Com. v. Ressman, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1198 EDA 2020
JASON RESSMAN
Appeal from the Order Entered May 26, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002705-2018
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 26, 2021
The Commonwealth appeals from the May 26, 2020 order of the Court
of Common Pleas of Monroe County (trial court) granting in part and denying
in part the post-sentence motion filed by Jason Ressman (Ressman). The
Commonwealth argues that the trial court abused its discretion in holding that
Ressman’s conviction for driving under the influence (DUI)—BAC 0.10%-
0.159% was against the weight of the evidence and that his conviction for
careless driving was supported by insufficient evidence. We affirm.
I.
We glean the following facts from the certified record. On April 29,
2018, Pennsylvania State Police (PSP) Trooper Mark Bower (Trooper Bower)
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* Retired Senior Judge assigned to the Superior Court.
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was on patrol when he observed a vehicle swerving back and forth between
the fog line and the double-yellow line on a two-lane road. Notes of
Testimony, 10/15/19, at 40. When he ran the license plate for the vehicle,
he learned that the registered owner was a woman whose driver’s license was
suspended. Id. After following the vehicle for approximately one mile, he
initiated a traffic stop. Id. at 41. Ressman was driving the vehicle at the
time. Id.
When speaking with Ressman, Trooper Bower observed a strong odor
of alcohol and noticed that his eyes were glassy and bloodshot and his speech
was slurred. He had Ressman perform standard field sobriety tests and
observed several cues suggesting that Ressman was intoxicated. Trooper
Bower then requested that Ressman submit to a preliminary breath test, but
Ressman refused and requested a blood test instead. Trooper Bower took
Ressman to the Monroe County DUI Center for a blood test, which was
performed approximately one hour after the traffic stop. Id. at 49-50.
Kenneth Mayberry (Technician Mayberry), an employee at the PSP’s
Wyoming Regional Crime Laboratory, testified at trial as an expert regarding
blood alcohol concentration (BAC). Id. at 97-98. Technician Mayberry tested
Ressman’s sample twice via dual-column gas chromatograph to ascertain his
BAC and obtained results of 0.1118% and 0.1114%. Id. at 99-101. He
concluded that Ressman’s BAC was 0.111% plus or minus 0.014. Id. at 104.
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The Commonwealth charged Ressman with DUI—general impairment,
DUI—BAC 0.10%-0.159%, driving without a license, and careless driving.1
Prior to trial, the Commonwealth filed a motion for leave to amend the criminal
information to add a count of DUI—BAC 0.08%-0.09% based on the margin
of error for Ressman’s BAC test results.2 The trial court granted the motion
and subsequently instructed the jury regarding the different BAC tiers in the
DUI statute. Id. at 184-85. The verdict slip was styled as follows for the
second count of DUI:
2. DUI—Blood Alcohol Concentration ____ GUILTY _____ NOT GUILTY
Greater than 0.08%
If you find the Defendant guilty of this ____ From 0.08% to 0.10%
offense, you should select the highest
range of alcohol concentration that has ____ From 0.10% to 0.159%
been proven beyond a reasonable doubt
and place a check mark on the blank ____ 0.16% or above
line next to that range. All other blank
lines should remain empty.
Following reception of the evidence, the jury found Ressman not guilty
of DUI—general impairment and guilty of DUI—BAC greater than 0.08%, but
specifically found that the Commonwealth had proven beyond a reasonable
doubt that Ressman’s BAC was between 0.10% and 0.159%. Id. at 193-94.
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1 75 Pa.C.S. §§ 3802(a)(1), 3802(b), 1501(a), & 3714(a).
2 75 Pa.C.S. § 3802(a)(2). Additionally, the Commonwealth moved to amend
the information to reflect that all DUI offenses were third offenses for grading
purposes.
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Immediately following the verdict, the trial court adjudicated Ressman not
guilty of driving without a license and guilty of careless driving.
On December 6, 2019, the trial court sentenced Ressman to 90 days to
24 months of incarceration followed by two years of probation for the count
of DUI. Ressman filed a timely post-sentence motion seeking, inter alia,
judgment of acquittal or a new trial on the DUI charge. He argued that the
margin of error for the BAC results indicated that his actual BAC could have
been below the 0.10% threshold, so the evidence was insufficient to support
his conviction or, in the alternative, the verdict was against the weight of the
evidence. He also motioned for arrest of judgment or a new trial on the
careless driving charge, arguing that the evidence at trial did not support the
trial court’s verdict.
On May 26, 2020, the trial court issued an order granting Ressman’s
motion for a new trial on the DUI charge, finding that the jury’s verdict was
against the weight of the scientific evidence presented at trial. The trial court
primarily relied on Commonwealth v. Landis, 89 A.3d 694 (Pa. Super.
2014), and Commonwealth v. Sibley, 972 A.2d 1218 (Pa. Super. 2009), in
holding that Ressman had raised a meritorious weight claim based on the
margin of error for the BAC results. Additionally, the trial court granted the
motion for arrest of judgment on the careless driving charge and held that
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there was insufficient evidence set forth at trial to support that conviction.3
The Commonwealth filed a timely notice of appeal4 and it and the trial court
have complied with Pa.R.A.P. 1925.
II.
On appeal, the Commonwealth raises five issues which we have
reordered for ease of disposition:
 whether the trial court abused its discretion by finding that
the guilty verdict for the charge of DUI—BAC 0.10%-0.159% was
against the weight of the evidence;
 whether the trial court abused its discretion in setting aside
the jury’s credibility determination;
 whether instead of granting a new trial the trial court should
have adjudged Ressman guilty of the lesser-included offense of
DUI—BAC 0.08%-.010%;
 whether the trial court misapplied case law in holding that
it could not find Ressman guilty of the lesser-included offense;
and
 whether the trial court abused its discretion by granting
Ressman’s motion for arrest of judgment on the charge of careless
driving.
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3Ressman raised several other claims of error in the motion which were denied
as moot.
4 See Pa.R.A.P. 311(a)(6) (an appeal may be taken as of right from “an order
in a criminal proceeding awarding a new trial. . . where the Commonwealth
claims that the trial court committed an error of law”).
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A.
As the Commonwealth’s first two issues on appeal are related, we
address them together.5 The Commonwealth argues that the trial court
abused its discretion and misapplied prevailing case law when it determined
that the jury’s guilty verdict for DUI—BAC 0.10%-0.159% was against the
weight of the evidence because those results were outside the margin of error.
It contends that the gas chromatography testing procedure used in this case
is more reliable than the testing procedure the prosecution had relied upon in
Landis. Pointing out that its expert witness testified that he tested Ressman’s
blood sample twice, obtaining BAC results of 0.1118% and 0.1114%, the
Commonwealth argues that the jury heard all evidence related to the test
results and the possible margin of error and ultimately chose to credit
Technician Mayberry’s testimony that Ressman’s BAC exceeded 0.10%. It
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5 When evaluating a challenge to the weight of the evidence to support a
conviction, this Court does not reweigh the evidence presented at trial, but
rather evaluates the trial court’s denial of the motion for a new trial for an
abuse of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa.
2013). An abuse of discretion occurs “where the course pursued represents
not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.” Id. (citation
omitted). “One 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.-6-
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contends that the trial court abused its discretion because it disregarded that
credibility determination when ruling on the weight claim.6
In ruling on the post-sentence motion, the trial court reviewed two cases
from this Court distinguishing between sufficiency and weight claims
predicated on the margin of error for BAC test results. See Opinion on Post-
Sentence Motion, 5/26/20, at 5-9. In Commonwealth v. Sibley, 972 A.2d
1218, 1219 (Pa. Super. 2009), the defendant was convicted of DUI—BAC
greater than 0.16%. At trial, a laboratory employee testified that the
defendant’s blood test had revealed a BAC of 0.162%, and the coefficient of
variation7 for the test result indicated that his actual BAC could have fallen
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6 In reaching a verdict, the fact-finder is entitled to weigh the evidence and
determine the credibility of the witnesses, and a new trial should not be
granted merely because the trial court would have reached a different verdict.
Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015);
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “In order for a
defendant to prevail on a challenge to the weight of the evidence, the evidence
must be so tenuous, vague and uncertain that the verdict shocks the
conscience of the court.” Talbert, supra, at 546 (citation omitted). However,
in considering a motion for a new trial based on the weight of the evidence,
the trial court “is under no obligation to view the evidence in the light most
favorable to the verdict winner.” Commonwealth v. Widmer, 744 A.2d 745,
751 (Pa. 2000). “Because the trial judge has had the opportunity to hear and
see the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against the weight of
the evidence.” Talbert, supra, at 546 (citations omitted).
7“The coefficient of variation relates to the precision of the testing equipment.
The significance of the coefficient of variation is that, if the equipment were
used to take multiple tests on a single sample, those tests would likely yield
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anywhere in the range of 0.157% to 0.167%. Id. The defendant appealed,
claiming that the evidence was insufficient to support his conviction because
his actual BAC could have fallen below that 0.16% threshold.
On review, this Court held that the range of variation implicates the
weight of the evidence to support a conviction, not the sufficiency of the
evidence. Id. We concluded that “[the defendant’s] argument would demand
a test result so high and/or a coefficient of variation so low that his actual BAC
could not possibly have been beneath 0.160%. The law simply does not
require this level of certainty in criminal verdicts.” Id. at 1220. The fact-
finder was entitled to weigh the BAC test result in the context of the coefficient
of variation and conclude that the Commonwealth had proven beyond a
reasonable doubt that the defendant’s BAC exceeded 0.16%.
Sibley, however, involved a claim that the evidence was insufficient to
support the defendant’s conviction. In Commonwealth v. Landis, 89 A.3d
694 (Pa. Super. 2014), we addressed an analogous claim to the situation
herein, where the defendant challenged the weight of the evidence to support
his conviction. In Landis, the defendant was convicted of DUI—BAC greater
than 0.16% based on a BAC test result of 0.164%. Id. at 697. The evidence
at trial established that the testing method had a margin of error of ten
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somewhat differing results all within a certain range.” Commonwealth v.
Sibley, 972 A.2d 1218, 1219 (Pa. Super. 2009).
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percent, reflecting a possible range for the defendant’s BAC between 0.147%
and 0.180%. Id. at 697-98. Following his conviction, the defendant appealed
and claimed that the weight of the BAC evidence did not support his conviction
for DUI—BAC greater than 0.16%.
We agreed, finding that “the trial record did not contain a reasoned basis
for accepting the specific reading of 0.164% as either accurate or precise.
There was no support for a finding that the reading registered by the Avid
Axsym machine was any more reliable than the possible blood-alcohol levels
within the 10% margin of error.” Id. at 701. Because there was no evidence
to allow the jury to more accurately determine the defendant’s BAC within the
possible margin of error, we concluded that the verdict must have been based
on impermissible speculation as to the BAC element of the offense. Id. As a
result, we vacated the conviction and remanded for a new trial.
Here, the BAC evidence was admitted through Technician Mayberry,
who tested the samples of Ressman’s blood. Technician Mayberry described
the process of testing a blood sample for BAC with a dual-column
chromatograph. Notes of Testimony, 10/15/19, at 98-99. He explained that
he tested Ressman’s blood sample twice, obtaining BAC results of 0.1118%
and 0.1114%. Id. at 100. In his final report, he concluded that Ressman’s
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BAC was 0.111% “with an uncertainty of plus or minus 0.014.”8 Id. at 105.
On cross-examination, Technician Mayberry confirmed that the test results
reflected the BAC at the time the blood was drawn and could indicate an actual
BAC of up to 0.125% or as low as 0.097%. Id. at 112. There was no further
evidence regarding the possible range of variation for the BAC or whether any
particular value within that range was more likely to represent Ressman’s
actual BAC.
In addressing the Commonwealth’s claim of error in its opinion pursuant
to Pa.R.A.P. 1925(a), the trial court explained:
The margin of error was calculated in the same report presented
to prove [Ressman’s] BAC. It formed an intrinsic part of the
report’s claim to have measured a BAC. To accept on result of
that measurement while rejecting the companion result of the
same measurement would be arbitrary. Whatever credibility the
one has must go to the credibility of the other, so that the BAC is
accepted, then the margin of error must be accepted to the same
extent. The only way to discredit the margin of error is to discredit
the method used to measure BAC.
Furthermore, the record contains no evidence to show whether
the uncertainty tends to make the reported percentage err in the
upward or downward direction, or by what amount within the
margin of error. Without such information, a fact-finder has no
basis to accept the interpretation that [Ressman’s] actual BAC lies
closer to the reported value than to 0.08%.
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8The written report, which the Commonwealth admitted as evidence, further
noted that “measurement uncertainty is reported at a 99.73% level of
confidence for all blood alcohol analyses.” Commonwealth’s Exhibit 3,
5/29/2018 (unnecessary capitalization omitted).
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Trial Court Opinion, 7/1/20, at 4-5. The trial court’s reasoning mirrors that of
this Court in Landis, supra, and it did not abuse its discretion in granting
Ressman’s motion for a new trial.
Just like in Landis, the Commonwealth’s BAC evidence established a
possible range of variation that traversed two tiers of DUI offenses. In
Landis, we concluded that the verdict was based on impermissible speculation
regarding the defendant’s actual BAC within the range of variation, as there
was no evidence at trial to place the defendant’s actual BAC anywhere specific
within the range. Landis, supra, at 701. Thus, the weight of the evidence
did not support the conclusion that the defendant’s BAC was above or below
0.16%. Similarly, Technician Mayberry’s testimony did not establish that any
particular value within the range of variation was more likely than any other,
and no further evidence was admitted at trial to allow the jury to make a more
precise determination about Ressman’s BAC. While the jury apparently
credited Technician Mayberry’s testimony in choosing to convict, it was not an
abuse of discretion for the trial court to set aside the jury’s credibility
determination because the standard for deciding a weight claim does not
require the trial court to view the evidence in the light most favorable to the
Commonwealth.9 See Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
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9 The trial court correctly concluded that the BAC evidence was sufficient to
support the conviction for DUI—BAC 0.10%-0.159% because the jury credited
Technician Mayberry’s testimony, and it, therefore, denied Ressman’s post-
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2000). Because the trial court correctly applied the law, it did not abuse its
discretion in concluding that the guilty verdict was based on speculation
regarding Ressman’s actual BAC.
B.
The Commonwealth also contends that the trial court erred in finding
that it could not adjudge Ressman guilty of the lesser-included offense of
DUI—BAC 0.08%-0.10% but rather was constrained to the remedy of granting
a new trial. The Commonwealth argues that the uncontroverted evidence at
trial established that Ressman’s BAC was at least above 0.08%. It contends
that the jury made this factual finding when it convicted Ressman of the
second DUI count, which was styled generally on the verdict slip as “DUI—
Blood Alcohol Concentration Greater than 0.08%.” Based on the styling of the
verdict slip, the Commonwealth contends that the jury necessarily found
Ressman guilty of DUI—BAC 0.08%-0.10%. Instead of granting a new trial,
the Commonwealth contends that the trial court should have found Ressman
guilty of that lesser-included offense.
The DUI statute identifies three distinct offenses based on different tiers
of a defendant’s BAC. A general impairment BAC offense requires proof of a
BAC of “at least 0.08% but less than 0.10%.” 75 Pa.C.S. § 3802(a)(2). A
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sentence motion for arrest of judgment. See Opinion on Post-Sentence
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“high rate of alcohol” DUI offense requires proof of a BAC of “at least 0.10%
but less than 0.16%.” 75 Pa.C.S. § 3802(b). Finally, the “highest rate of
alcohol” DUI offense requires proof of a BAC that is “0.16% or higher.” 75
Pa.C.S. § 3802(c). This Court has held that lower BAC offenses are lesser-
included offenses of the higher-tier offenses, as the crimes only differ as to
the BAC the Commonwealth is required to prove beyond a reasonable doubt
at trial. Commonwealth v. Houck, 102 A.3d 443, 453 (Pa. Super. 2014).
That means the general impairment BAC offense in § 3802(a)(2) is a lesser-
included offense of the high rate of alcohol DUI offense outlined in § 3802(b).
Here, the Commonwealth initially charged Ressman with one count of
DUI—general impairment and one count of DUI—BAC 0.10%-0.159%. Prior
to trial, the Commonwealth moved to amend the information to add a count
of DUI—BAC 0.08%-0.10%. See Motion for Leave to Amend the Criminal
Information, 10/10/19. Following oral argument on the morning of trial, the
trial court granted the Commonwealth leave to amend the information. See
Order, 10/15/19. However, the Commonwealth did not file the amended
information until the day after trial, when the jury’s verdict had already been
recorded and it did not include the offense of DUI—BAC 0.08%-0.10% in the
amended information. See Verdict, 10/15/19; Amended Information,
10/16/19. Subsequently, Ressman was sentenced only for the count of DUI—
BAC 0.10%-0.159% and careless driving. See Sentencing Order, 12/6/19.
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After sentencing, Ressman filed a post-sentence motion challenging the
sufficiency and weight of the evidence to support his conviction for DUI—BAC
0.10%-0.159%, the single DUI offense for which he was convicted and
sentenced. In disposing of these claims, the trial court correctly distinguished
between the standard governing sufficiency and weight claims and the
appropriate relief for each type of claim based on Sibley, supra, and Landis,
supra. See Opinion on Post-Sentence Motion, 5/26/20, at 5-6; Widmer,
supra, at 751 (explaining that a successful sufficiency claim results in
complete discharge while a successful weight claim results in a new trial). In
Landis, this Court remanded for a new trial on the charge of DUI—BAC greater
than 0.16%, as we concluded that the verdict was against the weight of the
evidence for that charge only. Landis, supra, at 701. The trial court correctly
reached the same resolution here, where the weight of the evidence did not
support the jury’s verdict as to the charge of DUI—BAC 0.10%-0.159% only.10
No relief is due.
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10 The Commonwealth argues that because the jury checked “guilty” on the
verdict slip next to “DUI—Blood Alcohol Concentration Greater than 0.08%,”
it implicitly found that Ressman was at least guilty of DUI—BAC 0.08%-0.10%
as a lesser-included offense. However, the trial court instructed the jury
regarding this lesser-included offense and the jury ultimately chose to convict
Ressman on the higher charge. Notes of Testimony, 10/15/19, at 183-85.
Moreover, the subcommittee note to the standard jury instruction that the
verdict slip was based upon makes clear that the form was chosen merely to
allow the jury to clearly determine what BAC level had been proven beyond a
reasonable doubt. See Pennsylvania Suggested Standard Criminal Jury
Instructions § 17.3802(A)(2), note (“This instruction was drafted based on the
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C.
Finally, the Commonwealth claims that the trial court erred in granting
the post-sentence motion in arrest of judgment related to the careless driving
charge.11 However, the Commonwealth mischaracterizes the trial court’s
ruling by contending that the trial court improperly granted relief based on the
weight of the evidence, arguing that this decision was improper when the trial
court sat as fact-finder for the offense at trial. See Commonwealth’s Brief at
28. The trial court’s opinion and order disposing of the post-sentence motion
granted relief based on the sufficiency of the evidence to support the careless
driving charge, not the weight of the evidence. See Opinion on Post-Sentence
Motion, 5/26/20, at 9-10, 12. As discussed in Part II.A & II.B, supra,
challenges to the sufficiency and weight of the evidence are distinct,
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assumption that a typical jury trial on these charges will require the jury to
determine conflicting allegations about the defendant’s [BAC] at the time of
the alleged offense. Accordingly, the instruction is drafted in order to facilitate
the jury’s determination of this fact. It is assumed that the jury will be given
a special verdict form on which to indicate its findings.”). Finally, while a jury
sitting as fact-finder may elect to convict on an uncharged lesser-included
offense, the Commonwealth cites no authority for the proposition that the trial
court may reduce a jury’s verdict to a lesser-included charge when ruling on
a weight claim. Commonwealth v. Houck, 102 A.3d 443, 449-50 (Pa.
Super. 2014).
11 When reviewing a trial court’s grant of a motion in arrest of judgment, “we
must determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, is sufficient to support all elements
of the offense.” Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa. Super.
2011). We review the entire trial record and all evidence in the light most
favorable to the Commonwealth. Id. (citation omitted).
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implicating different scopes and standards of review and necessitating
different relief. See also Widmer, supra. To the extent that the
Commonwealth intended to challenge the trial court’s decision regarding the
sufficiency of the evidence, this claim is waived for failure to develop it in its
brief. See Pa.R.A.P. 2119; Commonwealth v. Miller, 212 A.3d 1114, 1131
(Pa. Super. 2019).
Moreover, even if the Commonwealth had preserved this claim we would
conclude that the trial court did not err in granting the motion in arrest of
judgment. “When ruling on a motion in arrest of judgment, a trial court is
limited to ascertaining the absence or presence of that quantum of evidence
necessary to establish the elements of the crime. At this stage in the
proceedings, the trial court is limited to rectifying trial errors, and cannot make
a redetermination of credibility and weight of the evidence. The authority of
a trial court over a nonjury verdict is no greater than the authority over a jury
verdict.” Commonwealth v. Melechio, 658 A.2d 1385, 1387 (Pa. Super.
1995) (cleaned up). As a result, the trial court was limited to examining the
trial record to determine whether the evidence was sufficient to support the
conviction for careless driving beyond a reasonable doubt. Id.A person is guilty of careless driving if he or she “drives a vehicle in
careless disregard for the safety of persons or property.” 75 Pa.C.S.
§ 3714(a). Careless disregard “implies less than willful or wanton conduct but
more than ordinary negligence or the mere absence of care under the
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circumstances.” Commonwealth v. Ford, 141 A.3d 547, 556 (Pa. Super.
2016) (citation omitted) (holding that evidence was sufficient to establish
careless driving when defendant drove at 52 MPH in a residential
neighborhood and tried to drive away from a traffic stop while an officer was
kneeling on the passenger seat with the door open); see also
Commonwealth v. Gezovich, 7 A.3d 300, 302 (Pa. Super. 2010) (holding
that “mere occurrence of an accident” was insufficient to establish careless
disregard when there was no further evidence regarding defendant’s driving).
Trooper Bower testified at trial regarding Ressman’s driving prior to the
traffic stop. Trooper Bower observed Ressman’s vehicle “swerving from the
double yellow line to the fog line, back and forth, with oncoming traffic coming
the other way.” Notes of Testimony, 10/15/19, at 40. He followed the vehicle
for three-quarters of a mile to a mile and observed the vehicle “swerving
within the lane and going from line to line.” Id. at 41. It is unclear from the
record how many times the vehicle weaved within the lane, but Trooper Bower
testified that when he observes weaving, he initiates a stop immediately to
prevent the driver from crossing into the other lane and causing an accident.
Id. at 64. He clarified that Ressman did not cross into the other lane, but his
tires did appear to touch the double yellow line. Id. at 65. After running the
license plate, he also determined that the registered owner of the vehicle had
an expired driver’s license. Id. at 40. Trooper Bower offered no further
testimony regarding Ressman’s driving, such as whether he was speeding,
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obeying traffic signals or whether he signaled when he turned into a parking
lot for the traffic stop.
The trial court correctly concluded that without more evidence that
Ressman’s vehicle was weaving within its lane was insufficient to establish the
“more than ordinary negligence or the mere absence of care under the
circumstances” required for a conviction for careless driving. Ford, supra.
Simply weaving within a lane of traffic, without entering the opposing lane,
causing damage to persons or property, or requiring other drivers to make
maneuvers to avoid incident does not rise to the level of careless driving.12
The trial court did not err in granting the motion for arrest of judgment on this
claim.13
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12We also note that the jury acquitted Ressman of the charge of DUI—general
impairment under 75 Pa.C.S. § 3802(a)(1), which differs from DUI—BAC
0.10%-0.159% in that it requires proof that the defendant was “incapable of
safely driving.”
13 We have previously concluded that “intoxication alone is insufficient to
support a reckless driving conviction.” Commonwealth v. Jeter, 937 A.2d
466, 468 (Pa. Super. 2007) (emphasis added). Careless driving is a lesser-
included offense of reckless driving and requires a mens rea of “careless
disregard,” rather than “willful or wanton disregard.” Commonwealth v.
Bullick, 830 A.2d 998, 1001-02 (Pa. Super. 2003). While the standard for
establishing careless driving is lower, when considering whether driving under
the influence is reckless per se, this Court observed “[s]ome people may
respond to alcohol by driving in a brazen and inherently reckless manner....
Other individuals may not exhibit any distinguishable difference in their driving
even though they may be legally intoxicated. Indeed, some more prescient
individuals, aware that they have ingested some alcohol, may even
compensate for their consumption by being very cautious in their driving.”
Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 n.4 (Pa. Super.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/21
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1998). Thus, “other tangible indicia of unsafe driving to a degree that creates
a substantial risk of injury which is consciously disregarded” is required to
prove recklessness while driving under the influence. Id. at 1083. Even under
the standard of careless driving, we conclude that while Ressman’s BAC
indicated that he was driving under the influence, the evidence regarding his
driving did not establish “more than ordinary negligence or the mere absence
of care under the circumstances.” Ford, supra.
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