Opinion
J-A04029-17 No. 748 EDA 2016
05-30-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. PETER MICHAEL HERBERT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated February 10, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007303-2014 BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Peter Michael Herbert, appeals from the judgment of sentence imposed after the trial court convicted him of driving under the influence of alcohol (DUI), 75 Pa.C.S. § 3802(a)(1). We affirm.
The trial court recounted the factual background of this case as follows:
On August 6, 2014, [Appellant] drove his company car to Fritz's Tavern after work. Appellant spent more than three hours at the tavern having drinks with coworkers. Appellant left the tavern and was involved in a minor automobile accident around 11:00 P.M. Sergeant Richard T. Carey ("Sergeant Carey") of the Horsham Township Police Department was on duty, in full uniform, driving a marked patrol car. Sergeant Carey responded to a report of an accident on Blair Mill and County Line Road in Horsham Township, Montgomery County. There were several people on the scene, including the drivers of a blue Toyota and a white Ford Econoline van. The white van had minor damage on
the driver's side front bumper and the Toyota had damage on the driver's side rear around the rear wheel. Appellant identified himself as the driver of the white van.
When Sergeant Carey approached Appellant, he was leaning on one of the cars parked on the side of the road, apparently using the car for balance. Sergeant Carey further noticed Appellant's watery, bloodshot eyes, and the distinct odor of alcohol on his breath. Sergeant Carey, although having some experience with DUI arrests, called Officer Sean Allen ("Officer Allen") to the scene because of Officer Allen's extensive training in field sobriety tests and DUI arrests. Officer Allen independently noticed that Appellant had bloodshot eyes, an odor of alcohol, and was physically swaying. Officer Kathleen S. Ryan ("Officer Ryan"), arriving with Officer Allen, also noted an odor of alcohol, bloodshot eyes, and swaying while questioning Appellant. . . .
Believing Appellant to be impaired, the officers arrested Appellant and took him to Horsham police headquarters for processing and to administer a breath test. Appellant initially refused the breath test and was read the chemical testing refusal form DL-26. Appellant refused to sign the form and again refused to take the breathalyzer test. Appellant was then charged with DUI.
In a pre-trial suppression hearing, Appellant moved to suppress all evidence obtained by the Horsham Police Department for lack of probable cause. The Court suppressed the evidence presented regarding field sobriety tests for the admitted reasons that the surface was not level and there were numerous distractions possibly influencing the outcome of the tests. However, this Court did not suppress all evidence as requested, finding probable cause even without the field sobriety tests: Appellant identified himself as the van driver, admitted to drinking prior to driving, and all three officers testified [to] having independently witnessed Appellant's watery, bloodshot eyes, odor of alcohol, and his physical instability, marked by swaying, staggering, and leaning on a nearby car.
After trial, the Court found Appellant guilty of driving under the influence of a refusal nature and sentenced him to imprisonment for not less than four days nor more than six
months, all costs associated with this criminal matter, as well as a $1,000 fine.Trial Court Opinion, 6/15/16, at 1-3.
This appeal followed.
Appellant's sole issue is whether "the evidence [was] sufficient to sustain the verdict returned?" Appellant's Brief at 4. The Pennsylvania Supreme Court has explained:
When reviewing a challenge to the sufficiency of the evidence, we must determine if the Commonwealth established beyond a reasonable doubt each of the elements of the offense, considering the entire trial record and all of the evidence received, and drawing all reasonable inferences from the evidence in favor of the Commonwealth as the verdict-winner. The Commonwealth may sustain its burden of proof by wholly circumstantial evidence.Commonwealth v. Segida , 985 A.2d 871, 880 (Pa. 2009) (citations omitted).
Appellant was convicted of DUI--general impairment under Section 3802(a)(1) of the Vehicle Code which provides that "[a]n 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). In support of his sufficiency argument, Appellant contends that the evidence was insufficient to prove that he was incapable of safe driving because there was no evidence of his blood alcohol level or from a breathalyzer; no evidence of him driving recklessly or carelessly; no expert police testimony regarding his ability to drive capably; and no evidence of "boisterous behavior or clumsy coordination" or "slurred speech, falling, vomiting, or staggering." See Appellant's Brief at 6-9. Neither the law nor the record support Appellant's argument.
This Court recently reiterated that relative to a conviction for DUI--general impairment, there is no requirement that physical evidence be presented at trial. Commonwealth v. Giron , 155 A.3d 635 (Pa. Super. 2017), citing Commonwealth v. Dent , 837 A.2d 571, 590 (Pa. Super. 2003), appeal denied , 581 Pa. 671, 863 A.2d 1143 (2004); Commonwealth v. Fisher , 764 A.2d 82, 87-88 (Pa. Super. 2000), appeal denied , 566 Pa. 658, 782 A.2d 542 (2001); Commonwealth v. Steward , 762 A.2d 721, 722-723 (Pa. Super. 2000), appeal denied , 566 Pa. 662, 782 A.2d 545 (2001). Instead, police officers' testimony is sufficient to prove the elements of DUI--general impairment. Id., citing Commonwealth v. Stanley , 427 Pa. Super. 422, 629 A.2d 940, 943 (1993), citing Commonwealth v. Karch , 349 Pa. Super. 227, 502 A.2d 1359, 1361-1362 (1986). Further, the Commonwealth is not required to introduce expert testimony to meet its burden to prove that a defendant was driving under the influence; the statute "does not limit, constrain, or specify the type of evidence the Commonwealth may proffer to prove its case." Commonwealth v. Graham , 81 A.3d 137, 146 (Pa. Super. 2013), appeal denied , 81 A.3d 137 (Pa. 2014) (citation omitted).
Here, the trial court explained its rationale for finding Appellant guilty of DUI:
At trial, Officers Allen and Ryan, and Sergeant Carey each testified that Appellant had red, bloodshot eyes, smelled of alcohol, and was unstable on his feet. Additionally, Appellant admitted to drinking earlier that evening, and further admitted to driving one of the vehicles involved in a motor vehicle accident. (N.T., 5/3/15, pp. 40-41, pp. 47-48). Lastly, Officer Allen testified that Appellant refused to consent to chemical testing, which this Court found probative of a guilty conscience. Based on Appellant's accident, the indicia of impairment, his admission to drinking and driving, Appellant's refusal to submit to testing, and the credible testimony of the experienced officers involved, this court was convinced beyond a reasonable doubt that Appellant was incapable of safe driving. Accordingly, this court believes that the evidence was sufficient to support a conviction for DUI.Trial Court Opinion, 6/15/16, at 6-7 (citation omitted).
The trial court's use of Appellant's refusal to consent to a chemical breath test as probative of his guilt was permissible under Birchfield v. North Dakota , 136 S.Ct. 2160 (2016), and Giron , 155 A.3d at 635, which restrict the use of a blood test taken without consent or a search warrant. --------
The trier of fact - in this case the trial court - while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Vetrini , 734 A.2d 404, 407 (Pa. Super. 1999). Therefore, in view of the record before us, we find no error in the trial court's assessment of the evidence and conclusion that Appellant was guilty of DUI.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/30/2017