Opinion
J-A15001-18 No. 1441 MDA 2017
08-08-2018
COMMONWEALTH OF PENNSYLVANIA v. MARCIA L. PERRY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 16, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005498-2016 BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY PANELLA, J.
Marcia L. Perry appeals from the judgment of sentence imposed following her conviction of Driving under influence of alcohol, General impairment. We affirm.
Driving under the influence of alcohol, general impairment, is defined in 75 Pa.C.S.A. §3802(a)(1) as: "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."
On August 25, 2016, an Officer of the Lower Swatara Township Police Department was conducting routine checks of vehicle license plate numbers. An initial check on Perry's vehicle came up as suspended due to insurance cancellation. Perry was pulled over for a further check on her insurance, however, the Officer noticed that she operated her car in a reckless manner and cut off another car. As the Officer approached the vehicle he detected the odor of an alcoholic beverage, and upon further contact with Perry, he noticed that she had bloodshot and glassy eyes.
It was later determined that Perry's vehicle was properly insured.
Although Perry initially refused a field sobriety test, she later agreed. The tests did not go well for Perry, who later complained that her high heels interfered with her ability to engage in the field sobriety tests. At trial, the court found credible the Officer's testimony that she had earlier stated she could walk fine in the shoes, and refused the opportunity to remove them prior to taking the tests. After she was arrested, Perry refused a blood test.
Following a bench trial held on March 30, 2017, Perry was convicted of DUI, General Impairment. On May 16, 2017, the trial court ordered Perry to pay a $300 fine and the costs of prosecution, serve local probation for six months, perform fifty hours of community service, and to follow-up on the recommendations of a CRN evaluation.
"A CRN evaluation is [a] uniform prescreening evaluation procedure for all [driving under the influence ("DUI") offenders to aid and support clinical treatment recommendations offered to the judiciary, prior to sentencing. 67 Pa.Code § 94.2 (emphasis added); see 75 Pa.C.S.A. § 3816 (emphasis added) (CRN evaluations are used to assist the court in determining what sentencing, probation[,] or conditions of Accelerated Rehabilitative Disposition would benefit the person or the public.)." Commonwealth v. Parsons , 166 A.3d 1242, 1244 n.1 (Pa. Super. 2017) (internal quotation marks and emphasis omitted).
Perry filed a timely Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of Errors Complained of on Appeal. The trial court addressed these issues in a memorandum opinion filed on October 19, 2017.
On appeal, Perry raises the following questions for our review:
1. Whether there was insufficient evidence for the conviction of DUI: General Impairment, when there was no evidence that Perry was substantially impaired due to alcohol?Brief for Appellant at 4.
2. Whether the judge's finding of guilt for DUI: General Impairment is against the weight of the evidence when Perry's witnesses testified that she did not appear impaired and other typical indicia of intoxication were discredited?
There are well-established distinctions between a claim challenging the sufficiency of the evidence and one which challenges the weight of the evidence.
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, Tibbs v. Florida , 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Commonwealth v. Vogel , 501 Pa. 314, 461 A.2d 604 (1983), whereas a claim challenging the weight of the evidence if granted would permit a second trial. Id .Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). A claim challenging the sufficiency of the evidence is a question of law, and we must review whether each material element of the crime charged was proved beyond a reasonable doubt. See Commonwealth v. Karkaria , 625 A.2d 1167, 1170 (Pa. 1993). A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, which may be pursued in the alternative, concedes that there is sufficient evidence to sustain the verdict. Commonwealth v. Whiteman , 485 A.2d 459, 462 (Pa. Super. 1984).
In her first claim, Perry contends that the evidence was insufficient to sustain her conviction. Perry argues that the evidence did not prove that alcohol had substantially impaired her faculties required to safely operate the vehicle. In a perceptive statement, Perry argues that this is "a drunk driving case with no evidence of drunk driving." Id. at 16. Perry also asserts that the field sobriety tests were unfairly conducted because she was wearing "five-inch heels."
In reviewing the sufficiency of the evidence, we must determine whether the evidence presented at trial, combined with all reasonable inferences therefrom, is sufficient to conclude that the Commonwealth established each element of the offense beyond a reasonable doubt. Commonwealth v. Lyons , 79 A.3d 1053, 1062 (Pa. 2013). We evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. See Commonwealth v. Duncan , 932 A.2d 226, 231 (Pa. Super. 2007). However, the Commonwealth need not establish guilt to a mathematical certainty. See id. In addition, this Court may not substitute its judgment for that of the factfinder, and where the record contains support for the convictions, they may not be disturbed. See id . Lastly, we note that the finder of fact is free to believe some, all, or none of the evidence presented. See Commonwealth v. Hartle , 894 A.2d 800, 804 (Pa. Super. 2006).
To support a conviction under Section 3802(a)(1), which is a "time of the driving" offense, the prosecution must prove "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. Teems , 74 A.3d 142, 145 (Pa. Super. 2013) (quoting Commonwealth v. Segida , 985 A.2d 871, 879 (Pa. 2009)).
The type, quantum and quality of evidence that may satisfy this burden include but are not limited to:
[T]he 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 ether physical signs of intoxication; odor of alcohol, and slurred speech. Blood alcohol level may be added to this list, although it is not necessary and the two hour time limit for measuring blood alcohol level does not apply. . . 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. 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.Teems , 74 A.3d at 145 (quoting Segida , 985 A.2d at 879).
The trial court aptly addressed each of Perry's contentions. In its memorandum opinion, the trial court referred to the testimony of the arresting officer, much of which was corroborated by a Sergeant of the same police department. The trial court found the evidence of the Appellant's unsafe driving, the odor of an alcohol beverage, bloodshot eyes, admission by the Appellant that she had had at least two alcoholic drinks before driving, and her failure to pass the field sobriety tests, as sufficient to support the conviction.
Perry's second issue contends that her conviction should be vacated because the trial court failed to properly weigh the evidence presented by Appellant and to consider the evidence presented on Appellant's behalf by her two other witnesses. An appellate court's purpose in evaluating a challenge to the weight of the evidence is to "determine whether the trial court abused its discretion and not to substitute its own judgment for that of the trial court." Commonwealth v. Murray , 597 A.2d 111, 114 (Pa. Super. 1991)(en banc)(citations omitted). In a bench trial, the trial judge is the appropriate fact-finder and it is up to the judge to determine the facts of the case while passing on the credibility of witnesses and the weight of the evidence produced.
A true "weight of the evidence" claim contends the verdict is a product of speculation or conjecture.
Such a claim requires a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Ables , 404 Pa.Super. 169, 590 A.2d 334. . . A decision regarding the weight of the evidence is within the sound discretion of the trial judge whose decision will not be reversed on appeal absent an abuse of that discretion. Commonwealth v. Fox , 422 Pa.Super. 224, 619 A.2d 327 (1993) . . . .Commonwealth v. Dougherty , 679 A.2d 779, 785 (Pa. Super. 1996).
The trial judge found that the verdict clearly did not shock his sense of justice. Having found that the two officers provided credible evidence, the trial court determined the challenge to the weight of the evidence to be without merit.
Upon review, we conclude that the trial court did not err in denying Perry's Post-Sentence Motion, and we affirm upon the sound reasoning of President Judge Richard A. Lewis, as filed in the Court of Common Pleas of Dauphin County, Criminal Division, at No. CP-22-CR-0005498-2016. See Trial Court Opinion, 10/19/17.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/8/2018
Image materials not available for display.