The opinion
J-S60044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SCOTT E. RIGGAN :
:
Appellant : No. 755 MDA 2018
Appeal from the Judgment of Sentence December 20, 2017
in the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0002000-2016
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 20, 2018
Scott E. Riggan (Appellant) appeals from his December 20, 2017
judgment of sentence imposed after he was found guilty of driving under the
influence of alcohol (DUI)–general impairment and a summary offense relating
to driving a vehicle within a single lane. We affirm.
The trial court provided the following factual summary.
Trooper [James] Paparella testified that on June 10, 2016,
at approximately 6:00 p.m., he received a dispatch call for a
reported [] single-vehicle accident involving a motorcycle[,] with
the operator [lying] in the middle of the road. When Trooper
Paparella arrived on the scene, he observed the motorcycle, which
ha[d] sustained heavy damage, [lying] in the southbound lane,
and noticed debris from the motorcycle had been drug across the
center line[,] indicating that the motorcycle had been traveling in
the northbound lane. Trooper Paparella spoke with EMS on the
scene[,] who directed [Trooper Paparella] to the motorcycle
operator, identified as [Appellant], in the back of an ambulance.
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* Retired Senior Judge assigned to the Superior Court.
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Trooper Paparella then spoke with [Appellant], who was lying on
a stretcher in the back of the ambulance. As he spoke with
[Appellant], Trooper Paparella stated that he was inches away
from [Appellant] and could smell the overwhelming odor of
alcohol. Trooper Paparella also indicated that [Appellant’s] eyes
were bloodshot and his speech was slurred while [Trooper
Paparella] asked him questions. When Trooper Paparella asked
[Appellant] if he had been drinking, [Appellant] responded that he
had three drinks about twenty minutes prior to the accident.
When asked about what caused the accident, [Appellant] replied
that he “lost control and [] crashed.” Trooper Paparella stated
that he did not perform any field sobriety tests because the
priority was to take care of [Appellant’s] injuries.
Trooper Paparella prepared a crash report after the initial
investigation. …[T]he weather conditions were dry and clear and
there was still daylight outside. Trooper Paparella indicated that
there were no potential weather, environmental[,] or roadway
conditions that appeared to be a factor in the accident.
On cross-examination, Trooper Paparella admitted that he
had not actually seen [Appellant] driving the motorcycle as
[Appellant] was in the ambulance when [Trooper Paparella]
arrived on the scene. Trooper Paparella also admitted that he had
not taken specific measurements at the accident scene to
determine speed or performed an extensive investigation as to
other possible causes of the accident. Trooper Paparella further
indicated that he could[ not] be certain that medications received
in treatment by EMTs or injuries sustained could have caused
[Appellant’s] slurred speech and bloodshot eyes.
[Appellant] then called Wade Bartlett (“Bartlett”) to testify.
Bartlett has an extensive background in mechanical engineering
and was qualified to give his expert opinion in the area of accident
reconstruction. Bartlett testified as to various extensive research
into motorcycles and crash statistics and then offered his opinion
that[,] based on the information provided in Trooper Paparella’s
report and his review of other materials including maps of the
area, he could not conclude [whether] alcohol was a contributing
factor to the accident or not.
Trial Court Opinion, 4/20/2018, at 2-3 (citations to the record omitted).
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Following the trooper’s investigation, Appellant was charged with two
DUI offenses and two summary offenses. A nonjury trial was held on August
29, 2017. The trial court found Appellant guilty of the DUI–general
impairment offense charged pursuant to 75 Pa.C.S. § 3802(a)(1) and a
summary offense relating to driving within a single lane, and not guilty of a
summary offense relating to driving at a safe speed.1 On December 20, 2017,
the trial court sentenced Appellant to 48 hours to 6 months of incarceration.
Appellant timely filed a post-sentence motion challenging, inter alia, the
weight of the evidence, which the trial court denied. This timely-filed appeal
followed. Appellant complied with Pa.R.A.P. 1925(b), and the trial court, in
lieu of a Rule 1925(a) opinion, directed us to its April 20, 2018 opinion denying
Appellant’s post-sentence motion.
On appeal, Appellant challenges the sufficiency of the evidence
supporting his DUI–general impairment conviction. Appellant’s Brief at 4. He
also contends that the trial court abused its discretion by denying his post-
sentence motion challenging the weight of the evidence. Id. at 4, 21.
With respect to his sufficiency claim, the following principles apply.
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact to
find that each element of the crimes charged is established beyond
a reasonable doubt. The Commonwealth may sustain its burden
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1The Commonwealth nolle prossed the DUI–highest rate offense charged
pursuant to 75 Pa.C.S. § 3802(c).
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of proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt raised
as to the accused’s guilt is to be resolved by the fact-finder. As
an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record. Therefore, we will not
disturb the verdict 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.
Commonwealth v. Wanner, 158 A.3d 714, 717-18 (Pa. Super. 2017)
(citations and quotations omitted).
The crux of Appellant’s argument is that there was insufficient evidence
to prove Appellant was “substantially impaired to a degree which rendered
him incapable of driving safely.” Id. at 13-14. Thus, we bear in mind the
following. Subsection 3802(a)(1) of the Vehicle Code provides:
(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. § 3802(a)(1). As this Court has explained,
[w]ith respect to the type, quantum, and quality of evidence
required to prove a general impairment violation under
[Subs]ection 3802(a)(1) … :
[Subs]ection 3802(a)(1), like its predecessor [DUI
statute], is a general provision and provides 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.
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…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.
***
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. Eichler, 133 A.3d 775, 790 (Pa. Super. 2016), quoting
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). The “classic signs
of intoxication [include] red, glassy eyes and slurred, slow speech.”
Commonwealth v. Teems, 74 A.3d 142, 147 (Pa. Super. 2013).
The trial court offered the following in support of its determination that
Appellant was incapable of safely driving due to alcohol consumption.
[A] police officer, having perceived a defendant’s appearance and
acts, is competent to testify upon opinion as to the defendant’s
state of intoxication and ability to drive a vehicle safely.
Com[monwealth] v. Neiswonger, 488 A.2d 68, 70 (Pa. Super.
1985). Trooper Paparella observed [Appellant’s] bloodshot and
glass[y] eyes, his slurred speech[,] and the strong odor of alcohol,
which was amplified as he moved closer to [Appellant. Appellant]
also admitted to having three drinks twenty minutes prior to the
accident.
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It is true that [some of Appellant’s] symptoms could have
resulted from the injuries sustained or from the treatment thereof.
However, the Commonwealth is not tasked to invalidate every
possibility of innocence. “Rather, the court needed only to be
convinced beyond a reasonable doubt.” Com[monwealth] v.
Sibley, 972 A.2d 1218, 1220 (Pa. Super. 2009). Moreover, the
fact that Trooper Paparella failed to administer any field sobriety
tests is not dispositive as “the law is well settled that reasonable
grounds to arrest does not require the failure of field sobriety
tests.” Com[monwealth] v. Slonaker, 795 A.2d 397, 402 (Pa.
Super. 2002).
Upon review of all the testimony and evidence at trial, and
upon weighing the totality of the circumstances, [the trial court]
found [Appellant] guilty of driving under the influence of alcohol
after imbibing a sufficient amount of alcohol so as to render him
unable to safely operate the motorcycle. In [its] analysis, [the
trial court] noted that [it] did not infer from the accident itself
[Appellant’s] inability to drive safely. [It] also acknowledged that
the accident or subsequent treatment might have contributed to
[Appellant’s] slurred speech. Nevertheless, [the trial court]
concluded that the bloodshot eyes, strong scent of alcohol[,] and
admission to drinking provided the overwhelming factor[s] in
weighing the totality of the circumstances to convince [the trial]
court of [Appellant’s] guilt beyond a reasonable doubt.
Trial Court Opinion, 4/20/2018, at 6-7.
Here, Appellant admitted he was driving, and thus the first element of
the offense is satisfied. N.T., 8/29/2017, at 90. However, he argues on
appeal that because the trial court did not consider his motorcycle accident as
evidence of his impairment, and because slurred speech and bloodshot eyes
could have been caused by the accident and medical treatment he received at
the scene, the remaining evidence, i.e., an odor of alcohol and his admission
to drinking three drinks, was not enough to prove he was incapable of safely
driving. Appellant’s Brief at 13.
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Viewing the evidence at trial and all reasonable inferences therefrom in
the light most favorable to the Commonwealth, we find that the trial court, as
factfinder, could reasonably conclude from the totality of the circumstances
that Appellant was incapable of safely driving due to alcohol consumption.
Our review of the record reflects Trooper Paparella testified that, upon
entering the ambulance where Appellant was being treated, he “smelled an
overwhelming odor of alcoholic beverage.” N.T., 8/29/2017, at 11. As he
spoke with Appellant, Trooper Paparella was only inches away from him and
noticed the odor of alcohol smelled “even stronger.” Id. at 10-11. He stated
that Appellant’s eyes were bloodshot and his speech was slurred and slow as
he asked Appellant questions. Id. at 11. Based on his training and
experience, these signs indicated to Trooper Paparella that Appellant was
under the influence of alcohol. Id. In addition, when Trooper Paparella asked
Appellant whether he had been drinking, Appellant responded that “he had
three drinks … 20 minutes before he crashed.” Id. at 12. When Trooper
Paparella asked him what caused the accident, Appellant replied that he “lost
control and [] crashed.” Id. Trooper Paparella opined that no potential
weather, environmental, or roadway conditions appeared to be a factor in the
accident because at the time of accident, it was daylight, the weather
conditions were dry and clear, and the accident occurred on a straightaway
section of the road. Id. at 14-15.
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We agree with the trial court that Appellant’s emitting an overwhelming
odor of alcohol, physical signs of intoxication, and admission to drinking three
drinks 20 minutes prior to the accident are sufficient to support the inference
that Appellant was incapable of safely driving due to alcohol consumption.
See Eichler, 133 A.3d at 790. Based on the foregoing, when viewing all the
evidence at trial in the light most favorable to the Commonwealth, we
conclude that the Commonwealth introduced sufficient evidence to sustain
Appellant’s DUI–general impairment conviction.
We now turn to Appellant’s second claim, where he contends
alternatively that the verdict is contrary to the weight of the evidence. See
Appellant’s Brief at 19-21. His weight-claim is based on the trial court’s
determination that his slurred speech and bloodshot eyes were caused by
alcohol and not some other factor. Id. at 21.
The following standard is applicable to challenges to the trial court’s
discretion in determining whether the verdict is against the weight of the
evidence.
The decision of whether to grant a new trial on the basis of a
challenge to the weight of the evidence is necessarily committed
to the sound discretion of the trial court due to the court’s
observation of the witnesses and the evidence. A trial court
should award a new trial on this ground only when the verdict is
so contrary to the evidence as to shock one’s sense of justice. A
motion alleging the verdict was against the weight of the evidence
should not be granted where it merely identifies contradictory
evidence presented by the Commonwealth and the defendant.
Our review on appeal is limited to determining whether the trial
court abused its discretion in denying the motion for a new trial
on this ground.
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Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations
omitted). “Not merely an error in judgment, an abuse of discretion occurs
when the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence on record.” Commonwealth v. Handfield, 34
A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d
3, 6 (Pa. Super. 2011)).
Because we find sufficient evidence to establish Appellant was incapable
of safely driving due to alcohol consumption, we discern no abuse of discretion
in the trial court’s denial of his post-sentence motion. Because this was a
non-jury trial, the verdict clearly did not shock the trial court’s sense of justice.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2018
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