Com. v. Dodge, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHAWN L. DODGE
Appellant : No. 1775 MDA 2017
Appeal from the Judgment of Sentence September 13, 2017
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000283-2015
BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JANUARY 07, 2019
Shawn L. Dodge appeals from the judgment of sentence entered in the
Franklin County Court of Common Pleas following her conviction of Driving
Under the Influence ("DUI") -General Impairment.' Dodge challenges both the
sufficiency and the weight of the evidence underlying her conviction. We
affirm.
On November 13, 2014, Corporal Benjamin Frantz, a Pennsylvania State
Police trooper, was patrolling Antrim Township in Franklin County,
Pennsylvania. At approximately 11:00 p.m., Corporal Franz observed a black
SUV driving erratically. Specifically, Corporal Frantz noted the vehicle
"weaving within its lane, it would cross over the north fog line onto the berm,
it would cross back over the lane, cross the double -yellow line into the
' 75 Pa.C.S.A. § 3802(a)(1).
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oncoming traffic lane several times." N.T., Bench Trial, 7/14/17, at 6-7. While
it was dark with the occasional flurry, Corporal Frantz testified that the
roadway was properly marked and painted, with very slight curves, and clear
of any snow.
Based upon this observation, Corporal Frantz activated his dashboard
camera and his overhead lights. The SUV took a "considerable amount of time
[to stop]," but eventually pulled over to the side of the road. Id., at 8. As
Corporal Frantz approached the vehicle, he noted "a strong odor of alcoholic
beverage emanating from inside the vehicle" and that the driver, later
identified as Dodge, had glassy and bloodshot eyes. See id., at 9-10. While
Dodge initially denied consuming any alcohol, she eventually admitted to
Corporal Frantz that she had a few drinks earlier in the evening. Additionally,
while Dodge's speech was overall "fair," Corporal Frantz did notice "some
slurring." Id., at 11.
Corporal Frantz instructed Dodge to exit the vehicle and perform field
sobriety tests. Dodge first performed the "walk and turn test," which left
Corporal Frantz with 6 out of 8 indicators that Dodge was incapable of safely
operating a motor vehicle. See id., at 17. Next, Dodge performed the "one -
leg stand," which provided 3 out of 4 indicators of impairment and incapability
of safety operating a motor vehicle. See id. Based upon the totality of the
circumstances, Corporal Frantz determined Dodge was incapable of safely
driving due to her consumption of alcohol and placed Dodge under arrest.
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Dodge proceeded to a bench trial on the charges arising from this
incident. The Commonwealth presented Corporal Frantz's testimony and the
dashboard video from the traffic stop. Dodge did not testify on her own behalf.
At the conclusion of trial, the court found Dodge guilty of DUI -general
impairment. The court sentenced Dodge to 5 days to 6 months' imprisonment,
50 hours of community service, and a 12 -month suspension of her driver's
license. Dodge filed a post -sentence motion challenging both the sufficiency
and weight of the evidence. This timely appeal followed the trial court's denial
of Dodge's motion.
On appeal, Dodge raises the following questions for our review:
1. Whether there was insufficient evidence to support the trial
court's finding of guilt as to DUI: General impairment, because
the Commonwealth failed to present sufficient evidence that
Dodge was incapable of safely operating an automobile
because of alcohol consumption.
2. Whether the trial court's verdict of guilt as to DUI: General
Impairment was against the weight of the evidence whether
the trooper was unable to link any observations of impaired
driving to Dodge and the Commonwealth's evidence did not
establish that Dodge's mental and physical faculties were
impaired such that she could not operate a motor vehicle.
Appellant's Brief, at 1.
Dodge first challenges the sufficiency of the evidence underlying her
DUI -General Impairment conviction. Our 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 are sufficient for the trier of fact to find that each
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element of the crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).
To support a conviction under § 3802(a)(1), the prosecution must prove
"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." Commonwealth v.
Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (citation omitted)
Dodge concedes that she was driving, operating, or in actual physical
control of the movement of a vehicle. However, she contends that the
evidence was insufficient to establish that she was incapable of safely driving
due to the consumption of alcohol.
Our Supreme Court, in Commonwealth v. Segida, 985 A.2d 871 (Pa.
2009), described the types of evidence that the Commonwealth may offer to
prove this element:
Section 3802(a)(1), like its predecessor [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.... 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
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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.
Id., at 879.
In her brief, Dodge argues that she was not driving erratically, but
simply "straddle[d] or cross[ed] a travel lane ... in a momentary and minor
manner ... when no other motorists were at risk." Appellant's Brief, at 15.
Further, Dodge argues that her slurred speech, glassy and bloodshot eyes,
and failure to perform well on the "walk and turn" and "one -leg stand" test
were not conclusive to alcohol impairment. However, despite Dodge's attempt
to portray the evidence in a light favorable to her defense, the relevant inquiry
in conducting a sufficiency analysis requires that we view the evidence in the
light most favorable to the verdict winner, which in this case is the
Commonwealth.
When viewed in the proper light, we find the evidence presented at trial
was more than sufficient to enable the factfinder to conclude that Dodge was
incapable of safely driving her vehicle due to the consumption of alcohol.
Corporal Frantz observed Dodge driving erratically and conducted a traffic
stop. During the stop, Corporal Frantz smelled the odor of alcohol in Dodge's
vehicle, noted her slurred speech and glassy eyes, and asked Dodge to step
out of the vehicle to perform field sobriety tests. Dodge exhibited 9 out of 12
signs of impairment and inability to safety operate a motor vehicle during
those field sobriety tests. As set forth in Segida, all of this evidence was
properly offered in support of the conclusion that Dodge was incapable of
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safely driving due to the consumption of alcohol. Therefore, we find that there
was sufficient evidence for the trial court to reach this conclusion, and find no
merit in Dodge's sufficiency claim.
Next, Dodge contends that her conviction should be vacated because
the trial court failed to properly weigh the evidence presented by the
Commonwealth. We do not review challenges to the weight of the evidence
de novo on appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225
(Pa. 2009). Rather, we only review the trial court's exercise of its discretionary
judgment regarding the weight of the evidence presented at trial. See id."[W]e may only reverse the lower court's verdict if it is so contrary to
the evidence as to shock one's sense of justice." Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is
said to be contrary to the evidence such that it shocks one's sense of justice
when "the figure of Justice totters on her pedestal," or when "the jury's
verdict, at the time of its rendition, causes the trial judge to lose his breath,
temporarily, and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience." Commonwealth v. Davidson, 860 A.2d
575, 581 (Pa. Super. 2004) (citations omitted).
In advancing her weight challenge, Dodge claims that the evidence
offered that she "was incapable of safe driving was based on mere subjective
factors that do not scientifically correlate to levels of impairment." Appellant's
Brief, at 22. As such, Dodge contends that the Commonwealth failed to
present any credible evidence correlating Dodge's level of her impairment to
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her inability to drive. Because she was convicted without this necessary
correlation, Dodge contends the verdict was against the weight of the
evidence.
After reviewing Dodge's claim, the trial court concluded that Dodge's
argument was "without merit." Trial Court Rule 1925(a) Opinion, 12/14/17,
at 17. In fact, the trial court concluded that Dodge's position was "quite
contrary" to the totality of the evidence as "performance on field sobriety
testing, odor of alcohol, slurred speech ... appearance including blood-
shot/glassy eyes, etc., are all relevant and probative pieces of evidence in
determining whether the defendant was incapable, at the time they were
driving, of operating a motor vehicle safely due to consumption of alcohol."
See id. As such, the trial court concluded that the verdict did not shock its
sense of justice. See id. Our review of the record does not demonstrate the
court abused its discretion in concluding that its verdict was reasonable.
Therefore, Dodge's final issue on appeal merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 1/7/2019
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