the testimony regarding the time of the blood draw
“vague.” Appellant’s Brief at 16. Based on our review of the testimony, we
disagree with Appellant’s characterization and conclude that the trial court
was free to rely on that testimony to establish the time of the blood draw.
The evidence thus established that the time between when Appellant
last operated his car (4:36 p.m.) and when the blood draw occurred (6:42
p.m.) was at least two hours and six minutes and, therefore, exceeded
Section 3802(b)’s two-hour requirement. The conviction therefore may be
affirmed only if the evidence presented at trial was sufficient to satisfy the
exception in Section 3802(g).
To meet the exception in Section 3802(g), the Commonwealth must
establish two requirements. The first is that the Commonwealth had good
cause for taking more than two hours to obtain the blood draw. 75 Pa.C.S.
§ 3802(g)(1). Here, as in Eichler, the Commonwealth proved at trial that
Appellant fled the scene of a car accident. N.T. 12/17/15, at 19-20. This
flight, and the consequential delay in finding Appellant, provides good cause
for the Commonwealth’s delay under Section 3802(g)(1). See Eichler, 133
A.3d at 791.
Section 3802(g)’s second requirement is “that the individual did not
imbibe any alcohol or utilize a controlled substance between the time the
individual was arrested and the time the sample was obtained.” 75 Pa.C.S.
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§ 3802(g)(2). There was no evidence that Appellant imbibed alcohol after
he was arrested, and Appellant has never made such a contention. At trial,
the Commonwealth established that after Appellant was arrested, he was
handcuffed, placed in the back of a patrol car, and driven to the hospital
where his blood was drawn. N.T. 12/17/15, at 60-62. That evidence was
sufficient to enable the trial court to find that Appellant was unable to
consume alcohol during this time. See Goins, 867 A.2d at 527 (in
reviewing the sufficiency of the evidence, this Court must view the evidence
and all reasonable inferences in the light most favorable to the
Commonwealth). The evidence therefore was sufficient to establish the
second element of Section 3802(g).
Our review of the record therefore convinces us that the evidence was
sufficient to satisfy the good cause exception in Section 3802(g), and,
therefore, to prove a violation of 75 Pa.C.S. § 3802(b) on the basis of that
exception. Accordingly, we reject Appellant’s insufficiency argument.
Weight of the Evidence
Based on the same arguments he made with respect to the sufficiency
of the evidence, Appellant also claims that the verdict was contrary to the
weight of the evidence. Because Appellant makes no separate argument to
support his weight claims, those claims are arguably waived. See
Commonwealth v. Birdseye, 637 A.2d 1036, 1039-40 (Pa. Super. 1994)
(noting distinction between sufficiency and weight claims and deeming
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weight claim waived for failure to present separate argument), aff'd, 670
A.2d 1124 (Pa. 1996), cert. denied, 518 U.S. 1019 (1996).
In any event, Appellant’s claims that the verdict was contrary to the
weight of the evidence are meritless. A court may award a new trial
because the verdict is against the weight of the evidence only when the
verdict is so contrary to the evidence as to shock one’s sense of justice, such
that “right must be given another opportunity to prevail.” Commonwealth
v. Foster, 764 A.2d 1076, 1083 (Pa. Super. 2000), appeal denied, 782
A.2d 542 (Pa. 2001). “The evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004) (citation
omitted), appeal denied, 889 A.2d 125 (Pa. 2005), cert. denied, 547 U.S.
1045 (2006). In addition, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to make its own analysis of the
evidence’s weight. “Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.”
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert. denied,
541 U.S. 1045 (2004). After a thorough review of the record in this matter,
we conclude that the trial court did not abuse its discretion in denying
Appellant's motion for a new trial. We agree with the trial court that
“[t]here is nothing in the record to support that the fact-finder’s verdict is so
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contrary to the evidence that it shocks one’s sense of justice.” Trial Ct. Op.
at 7.
Accordingly, Appellant is not entitled to relief on his sufficiency and
weight claims, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/21/2016
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