Opinion
J-S10022-14 No. 1247 MDA 2013
07-01-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. JASON MICHAEL O'BRIEN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 19, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001604-2012
BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.:
Jason Michael O'Brien appeals from the judgment of sentence entered March 19, 2013, in the Centre County Court of Common Pleas. O'Brien was sentenced to six months' probation after the trial court found him guilty of one count of DUI - general impairment. On appeal, O'Brien challenges the sufficiency and weight of the evidence supporting his conviction. For the reasons set forth below, we affirm.
The facts as established at O'Brien's bench trial are as follows. During the evening of August 16, 2012, Officer William Muse, of the State College Police Department, was sitting in a marked vehicle monitoring traffic at the intersection of Bear Meadows Road and Boal Avenue/Route 322. Traffic was heavy coming from Bear Meadows Road onto Route 322 due to an event at Tussey Mountain that evening. At approximately 8:52 p.m., Officer Muse observed several vehicles that were stopped at the stop sign on Bear Meadows Road waiting to make a left turn onto Route 322. Officer Muse testified he then witnessed a Toyota 4Runner, later determined to be driven by O'Brien, pass to the right of the stopped vehicles and make a right turn onto Route 322 without coming to a full and complete stop at the stop sign. The officer estimated the vehicle was travelling approximately 15 mph through the intersection. See N.T., 3/19/2013, at 8-9, 13-14.
Officer Muse testified that Tussey Mountain held "Wing Fest" every Thursday night in the late summer. Local businesses competed to see which had the best chicken wings, and alcoholic beverages are sold at the event. See N.T., 3/19/2013, at 14-15.
Officer Muse began following the vehicle until it was safe to execute a traffic stop, less than a quarter of a mile up the road. He directed O'Brien to pull over into the parking lot of a tree farm. Officer Muse approached the vehicle, and detected a strong odor of alcohol emanating from the car. He also noticed O'Brien's eyes were bloodshot and glassy, and that O'Brien was wearing a Coors Light wristband, which indicated he had attended Wing Fest. Officer Muse directed O'Brien to step out of the car. He described their encounter as follows:
During the time Officer Muse followed the vehicle, he did not notice O'Brien weaving or having any difficulty driving the vehicle. Id. at 40-41.
Although Officer Muse testified on direct examination that O'Brien's face was "slightly flushed," he acknowledged on cross-examination that he was incorrect, and that, as he noted in his report, O'Brien had a normal complexion. Id. at 21, 49.
[O'Brien] had difficulty exiting the vehicle. He had to place his hand on the door to steady himself. Once he was outside the vehicle, he was observed swaying slightly from side to side, and at that point, in talking with [O'Brien], I noted a moderate odor of beverage alcohol on his breath.Id. at 22. O'Brien admitted to the officer that he had been at Wing Fest since about 6:30 p.m., and had two beers while there. Therefore, Officer Muse asked O'Brien to perform two field sobriety tests, the walk-and-turn test and the one- leg stand test. Officer Muse testified that O'Brien's performance in both tests was unsatisfactory. He concluded:
Based on the driving I observed, my initial contact and observations of [O'Brien] and his unsatisfactory performance on the field tests, I formed the opinion that he was under the influence of alcohol to the degree he was incapable of safe driving.Id. at 31. Officer Muse then placed O'Brien under arrest, and transported him to the hospital for a blood test. The results of the blood test, however, were not admitted into evidence at trial.
O'Brien and his wife, who was a passenger in the car, both testified that they arrived at Wing Fest closer to 5:40 p.m. Further, O'Brien admitted during his direct examination that he had two and two thirds 12-ounce cups of beer from approximately 6:00 p.m. until 8:45 p.m. Id. at 109, 127-129.
Officer Muse explained that O'Brien indicated four out of eight "clues" in the walk-and- turn test, and three out of four "clues" in the one-leg stand test. Id. at 26-27, 29 He described a "clue" as "a failure to do the test in the prescribed manner." Id. at 26. Any score above two clues is deemed unsatisfactory. Id. at 26, 29.
Before trial began, the prosecutor told the trial court that he would not be proceeding on a charge of 75 Pa.C.S. § 3802(a)(2), stating: "Under the circumstances, for a variety of reasons, most notably the expense associated with summoning people from MNS, the Commonwealth will now move to nol pros count two of the information." N.T. 3/19/2013, at 3.
O'Brien was charged with two counts of DUI, subsections (a)(1) and (2), as well as the summary offense of Obedience to Traffic Control Devices. On March 19, 2013, O'Brien entered a guilty plea to the summary offense and the Commonwealth nolle prossed the DUI charge under subsection (a)(2). Thereafter, O'Brien proceeded to a bench trial on the charge of DUI - general impairment. At the close of the testimony, the trial court found him guilty and imposed a mandatory minimum sentence of six months' probation, and a $300 fine. The court also imposed a $25 fine for the summary conviction. O'Brien filed post-sentence motions challenging both the sufficiency and weight of the evidence, which the trial court denied on June 25, 2013. This timely appeal followed.
On July 16, 2013, the trial court ordered O'Brien to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925 (b). O'Brien complied with the court's directive and filed a concise statement on July 22, 2013.
In his first issue, O'Brien challenges the sufficiency of the evidence supporting his conviction of DUI. Specifically, he argues the Commonwealth presented insufficient evidence to prove that he was incapable of safe driving.
Our review of a challenge to the sufficiency of the evidence is well-settled:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010) (internal citations omitted), appeal denied, 14 A.3d 826 (Pa. 2011).
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and "any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances."
To secure a conviction for DUI - general impairment, the Commonwealth must establish, beyond a reasonable doubt, that the defendant drove a motor vehicle "after imbibing a sufficient amount of alcohol such that [he] is rendered incapable of safely driving[.]" 75 Pa.C.S. § 3802(a)(1).
To establish the second element, it must be shown that alcohol has substantially impaired the normal mental and physical faculties required to safely operate the vehicle. Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions.Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000) (citations omitted). Further,
[e]vidence of erratic driving is not a necessary precursor to a finding of guilt under the relevant statute. The Commonwealth may prove that a person is incapable of safe driving through the failure of a field sobriety test.Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (internal citation omitted). Accord Palmer, supra. Moreover,
this Court has held that a police officer who has perceived a defendant's appearance and conduct is competent to express an opinion, in a prosecution for driving under the influence (DUI), as to the defendant's state of intoxication and ability to safely drive a vehicle. Commonwealth v. Davies, 811 A.2d 600 (Pa.Super.2002); Commonwealth v. Palmer, 751 A.2d 223 (Pa.Super.2000).Commonwealth v. Butler, 856 A.2d 131, 137 (Pa. Super. 2004).
Here, O'Brien emphasizes that it is not illegal to drive after drinking alcohol. Rather, "[i]t is only illegal to drink alcohol to a degree that one is incapable of safe driving." O'Brien's Brief at 11. He contends there were insufficient facts to support Officer Muse's determination that he had consumed alcohol to a degree that he was incapable of safely driving. While O'Brien acknowledges he failed to come to a complete stop at the "notoriously big" intersection of Bear Meadows Road and Rte. 322, he argues the testimony established that his actions never endangered another car or a pedestrian. Id. at 13. Moreover, he emphasizes Officer Muse agreed that, while he was following O'Brien's vehicle, the officer did not observe any "swerving, drifting [or] problems stopping ... no near striking of objects, and no wide turns." Id. Further, O'Brien offers benign explanations for his appearance and demeanor after the vehicle stop, and challenges the officer's conclusion that he "performed unsatisfactorily" on two field sobriety tests. See id. at 14. Therefore, he contends "there is nothing to indicate, from the driving alone[,] that alcohol substantially impaired [his] normal mental and physical faculties required to operate the vehicle safely." Id. at 13-14.
The trial court disposed of O'Brien's sufficiency challenge as follows:
This Court is satisfied based on the record that there was sufficient evidence to support the verdict that was entered in the instant matter. Officer Muse testified that he has received the standard field sobriety test practitioner training, as well as advanced roadside impairment detection training, and that he has been involved in over 700 DUI investigations. Officer Muse testified that he was parked in a marked patrol vehicle watching a notoriously busy intersection that was experiencing heavy traffic when he witnessed a white Toyota 4Runner run a stop sign at the intersection, and that he proceeded to stop the vehicle.Trial Court Opinion, 6/25/2013, at 2-3.
Officer Muse testified that he observed [O'Brien] behind the wheel of the 4Runner and that he had glassy, bloodshot eyes. Officer Muse testified that he also noticed the smell of beverage alcohol emanating from the vehicle. Officer Muse testified that since there was a passenger in the vehicle, he asked [O'Brien] to step out of the vehicle to determine whether the smell of beverage alcohol was emanating from [O'Brien]. Officer Muse testified that [O'Brien] exited the vehicle, supporting himself with his left hand on the door to steady himself. Officer Muse testified that he smelled beverage alcohol on [O'Brien's] breath and observed a slight 2" sway from side-to-side. Officer Muse testified that he administered two standard
field sobriety tests, both of which [O'Brien] performed unsatisfactorily. Further, Officer Muse testified that [O'Brien] admitted to him that he had imbibed alcohol in the three hours immediately preceding his traffic stop, and [O'Brien] admits as much in his own testimony. The Court is therefore satisfied that the evidence supports the verdict in this case.
We agree with the trial court's conclusion that the evidence presented by the Commonwealth was sufficient to support the guilty verdict. Indeed, while O'Brien attempts to downplay the evidence concerning his unsafe driving, the fact remains that he proceeded through a stop sign, into an intersection with heavy traffic, driving 15 miles per hour. N.T., 3/19/2013, at 13-14. Moreover, Officer Muse, an experienced police officer trained in detecting drunk drivers, opined that, based upon O'Brien's demeanor and his failure to perform two field sobriety tests satisfactorily, O'Brien was incapable of safely driving. Id. at 31. This testimony, found credible by the trial court, was sufficient to support the verdict. See Butler, supra. The fact that O'Brien did not drive more erratically, or endanger the safety of another driver or pedestrian is of no moment. See Mobley, supra. Accordingly, O'Brien's first claim fails.
O'Brien's reliance of this Court's decision in Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007), is misplaced. In that case, we concluded that the evidence was insufficient to support Etchison's conviction under Section 3802(d)(2) and (3), which prohibit a person from driving under the influence of drugs or a combination of drugs and alcohol to such a degree that "impairs the individual's ability to safely drive[.]" 75 Pa.C.S. § 3802(d)(2), (3). Although the evidence established that Etchison was driving the wrong way on an entrance ramp, exhibited signs of being under the influence of alcohol, and failed field sobriety tests, there was no evidence that he was under the influence of a drug or combination of drugs at the time he was stopped. Id. at 1172. Indeed, while the evidence established that Etchison had "55 nanograms of metabolites of cannabinoids" in his system, the Commonwealth's expert "testified under cross-examination that the presence of metabolites is not an indication of present impairment but only that a substance was ingested sometime previously." Id. at 1171, 1172. This Court concluded:
While the factors cited by the trial court suggest that Appellant may have been under the influence of alcohol, because, as previously discussed, no evidence was presented to suggest that Appellant was under the influence of a drug or combination of drugs, the elements of Section 3802(d)(3), which require the combined influence of alcohol and a drug, were not met.
Next, O'Brien challenges the weight of the evidence supporting his conviction. He argues that in addition to the "utter lack of strength of the Commonwealth's case," the trial court ignored the testimony of four defense witnesses who claimed O'Brien was not intoxicated, and was capable of safely driving on the night in question. O'Brien's Brief at 19. He describes the witnesses as "four middle-aged individuals who have a certain standing within the community by way of their jobs... [ and] who are responsible parents of children." Id. at 21-22. Because the trial court never mentioned the testimony of these witnesses in its opinion, O'Brien contends "[w]e are simply left to speculate as to why the trial judge rejected their testimony." Id. at 22.
We note that O'Brien properly preserved his challenge to the weight of the evidence by raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).
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Appellate review of a weight of the evidence claim is well-established:
A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice. Commonwealth v. Widmer, 560 Pa. 308, 318-20, 744 A.2d 745, 751 - 52 (2000); Commonwealth v. Champney, 574 Pa. 435, 443- 44, 832 A.2d 403, 408-09 (2003). On review, an appellate court does not substitute its judgment for the finder of fact and consider the underlying question of whether the verdict is against the weight of the evidence, but, rather, determines only whether the trial court abused its discretion in making its determination. Widmer, 560 Pa. at 321 - 22, 744 A.2d at 753; Champney, 574 Pa. at 444, 832 A.2d at 408.Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134 S.Ct. 1792 (2014).
Preliminarily, we note that the four witnesses who testified for the defense were not disinterested thi rd parties, but rather, O'Brien, his wife Norma, her friend, Susan Glick, and Glick's boyfriend, Bradley Wagner. O'Brien, his wife, and Wagner all drank alcohol at the event. Moreover, while all four witnesses opined that O'Brien was capable of driving h ome safely that evening, the trial court was not required to credit the testimony of these lay witnesses above that of Officer Muse, who had received extensive training in detecting drunk drivers.
Indeed, the trial court succinctly disposed of O'Brien's weight of the evidence claim as follows:
Here, the Court properly weighed the evidence before it and found that the weight of the evidence supported a guilty verdict. Though [O'Brien] disputes the weight and credibility of the testimony presented against him, such determinations are ultimately left to the finder of fact.Trial Court Opinion, 6/25/2013, at 4. We detect no basis to disturb the decision of the trial court. Accordingly, O'Brien is again entitled to no relief.
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary
Id. at 1172. Therefore, the decision in Etchison rested upon the Commonwealth's failure to establish the defendant had sufficient narcotics in his system to negatively affect his ability to drive, an issue not present in this case.