Com. v. Velez, N., Jr.

• Court: Superior Court of Pennsylvania
• Decided: August 6, 2024
• Docket: 1496 MDA 2023
• Status: Unpublished

Opinion

J-S20025-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : NELSON VELEZ JR. : : Appellant : No. 1496 MDA 2023

Appeal from the Judgment of Sentence Entered October 3, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000196-2023

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 6, 2024

Nelson Velez, Jr. appeals from the judgment of sentence of six months’

probation (with 10 days of house arrest) and $1,100 in fines, after the trial

court convicted him of driving under the influence (“DUI”) and related

offenses.1 Because the Commonwealth produced legally sufficient evidence

of DUI, we affirm.

Around 2:30 a.m. on October 30, 2022, Velez was driving from a

Halloween party where he drank beer. His friend was riding in the passenger

seat. A police officer stopped the vehicle, due to a burnt-out headlight and a

burnt-out license-plate bulb.

When the officer approached the passenger’s window, he smelled the

aroma of alcohol wafting from the car. The officer also smelled the aroma of

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* Former Justice specially assigned to the Superior Court.

1 See 75 Pa.C.S.A. §§ 4107(b)(2), 3802(a)(1). J-S20025-24

“heavy masking odors in the vehicle [i.e.,] cologne and air fresheners . . . .”

N.T., 7/25/23, at 12. Based on his training and experience, the officer knew

that intoxicated drivers may spray such masking odors to hide the smell of

alcohol.

The “passenger had the immediate appearance of an impaired person,”

while Velez “had bloodshot eyes.” Id. at 11. The officer requested a driver’s

license from Velez, and he produced it. The officer asked him to exit the car.

Once Velez was outside the car, the officer “noticed the odor of alcoholic

beverage emanating from him.” Id. at 14.

The officer had Velez perform a “three-test battery, consisting of a check

for Horizontal Gaze Nystagmus, a one-leg stand, and a walk and turn . . . .”

Id. The officer videoed the field sobriety tests, but the Commonwealth did

not admit the video into evidence. See id. at 29, 36. During the one-leg-

stand test,2 Velez swayed, which is one of four clues of impairment. However,

for someone to demonstrate impairment during the one-leg-stand test, the

“threshold is two out of four” clues. Id. at 29.

Regarding the walk-and-turn test, there are eight possible clues. Velez

demonstrated five of them. He “missed heal-to-toe contact, stepped off line,

performed an incorrect number of steps, performed an improper turn, and

stopped walking after his first nine steps and before the turn.” Id. at 15.

2 The Commonwealth produced no evidence regarding the results of the HGN

test.

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After the field sobriety tests, the officer asked Velez to blow into a

breathalyzer. He blew three times, but no attempt generated a Blood Alcohol

Content (“BAC”) reading. As a result, the officer manually triggered the

device, and the reading “was positive for the presence of alcohol,” at a BAC

of .053. Id.; see also id. at 30.

The officer arrested Velez for DUI and transported him to a hospital.

Once in the emergency room, the officer presented Velez with the PennDOT

DL-26-B Form, read him the warnings therein, and asked if he would submit

to blood testing. Velez, who is a nurse, refused “to submit to what he

described [to the officer] as an . . . invasive treatment . . . .” Id. at 21.

As a last resort, the officer took Velez to a neighboring police station to

perform “an evidential breath test.” Id. at 21. The officers at the station

provided Velez with the PennDOT DL-26-A Form, read him the warnings

therein, and asked if he would submit to the breath test. Velez refused for “a

variety of reasons . . . .” Id. at 24.

The Commonwealth charged Velez with DUI (general impairment by

consumption of alcohol) and with two counts of operating a vehicle with unsafe

equipment (the burnt-out headlight and the burnt-out license-plate blub). The

matter proceeded to a bench trial, and only the arresting officer testified for

the Commonwealth. The officer did not testify that Velez drove in an unsafe

manner or that Velez was so intoxicated that, in the officer’s opinion, he was

incapable of safely driving.

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The trial court convicted Velez on all counts and sentenced him as

described above. This timely appeal followed.

Velez raises one issue: “Whether the Commonwealth presented

sufficient evidence that [he] was under the influence of alcohol to a degree

that rendered him incapable of safely driving when the field sobriety tests

provided inconsistent results and the police officer never provided his opinion

. . . that Velez was . . . incapable of safely driving?” Velez’s Brief at 4.

Due to the absence of opinion testimony, Velez contends his conviction

for DUI must be overturned. He states the arresting officer was competent to

render an “opinion on this topic if he believed Velez was impaired” based on

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000). Velez’s

Brief at 14. Because the officer’s opinion is not in evidence, Velez contends

that the Commonwealth had no proof he was incapable of safely driving, much

less that alcohol consumption caused such an incapability. Without the officer

“explaining why his training and experience would lead him to believe a person

was impaired to a degree that rendered them incapable of safely driving

[there] is not sufficient evidence to sustain the conviction.” Id. at 16.

The Commonwealth disagrees. In its view, opinion testimony from the

arresting officer was not required, as matter of law, to prove that Velez was

rendered incapable of safely driving by the alcohol he consumed. Instead, the

Commonwealth claims it “may carry its burden by demonstrating that [Velez]

failed field sobriety testing.” Commonwealth’s Brief at 10 (citing

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2000), and

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Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017). According to

the Commonwealth, by having bloodshot eyes, smelling of alcohol, failing the

walk-and-turn test, and refusing post-arrest chemical testing, Velez provided

sufficient circumstantial evidence from which the trial court, as the finder of

fact, could reasonably infer that he was incapable of safely driving. See id.

at 11-12.

“Because evidentiary sufficiency is a question of law, our standard of

review is de novo, and our scope of review is plenary.” Commonwealth v.

Diamond, 83 A.3d 119, 126 (Pa. 2013). We “must determine whether the

evidence admitted at trial, as well as all reasonable inferences drawn

therefrom when viewed in the light most favorable to the verdict winner, are

sufficient to support all elements of the offense.” Commonwealth v.

Johnson, 236 A.3d 1141, 1151 (Pa. Super. 2020). However, “we may not

reweigh the evidence or substitute our own judgment for that of the fact

finder. The evidence may be entirely circumstantial as long as it links the

accused to the crime beyond a reasonable doubt.” Id. at 1151–52.

The General Assembly has directed that an “individual may not drive

. . . a vehicle after imbibing a sufficient amount of alcohol such that the

individual is rendered incapable of safely driving . . . the vehicle.” 75 Pa.C.S.A.

§ 3802(a)(1). To convict someone under that subsection, the Commonwealth

must prove that the individual drove a vehicle “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). Regarding that

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element of the offense, “it must be shown that alcohol has substantially

impaired the normal mental and physical faculties required to safely operate

the vehicle.” Palmer, 751 A.2d at 228.

Because subsection 3802(a)(1) is a general-impairment provision, it

imposes “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 driving.” Segida, 985 A.2d

at 879. “The types of evidence that the Commonwealth may proffer . . .

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.” Id. “The weight to be assigned 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.” Id. “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 due to consumption of alcohol — not on a particular blood

alcohol level.” Id.

Here, the Commonwealth presented evidence of Velez’s actions, inability

to complete a sobriety test properly, and physical appearance. Regarding

Velez’s actions, he admitted that he was coming from a Halloween where he

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consumed beer. Thus, the Commonwealth proved that Velez imbibed alcohol

prior to driving the vehicle.

Next, the officer testified that, during the walk-and-turn test, Velez

missed heal-to-toe contact, stepped off the line, took the wrong number of

steps, performed an improper turn, and stopped walking at the wrong time.

From this, the trial court, as the sole finder of fact, was free to infer that the

alcohol Velez drank “substantially impaired [his] normal mental and physical

faculties required to safely operate the vehicle.” Palmer, 751 A.2d at 228.

“Evidence that the driver was not in control of himself, such as failing to pass

a field sobriety test, may establish that the driver was under the influence of

alcohol to a degree which rendered him incapable of safe driving,

notwithstanding the absence of evidence of erratic or unsafe driving.” Id.

(emphasis added). Velez gave five indicia of impairment during the walk-an-

turn field sobriety test. As such, he showed, beyond reasonable doubt, that

he was incapable of safely driving, despite his successful completion of the

other two tests.

Additionally, Velez’s appearance of bloodshot eyes and the odor of

alcohol emanating from his person offered further credence to the trial court’s

finding that he had consumed too much alcohol to drive safely. Based on the

trial judge’s life experience and common sense, he presumably knew that

sober drivers do not exhibit such signs of intoxication. See Segida, supra.

Therefore, the trial court could rationally conclude that, Velez was not a sober

driver, because he displayed those signs of intoxication.

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Finally, the trial court was free to infer Velez’s consciousness of guilt

when he refused the blood draw test and the evidentiary-breathalyzer test.

See generally, Com. v. Bell, 211 A.3d 716 (Pa. 2019).

The combination of the forgoing facts, viewed in the light most favorable

to the Commonwealth, is sufficient proof beyond reasonable doubt that Velez

was incapable of safely driving his vehicle. Hence, the Commonwealth did not

need to ask the officer his opinion on Velez’s degree of impairment to sustain

the DUI conviction.

Velez’s sole appellate issue is meritless.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 08/06/2024

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