The opinion
J-A26014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICKY EDWARD LARSON,
Appellant No. 4 MDA 2014
Appeal from the Judgment June 21, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000601-2012
BEFORE: BOWES, MUNDY, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 16, 2014
Ricky Edward Larson appeals from the judgment of sentence of two
days to six months incarceration imposed after the trial court found him
guilty of driving under the influence of alcohol (“DUI”) high rate and DUI
general impairment. We affirm.
The trial court delineated the following relevant facts.
On December 17, 2011, multiple [Pennsylvania State
Police (“PSP”)] Troopers responded to the scene of a two vehicle
crash that took place on Pennsylvania Route 934 in northern
Lebanon County. According to the investigation that ensued, a
vehicle operated by [Appellant] was traveling south on Route
934. A pick-up truck operated by an individual whose name was
not disclosed pulled into [Appellant’s] lane of travel and stopped.
[Appellant] was not able to avoid the pick-up truck and a
collision occurred. According to Trooper Brian Jasinski,
[Appellant] enjoyed at least one hundred yards of clear visibility
as he was proceeding toward the scene of the accident. Trooper
Jasinski testified that [Appellant] could and should have avoided
the stopped pick-up truck.
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Following the crash, Trooper Travis Messenger interacted
with [Appellant]. He noticed an odor of alcohol, slurred speech,
as well as bloodshot, glassy eyes. He testified that [Appellant]
was swaying as he walked. In addition, [Appellant] advised
Trooper Messenger that he and his wife were driving from the
Hollywood Casino, where each had been drinking alcohol. After
observing these characteristics, Trooper Messenger asked
[Appellant] to submit to field sobriety tests. [Appellant] refused.
Based upon all of these facts, Trooper Messenger determined
that [Appellant’s] physical and mental state would prevent him
from safely operating his motor vehicle. Tooper Messenger
placed [Appellant] under arrest for suspicion of DUI and
transported him to the PSP Barracks in Jonestown, Pennsylvania
for processing.
When [Appellant] was taken to the PSP Barracks for
processing, he was turned over to Trooper Christopher O’Brien, a
certified Datamaster breath test operator and a certified
Datamaster maintenance operator. Trooper O’Brien performed a
breath test upon [Appellant]. According to Trooper O’Brien,
[Appellant] provided two breath samples. One resulted in a
reading of .170 [blood alcohol content (“BAC”)] and the other
resulted in a [BAC] reading of .173.
A [p]re-[t]rial [h]earing was held on August 22, 2012 for
[Appellant’s] [o]mnibus [p]retrial [m]otion to [s]uppress. At
that [h]earing, [Appellant] argued that Trooper Messenger
lacked sufficient probable cause to arrest [Appellant]. The
[c]ourt heard testimony from Troopers Jasinski and Messenger
about the occurrences of the December 17, 2011 accident.
Based on [the] totality of the circumstances, [the] [c]ourt
disagreed with [Appellant’s] premise and found sufficient
probable cause for the arrest.
A bench trial was held on June 21, 2013, at which several
witnesses testified, including expert witness Dr. Jimmy
Valentine. Dr. Jimmy Valentine provided expert testimony and
corresponding charts in support of his position that the
Datamaster device was unreliable. In [the trial court’s] July 1,
2013 [o]pinion, after considering Dr. Valentine’s testimony in
light of all other evidence and testimony, [the court] concluded
that the Datamaster’s findings were reliable enough to determine
beyond a reasonable doubt that the [Appellant’s] blood alcohol
content exceeded .10 percent.
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Trial Court Opinion, 2/6/14, 3-5.
The court found Appellant guilty of DUI--high rate as a lesser included
offense of the charged crime of DUI—highest rate, and DUI general
impairment. The court sentenced Appellant on the DUI high rate charge to
two days to six months imprisonment and imposed no further penalty on the
additional charge. Appellant filed a timely post-sentence motion, which the
trial court denied by order and opinion on November 25, 2013. This appeal
ensued. The trial court directed Appellant to file and serve a concise
statement of errors complained of on appeal. Appellant complied, and as it
relates to the issues presented herein, the trial court indicated in its
Pa.R.A.P. 1925(a) opinion that the reasons for its decision could be found in
its November opinion. The matter is now ready for our consideration.
Appellant sets forth two issues for this Court’s review.
1. Whether the [t]rial [c]ourt erred in finding the Appellant
guilty of 75 Pa.C.S.A. § 3802(b) because said verdict was
against the weight of the evidence as the [Appellant’s] result
as presented by the Commonwealth was not shown to be
scientifically reliable or trustworthy. The expert qualified for
the defense elaborated on numerous areas of concern
including the provided breath flow rates for the duplicate
breath samples, volume of Appellant’s breath samples, the
machine being taken out of service on four occasions within
twelve months, the accuracy testing done by using the same
lot of solution as the calibration, and breath test
temperatures. These were specific allegations of error
supported by scientific, peer reviewed data and
notwithstanding all the facts, these facts were so clearly of
greater weight that to ignore them or to give them equal
weight with all the facts denied justice.
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2. Whether the trial court’s verdict of guilt as to DUI: General
Impairment was against the weight of the evidence because
the Commonwealth’s evidence did not establish that the
[Appellant’s] mental and physical faculties were impaired
such that he could not safely operate a motor vehicle?
Appellant’s brief at 1.
As both of Appellant’s issues implicate the weight of the evidence, we
address them together. Our standard and scope of review for evaluating
weight of the evidence claims is settled. “Appellate review of a weight claim
is a review of the exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.” Commonwealth
v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis removed). Accordingly,
“[o]ne of the least assailable reasons for granting or denying a new trial is
the lower court's conviction that the verdict was or was not against the
weight of the evidence and that a new trial should be granted in the interest
of justice.” Id.
A trial judge should not grant a new trial due to “a mere conflict in the
testimony or because the judge on the same facts would have arrived at a
different conclusion.” Id. Instead, the trial court must examine whether
“‘notwithstanding all the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
justice.’” Id. Only where the jury verdict “is so contrary to the evidence as
to shock one's sense of justice” should a trial court afford a defendant a new
trial. Id. A weight of the evidence issue concedes that sufficient evidence
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was introduced. Commonwealth v. Charlton, 902 A.2d 554, 561
(Pa.Super. 2006).
Appellant’s argument boiled down to its simplest statement is that the
expert testimony of Dr. Valentine established that the BAC test results in this
case were wholly unreliable. According to Appellant, to find that the BAC
test results in this case indicated that Appellant had at least a BAC of .10 to
.16, rather than accept the extensive testimony of his expert, was to give
the test results greater or equal weight than was warranted and denied
justice.
We summarize Dr. Valentine’s testimony. Dr. Valentine, an expert
who has testified solely on behalf of the criminal defense bar, opined that
the DataMaster DMT machine used in this case required a volume of at least
1.5 liters of air. Appellant provided 2.0 liters for the test that yielded a .170
BAC and 3.0 liters for the test that resulted in a .173 BAC. According to Dr.
Valentine, the greater the volume of air blown into the machine, the higher
the BAC the machine yields. He posited that Appellant’s tests were
unreliable because of the elevated volume of breath.
In addition, Dr. Valentine asserted that the simulator solutions used to
test a breath test machine are calibrated at 34 degrees centigrade, but that
human breath is not always that temperature. The higher the breath
temperature, the higher the BAC result. Human breath is on average 34.9
degrees centigrade. Dr. Valentine also was troubled by the fact that the
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machine in this case had been taken out of service four times, although he
had no knowledge of why that occurred.
Dr. Valentine further took issue with the manner in which the
Pennsylvania State Police tested the machine’s accuracy. To test the
breathalyzer, a solution simulating a .10 BAC was used. In Dr. Valentine’s
view, the Commonwealth used a solution from the same lot number in its
accuracy test as its calibration test. According to Dr. Valentine, if you utilize
the same solution for calibration and accuracy testing, the machine is told
what to expect. Instead, Dr. Valentine maintained that calibration testing
should be done with a solution from a totally different source. Dr. Valentine
admitted that the PSP used different bottles of solution, but since those
bottles were coming from the same lot, the solution was the same.
Further, Dr. Valentine questioned the manner in which the PSP
calibrated the machine. He noted that the machine was calibrated
measuring a BAC between .05 and .15. Since Appellant’s BAC exceeded that
range, he reasoned that one could not, in scientifically reliable fashion,
determine the accuracy of the test. He recognized that after Appellant’s
test, the PSP tested the machine at ranges of .20, .25, and .30, but
contended that there was no scientific basis to extrapolate those results to
Appellant’s earlier test.
In contrast, Trooper O’Brien testified that the breath test machine he
used in this matter was certified to conduct BAC tests. He further stated
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that the machine was properly calibrated. The calibration check indicated
that the machine was providing test results within the acceptable ranges of
the true BAC. Trooper O’Brien also asserted that the machine used in this
case was verified to be accurate, and that the BAC results were .170 and
.173. The Commonwealth introduced into evidence certificates of breath
test device accuracy and breath-testing device calibration.
The trial court here was free to reject the testimony of Appellant’s
expert as to the total unreliability of Appellant’s BAC testing and accept
Trooper O’Brien’s testimony. The court specifically found Trooper O’Brien
credible and credited his testimony. It determined that the solution used to
test the accuracy of the machine was not provided by the manufacturer of
the machine and was independently verified by two separate laboratories.
Nonetheless, the court did opine that it could not find beyond a reasonable
doubt that Appellant’s BAC was .170. However, it found it illogical to
conclude that the machines results were so unreliable that Appellant’s BAC
did not fall within the mid-level DUI range. In doing so, the court reasoned,
To accept [Appellant’s] argument, one would have to
believe that the linear progression created by the Datamaster
machine would make an abrupt and dramatic u-turn as soon as
the instrument response exceeded the amount necessary to
generate a .15 blood alcohol result. To believe that the linear
progression would make such a “u-turn” one would have to
conclude that two different “instrument responses” would trigger
the exact same blood alcohol reading. It is neither logical nor
likely that the linear progression line described by Dr. Valentine
would make a dramatic u-turn in order to create a situation
where two separate instrument responses would generate the
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exact same blood alcohol content for every BAC reading between
.08 and .15.
Trial Court Opinion, 7/1/13, at 15 (footnote omitted).
The court added that the evidence demonstrated that the machine in
this case was accuracy checked after Appellant’s testing for solutions of .20
and .30 percent, in 2013, and worked properly. It opined that this was
circumstantial evidence that the Datamaster machine was capable of
accurately measuring BAC results that exceeded .15 percent at the time of
Appellant’s tests. We find that the trial court did not abuse its discretion in
using this reasoning to find that its verdict was not so contrary to the
evidence that it shocked the trial court’s conscience.
Moreover, the facts demonstrate that Appellant was unable to stop his
vehicle from striking another despite ample visibility and time to do so.
Appellant had slurred speech, swayed while standing, had bloodshot eyes,
indicated that he had been drinking, and refused field sobriety tests. All of
this is circumstantial evidence that Appellant was driving under the
influence. Accordingly, we find his second weight of the evidence issue
relative to his general impairment charge to be wholly without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2014
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