Com. v. Lower, D.

J-S20009-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DANNY LEE LOWER :

:

Appellant : No. 761 MDA 2023

Appeal from the Judgment of Sentence Entered May 16, 2023

In the Court of Common Pleas of Cumberland County Criminal Division at

No(s): CP-21-CR-0000486-2022

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

MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 30, 2024

Appellant, Danny Lee Lower, appeals from the judgment of sentence

entered May 16, 2023. We affirm.

The trial court summarized the relevant facts of this case as follows:

On August 20[,] 2021, at approximately 10:20 [p.m.], Officer

Bradley McAlester [of the East Pennsboro Township Police] was

on patrol in a marked police vehicle when he observed a

motorized bicycle[1] swerving between the road and the right

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 At Appellant’s trial, the parties discussed whether Appellant was operating a

bicycle or motorcycle. Officer McAlester indicted that, after Appellant’s arrest,

he determined that the vehicle qualified as a motorcycle because it had a 79

CC engine. See N.T. Trial, 4/3/23, at 10; see also Trial Court Opinion,

7/7/23, at 2, n.1. As pointed out in the Commonwealth’s brief, however,

whether Appellant’s vehicle is a bicycle or motorcycle “is a distinction without

a difference” because both fall under the definition of “vehicle” as set forth in

the Motor Vehicle Code. Commonwealth’s Brief at 3, n.3; see also 75

Pa.C.S.A. 102; Commonwealth v. Brown, 620 A.2d 1213, 1215 (Pa. Super.

1993) (holding that a bicycle “clearly f[e]ll[] within the confines of [the]

definition” set forth in Section 102 of the Motor Vehicle Code).

J-S20009-24

shoulder, with its rear lights and headlights turned off. [Upon]

observing this [motorized bicycle driving] in an erratic and

unsafe manner, at night, with its operating lights off, Officer

McAlester initiated a traffic stop. Even with his patrol vehicle’s

lights and sirens on, it took the driver of the [motorized bicycle],

later confirmed to be [Appellant], over a minute to pull over.

[When] Appellant [finally] came to a halt[,] Officer McAlester

began speaking with him[. I]t quickly became apparent that

Appellant was unsteady on his feet. [Indeed,] the Motor Vehicle

Recording (hereinafter “MVR”) [demonstrated] Appellant

almost falling over on several occasions during his interaction

with Officer McAlester. As a result, Officer McAlester [asked]

Appellant [if he consumed] alcohol or [any] controlled

substances [that evening]. Appellant admitted to consuming

one beer that evening. … Officer McAlester [then] radioed for

backup and [conveyed his belief] that Appellant was driving

[the motorized bicycle] while under the influence.

[A] second law enforcement officer arrived on-scene [shortly

thereafter and directed Appellant] to perform Standard Field

Sobriety Tests (hereinafter “SFSTs”). At that time, Appellant

[told] the officers . . . that he crashed his [motorized bicycle]

earlier in the evening, [and] display[ed] visible injuries

including blood on his knee and a swollen ankle. Because of

[Appellant’s] injuries, the officers selected SFSTs [that] would

not require Appellant to use his injured leg. [In particular,]

Appellant was asked to perform a one-leg stand[] and divided

attention test[. When] Appellant performed [the

aforementioned] SFSTs, the officers noted “clues” indicating

impairment for both tests. Specifically, Appellant was unable

to perform the one-leg stand[] and Appellant was unable to

keep his head still while tracking Officer McAlester’s finger. [In

addition to the SFSTs performed], Officer McAlester prepared

his portable breathalyzer (hereinafter “PBT”) machine and

directed Appellant to perform a PBT test. The test gave a

positive return for the presence of alcohol. Thereafter,

Appellant was arrested for driving under the influence [(“DUI”)]

and [other] related charges.

Trial Court Opinion, 7/7/23, at 2-4 (footnote added) (parallel citations and

footnotes omitted).

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J-S20009-24

On April 3, 2023, a non-jury trial was conducted during which Officer

McAlester and Appellant testified. Ultimately, Appellant was convicted of DUI

– general impairment and driving under suspension - DUI related.2 On May

16, 2023, the trial court sentenced Appellant to pay the cost of prosecution,

a total fine of $1,300.00,3 and to undergo a period of supervision for six

months. This timely appeal followed.

Appellant raises the following issue on appeal:

Was the evidence sufficient to find Appellant guilty of [DUI -]

general impairment[] in that[] the Commonwealth failed to

establish, beyond a reasonable doubt, [that Appellant was

incapable of safe driving]?

Appellant’s Brief at 6.

Herein, Appellant claims that the Commonwealth presented insufficient

evidence to support his conviction for DUI – general impairment. More

specifically, Appellant argues that the Commonwealth failed to “sufficiently

show that he was incapable of safely riding his [motorized bicycle]” because

he “conducted himself well enough” during the interaction with Officer

McAlester. Appellant’s Brief at 27.

____________________________________________

2 75 Pa.C.S.A. § 3802(a)(1) and 75 Pa.C.S.A. § 1543(b)(1)(ii), respectively.

3 A review of the sentencing transcripts reveals that Appellant’s counsel invited

the trial court to impose fines and costs, that the trial court specified the

amount of fines Appellant was required to pay, and Appellant had the

opportunity to be heard on the subject. See N.T. Sentencing Hearing,

5/16/23, at 2-3. As such, we find that the trial court complied with 42

Pa.C.S.A. § 9726(c) (explaining that a trial court “shall not sentence a

defendant to pay a fine unless it appears of record that the defendant is or

will be able to pay it.”).

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J-S20009-24

We review Appellant's sufficiency of the evidence challenge under the

following standard:

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at trial in

the light most favorable to the verdict winner, there is sufficient

evidence to enable the fact-finder to find every element of the

crime beyond a reasonable doubt. In applying the above test,

we may not weigh the evidence and substitute our judgment

for [that of] the fact-finder. In addition, we note that the facts

and circumstances established by the Commonwealth need not

preclude every possibility of innocence. Any doubts regarding

a defendant's guilt may be resolved by the fact-finder unless

the evidence is so weak and inconclusive that as a matter of law

no probability of fact may be drawn from the combined

circumstances. The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt

by means of wholly circumstantial evidence. Moreover, in

applying the above test, the entire record must be evaluated

and all evidence actually received must be considered. Finally,

the trier of fact 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. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations

and quotation marks omitted).

Appellant was convicted of violating 75 Pa.C.S.A. § 3802(a)(1).

Subsection 3802(a)(1) of the Motor Vehicle Code declares:

(a) General impairment.--(1) 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.A. § 3802(a)(1).

This Court previously explained:

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J-S20009-24

[T]he Commonwealth [must] 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. With respect to the type, quantum, and quality of

evidence required to prove a general impairment violation

under Section 3802(a)(1), the Pennsylvania Supreme Court

[has previously stated]:

Section 3802(a)(1) . . . is a general [impairment] provision

and[, as such, 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. ... 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; demeanor, including toward the

investigating officer; physical appearance, particularly

bloodshot eyes and other 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. Blood alcohol level is admissible in a

subsection 3801(a)(1) case only insofar as it is relevant to

and probative of the accused's ability to drive safely at the

time he or she was driving. 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.

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (citations

omitted).

Upon review, we conclude that Appellant is not entitled to relief. Indeed,

at trial, the Commonwealth presented evidence and testimony demonstrating

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J-S20009-24

that, when Officer McAlester first encountered Appellant, he was “swerving in

between the lines of the roadway, while his vehicle’s operating lights were

turned off, at night.” Trial Court Opinion, 7/7/23, at 6. Officer McAlester

initiated a traffic stop, but it took Appellant approximately a minute to pull

over. Officer McAlester then approached Appellant who was “wearing

sunglasses, despite it being almost 10:30 [p.m.].” Id. at 7. Upon approach,

Officer McAlester noted that Appellant exhibited signs of intoxication including

bloodshot eyes, slurred speech, and an unsteady gait. Officer McAlester also

stated that he detected an odor of alcohol emanating from Appellant’s person.

Officer McAlester asked Appellant if he consumed any alcohol and Appellant

admitted to drinking “one beer” earlier that evening. N.T. Trial, 4/3/23, at

15. In addition, Appellant informed Officer McAlester that he was just involved

in an accident on his motorized bicycle, resulting in an injury to his ankle and

knee. Based upon the forgoing, Officer McAlester asked Appellant to perform

two SFSTs, namely, a one-leg stand and a divided attention test, both of which

Appellant was unable to perform. Finally, Officer McAlester directed Appellant

to perform a PBT test which revealed the presence of alcohol. Thus, viewing

the aforementioned evidence in a light most favorable to the Commonwealth,

we conclude that the Commonwealth presented sufficient evidence to sustain

Appellant’s conviction for DUI – general impairment.

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J-S20009-24

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 9/30/2024

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