Commonwealth v. Rakowski ( 2010 )

OPINION BY

POPOVICH, J.:

¶ 1 Appellant Francis Nicholas Rakow-ski, Jr., appeals the judgment of sentence for driving under the influence of alcohol (DUI) in violation of 75 Pa.C.S.A. § 3802(c) on grounds that: 1) the evidence was insufficient to sustain his conviction; 2) the verdict was against the weight of the evidence; and 3) the jury’s entry of inconsistent verdicts warrants a vacation of the judgment of sentence. After careful review, we affirm.

¶ 2 The facts and procedural history of this case are as follows:

This appeal arises from Appellant’s conviction for a second offense DUI highest rate. On November 20, 2007, Pennsylvania State Trooper Justin Dem-bowski received a radio call that two vehicles had encountered some debris on Interstate 83 in the southbound lane in Fairview Township, York County. Upon arriving at the scene around 7:00 a.m., the [trooper] saw the two cars and approached the nearer vehicle. The driver, Appellant, appeared to be asleep and was startled when the [trooper] awoke him. When Appellant opened his car door, [Trooper] Dembowski detected the odor of alcohol in the vehicle and emanating from Appellant, whose speech was slurred. Since there was no suitable terrain nearby for a field sobriety test, [Trooper] Dembowski immediately placed Appellant under arrest for DUI and took him to York Hospital to determine his blood alcohol content.

On July 7, 2008, a jury found Appellant guilty of second offense DUI highest rate. [The trial court] sentenced Appellant on August 27, 2008. Appellant filed a post-sentence motion on September 8, 2008, for which [the trial court] held a hearing on October 20, 2008 [...]. [The trial court] denied Appellant’s post-sentence motion, and this appeal timely followed.

Trial court opinion, 1/13/09, at 1-2. As noted above, Appellant raises three issues for our consideration, the first of which claims:

THE EVIDENCE WAS INSUFFICIENT FOR THE JURY TO CONVICT AS TO DUI/COUNT II AS IT RELATES TO THE BLOOD ALCOHOL LEVEL, AS WELL AS IT RELATES TO THE “CONTROL/OPER-ABILITY” OF THE VEHICLE.

Appellant’s “Statement of Matters Complained of Pursuant to Rule of Appellate Procedure 1925(b),” 12/5/08; Record No. 25.

¶ 3 In reviewing a sufficiency of the evidence claim, the standard of review is well settled. This Court must determine whether the evidence and all reasonable inferences deducible therefrom, when viewed in the light most favorable to the verdict-winner, here the Commonwealth, are sufficient to establish all elements of the crime charged beyond a reasonable doubt. Commonwealth v. Parker, 957 A.2d 311, 317 (Pa.Super.2008) (citation omitted).

¶ 4 Under 75 Pa.C.S.A. § 3802(c), 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 alcohol concentration in the individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated, or been in actual physical control of the movement of the vehicle.

¶ 5 The facts, when viewed in the light most favorable to the verdict-winner, establish that Pennsylvania State Trooper Justin Dembowski was working the 6:00 a.m. to 2:00 p.m. shift on the 20th day of November, 2007. Trooper Dembowski received a radio dispatch to investigate debris reported on the roadway at mile marker 38 southbound on Interstate 83, which is in York County. Trooper Dem-bowski was also advised that vehicles had hit the debris and were disabled at that location. This call was received by Trooper Dembowski “[e]arly in the morning just after getting dressed in uniform and getting in [his] car ready to go [...].” N.T. Jury Trial, 7/8/08, at 19.

¶ 6 Once Trooper Dembowski arrived on the scene, he observed two disabled vehicles on the side of the road. He parked behind the vehicle second in line, which upon investigation disclosed that Appellant was behind the steering wheel and appeared to be sleeping. When Trooper Dembowski knocked on the driver’s window, Appellant “jerked” his head up and looked at the trooper. During Trooper Dembowski’s conversation with Appellant, he noticed an odor of alcohol on Appellant’s breath and that his eyes were bloodshot and glassy. Thereafter, Trooper Dembowski asked Appellant to exit the vehicle because he “did believe that [Appellant] was under the influence of [an] alcoholic beverage [...].” N.T. Jury Trial, 7/8/08, at 22. No field-sobriety tests were performed at that time (7:00 a.m.) because Interstate 83 southbound had “a considerable amount of traffic,” the terrain was not level (because of a severe incline), and for the safety of both Appellant and Trooper Dembowski. Id. at 23.

¶7 When Appellant exited his vehicle, he was placed under arrest for DUI. Further, Trooper Dembowski did an inventory search of Appellant’s vehicle and found no contraband or weapons. More particularly, Trooper Dembowski “didn’t find any alcoholic beverages in the vehicle, [but he] did observe that the keys were actually in the ignition of the vehicle [... ].” N.T. Jury Trial, 7/8/08, at 24. Once Appellant’s vehicle was towed, he was transported to York Hospital “[s]hortly before 8:00 [a.m.,]” and his blood was drawn with his consent at 8:00 a.m. Id. The parties stipulated that the BAC was .188 percent.

¶ 8 At trial, Trooper Dembowski testified that he questioned Appellant at the preliminary hearing concerning the type and amount of alcoholic beverages he consumed “before” driving the morning of the accident. “[Appellant] had a list of several drinks that he recalled consuming prior to being arrested. He had a time frame where he advised that he had at least four drinks. He advised that he was drinking Rumplemint, which I believe he said was a flavored liquor.” N.T. Jury Trial, 7/8/08, at 27. Furthermore, Trooper Dembowski asked Appellant when he hit the object in the roadway, “and [Appellant] approximated the time that he struck the debris between 0610 and 0615[,]” which was within the two-hour window to draw one’s blood pursuant to Section 3802. Id.

¶ 9 The second vehicle disabled by the debris was driven by Scott H. Peck. Mr. Peck testified that his vehicle was not the first to make contact with the debris. In other words, albeit he did not witness Appellant strike the debris, he did observe that Appellant’s vehicle was parked on the side of the road with its “four-ways on” and the vehicle “running at the time.” N.T. Jury Trial, 7/8/08, at 32, 34. When Mr; Peck struck the debris, he put his four-ways on and pulled alongside the road, all of which occurred at approximately 6:30 a.m. on November 20, 2007. Id. at 31, 35. Appellant and Mr. Peck conversed on at least two occasions exchanging information about having used their cell telephones to call “911” and making contact with the debris in the southbound lane of Interstate 83. Id. at 37. Mr. Peck also recalled using his cell phone and Trooper Dembowski arriving “about 20 minutes after we hit it[, i.e., the debris].” Id. at 32. Mr. Peck stated Trooper Dembowski’s arrival time was around “say 7, 7:15.” Id. at 35. Lastly, during re-direct examination by the Commonwealth, Mr. Peck stated that he did not see Appellant drink anything while at the scene. Id. at 36. This prompted the following exchange between Appellant and Mr. Peck:

[Appellant:]

Q. I have already determined that it was dark. I would not have recognized you had I not seen you at the preliminary [hearing]. Again not being that close to you, would you think you would have been able to see if I was drinking something from your vehicle?

[Mr. Peck:]

A. Yes.

Q. Were you looking for me to be doing so?

A. I got out a couple times, but you got out too. We had a couple [of] conversations, maybe two I think.

Q. Do you recall PennDOT getting there before the officer?

A. Yeah, they came by right before the officer.

Q. So the officer was not the first person on the scene. Did you call Penn-DOT?

A. No, I called 911.

[Appellant]: Called 911. I called them as well [...].

N.T. Jury Trial, 7/8/08, at 36-37 (emphasis added).

¶ 10 Viewing the evidence in the light most favorable to the verdict-winner, and drawing all reasonable inferences therefrom, the jury was justified in concluding that Appellant was driving his vehicle at 6:10 a.m. or 6:15 a.m., which was the time admitted by Appellant to striking the debris upon questioning by Ti*ooper Dem-bowski. Appellant’s contention that Trooper Dembowski never testified that he asked Appellant at the scene what time his car hit the debris is refuted by the record. See N.T. Jury Trial, 7/8/08, at 27 (Trooper Dembowski asked and Appellant testified at the preliminary hearing that “he approximated the time that he struck the debris between 0610 and 0615.”).

¶ 11 Next, Mr. Peck recalled making contact with the debris on Interstate 83 at approximately 6:30 a.m. and observing Appellant’s vehicle also disabled on the side of the road at that time with the engine running. Thereafter, Mr. Peck used his cell phone to call “911,” and Trooper Dem-bowski arrived at approximately 7:00 a.m., which this time is consistent with the testimony of Trooper Dembowski. Lastly, during the passage of time between Appellant’s admission to driving to Trooper Dembowski (6:10 a.m. or 6:15 a.m.), Mr. Peck’s accident (6:30 a.m.), and Trooper Dembowski’s arrival on the scene (7:00 a.m.), Mr. Peck testified without equivocation that he did not witness Appellant consume anything during this hiatus of police presence on the scene, which is at odds with Appellant’s account of consuming alcohol “after” the accident while seated in his vehicle waiting for roadside service. N.T. Jury Trial, 7/8/08, at 44 (Appellant testified on cross-examination to drinking, while sitting in his vehicle, “some [Rumple Minze] and club sodaf.]”).¹ The jury’s verdict discounted Appellant’s consumption of alcohol after the accident in favor of Mr. Peck’s recitation of witnessing no consumption of any beverages by Appellant prior to the arrival of the police, which likewise undermines Appellant’s position that the Commonwealth presented no evidence to refute the “possibility” that Appellant ingested alcohol after the accident.

¶ 12 Given the disparate accounts of events by the Commonwealth’s witnesses and Appellant, it was for the jury, as the finder of fact and credibility-assessor, to weigh the evidence and to choose whom to believe. See Commonwealth v. Larsen, 452 Pa.Super. 508, 682 A.2d 783, 788 (1996). In this case, the veniremen weighed in on the side of the Commonwealth and against Appellant. As a result, we will not invade the jury’s bailiwick in this situation, especially given the fact that the record is supportive of their verdict finding Appellant guilty of violating Section 3802(c) (operating a vehicle after imbibing a sufficient amount of alcohol such that alcohol concentration in individual’s blood is 0.16% or higher within two hours after individual has operated a vehicle). Contrast Commonwealth v. Segida, 912 A.2d 841 (Pa.Super.2006) (failure of Commonwealth to establish when blood drawn and no expert testimony establishing BAC at various points in evening warranted reversal of conviction for DUI pursuant to Section 3802(c)), vacated on other grounds, — Pa. —, 985 A.2d 871 (2009) (Superior Court’s reversal of Section 3802(c) conviction not at issue).

¶ 13 The second issue proffered for our consideration by Appellant avers that the jury’s verdict was against the weight of the evidence. See Record No. 25. The standard of review for a weight of the evidence challenge is exclusively for the finder-of-fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.Super.2006). A verdict is only against the weight of the evidence if it is so contrary to the evidence that it shocks one’s sense of justice. Id. Appellant must also show that the trial court palpably abused its discretion in denying his weight of the evidence claim. Id.

¶ 14 Herein, the jury was satisfied that the evidence was sufficient to conclude beyond a reasonable doubt that Appellant was guilty of contravening Section 3802(c). When the evidence is considered in toto, namely that Appellant’s stipulated blood alcohol content within two hours of his driving was 0.188, we hold that the trial court did not err in finding that the jury’s verdict did not shock its sense of justice nor does the verdict shock this Court’s sense of justice. As a result, we find that Appellant’s weight of the evidence claim lacks merit.

¶ 15 Lastly, Appellant asserts that the verdicts were inconsistent. To explicate, Appellant was charged at Count I with violating 75 Pa.C.S.A. § 3802(a)(1) (general impairment/incapable of driving safely), but the jury could not reach a verdict as to this offense. However, the jury did find Appellant guilty of Count II, which charged a violation of 75 Pa.C.S.A. § 3802(c) (highest rate of alcohol — BAC .16% or higher).²

¶ 16 In this jurisdiction, inconsistent verdicts are not a basis for reversal. Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375, 376-77 (1971). In fact, this Court has held that a conviction of conspiracy, even when coupled -with an acquittal of the underlying overt act of conspiracy, will not be reversed provided the facts are sufficient to sustain the jury’s verdict. See, e.g., Commonwealth v. Cassidy, 423 Pa.Super. 1, 620 A.2d 9, 12 (1993); Commonwealth v. Jackson, 385 Pa.Super. 401, 561 A.2d 335, 339-40 (1989); Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176, 1178 (1982). At bar, we have examined the facts and hold them sufficient in quantity and quality to uphold Appellant’s conviction for violating Section 3802(c). We see no reason for deviating from that finding now. See Larsen, 682 A.2d at 789.

¶ 17 Accordingly, finding no merit in any of Appellant’s claims, we affirm the judgment of sentence.

¶ 18 Judgment of sentence affirmed.

¶ 19 BENDER, J. files a Dissenting Opinion.

1 . Interestingly, Appellant admitted telling Trooper Dembowski he consumed four drinks over a period of nine hours earlier in the evening spanning 7:40 p.m. and 5:30 a.m. on the morning .of the accident. N.T. Jury Trial, 7/8/08, at 43. During instructions, the trial court advised the jury: "It was [Appellant’s] position he consumed alcohol and may have become intoxicated after the car was inoperable. So again those are all relevant considerations for you [the jury], and it is your decision as to whether or not the Commonwealth has proven their case beyond a reasonable doubt.” Id. at 77.

2 . More specifically, Appellant makes reference in his "inconsistent verdicts” claim to the jury’s question inquiring about Count I (DUI general impairment) asking, "[W]hat is control?” The jury was unable to reach a decision as to Count I. See N.T. Jury Trial, 7/8/08, at 81. Nonetheless, the jury did reach a guilty verdict as to Count II (DUI highest rate).