Com. v. Yuhouse, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID ALLEN YUHOUSE, II,
Appellant No. 1035 WDA 2013
Appeal from the Judgment of Sentence Entered June 21, 2013
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001376-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 22, 2014
Appellant, David Allen Yuhouse, II, appeals from the judgment of
sentence of 11½ -
sufficiency of the evidence introduced at his trial. After careful review, we
affirm.
Appellant proceeded to a jury trial on May 9, 2013. The facts adduced
at trial were as follows:
On March 11, 2012[,] at approximately 3:45 a.m.[,]
[Appellant] was driving his automobile in the northbound lane of
State Route 119 in Upper Tyrone Township, Fayette County,
Pennsylvania[,] when he rear-ended a white Chevrolet van.
established at trial. However, the force of the impact caused the
van to tumble numerous times that morning.
Benjamin and Donna Green owned the van[,] and[,] along
with their friend Bonnie Urbaneck[,] they were delivering Sunday
newspapers as they had many times prior. Ben was driving. At
trial, Ben recalled that his van was moving at a speed of 35
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[miles per hour] because they were passing through a
Both Ben and Donna were ejected from the van. Donna
immediately recognized her husb
burning car. He was unconscious and had suffered a broken
[Appellant] told her he was "so sorry" for crashing into their van
and that he was on his cell phone when the incident occurred.
Thereafter, all of the parties were transported to Frick Hospital.
At approximately 5:08 a.m.[,] Trooper David J. Hamer
appeared at the hospital and spoke with [Appellant]. As the two
discussed the incident, the trooper detected a strong odor of
bloodshot eyes and slurred speech. Consequently, [Appellant]
was read his O'Connell[1] warnings and then submitted to a
t was
determined to be .116%.
Trial Court Opinion (TCO), 12/9/13, at 2 3 (citations to the record
two counts of aggravated assault by vehicle while driving under the
influence, and one count each of driving under the influence, following too
closely, driving at unsafe speed, and careless driving. On June 21, 2013,
Appellant was sentenced to two concurrent terms of 11½ -
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1
See Commonwealth, Dept. of Trans., Bureau of Traffic Safety v.
where an arrestee
requests to speak to or call an attorney, or anyone else, when requested to
take a breathalyzer test, we insist that in addition to telling an arrestee that
his license will be suspended for one year if he refuses to take a breathalyzer
test, the police instruct the arrestee that such rights are inapplicable to the
breathalyzer test and that the arrestee does not have the right to consult
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incarceration. He filed a timely notice of appeal, as well as a timely concise
statement of errors complained of on appeal pursuant to Pa.R.A.P 1925(b).
Appellant now presents the following questions for our review:
1.
judgment of acquittal where the Commonwealth failed to
prove every element of the crime of driving under the
influence[,] as there was a gross lack of testimony as to the
proper chain of custody, and procedures regarding the
s?
2.
judgment of acquittal when basing that denial on unmade
results of the test performed?
A defendant may challenge the sufficiency of the evidence to sustain a
conviction of an offense charged by motion for judgment of acquittal at the
case. Pa.R.Crim.P. Rule 606.
In reviewing a refusal to arrest judgment, we must consider
whether the evidence was sufficient to uphold the verdict of the
trial court. We must accept all the evidence and all reasonable
inferences which may be drawn from that evidence upon which
the fact finder could have based its verdict. If the evidence
viewed in the light most favorable to the verdict winner is not
sufficient to establish guilt[] beyond a reasonable doubt of the
crime charged, then the motion should have been granted.
Further, our standard of review for sufficiency of the evidence
claims is well settled:
[]In reviewing the sufficiency of the evidence, we view all
the evidence admitted at trial in the light most favorable to
the Commonwealth, as verdict winner, to see whether
there is sufficient evidence to enable [the factfinder] to
find every element of the crime beyond a reasonable
doubt. This standard is equally applicable to cases where
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the evidence is circumstantial rather than direct so long as
the combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a conviction
must be based on []more than mere suspicion or
conjecture, the Commonwealth need not establish guilt to
a mathematical certainty.[]
Moreover, when reviewing the sufficiency of the evidence, this
Court may not substitute its judgment for that of the fact-finder;
if the record contains support for the convictions they may not
be disturbed.
Commonwealth v. McFadden, 850 A.2d 1290, 1292 1293 (Pa. Super.
2004) (internal citations omitted).
In the instant case, Appellant was convicted of aggravated assault by
vehicle while driving under the influence, defined as follows in 75 Pa.C.S. §
3735.1(a):
Any person who negligently causes serious bodily injury to
another person as the result of a violation of section 3802
(relating to driving under influence of alcohol or controlled
substance) and who is convicted of violating section 3802
commits a felony of the second degree when the violation is the
cause of the injury.
Appellant was also convicted of driving under influence of alcohol or
controlled substance, as defined in 75 Pa.C.S. § 3802(b):
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 at least 0.10% but less than
0.16% within two hours after the individual has driven, operated
or been in actual physical control of the movement of the
vehicle.
Appellant argues that the evidence offered at his trial was insufficient
to establish the alcohol concentration in his blood, as required to sustain his
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conviction for aggravated assault by vehicle while driving under the
influence. Specifically, Appellant claims that the Commonwealth failed to
offer sufficient evidence establishing that the sample tested to determine
. This claim is
meritless.
Trooper David Hamer testified that he watched as a technician drew
Hamer. Id. at 71. Trooper Hamer locked the package in the trunk of his
police cruiser. Id. He removed the package when he returned to the police
barracks. Id. Trooper Hamer signed the blood into the property room, and
requested that the blood be sent to a laboratory for chemical testing. Id.
The packaged blood was assigned a property record number, and placed in
Id. Subsequently, Trooper Hamer received a
report from a forensic scientist stating that she had tested the blood. Id. at
from the Greensburg Regional Crime Laboratory[,] tested the blood provided
alcohol content of that blood was .116 percent. Id. at 62 - 63.
Viewing this evidence submitted in the light most favorable to the
blood alcohol level was .116 percent. The record supports the trial cou
finding of an unbroken chain of custody while the blood was in Trooper
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12.
However, Trooper Hamer testified that the sealed blood samples remained
secured in the trunk of his cruiser until he returned to the police barracks,
where the sample was assigned an identification number and placed in the
property room. There is nothing in the record that suggests the blood was
2
custody. Appellant claims, in the second issue he raises before this Court,
contends that he merely stipulated to the results of the blood test, not that
performed. This contention is not supported by the record.
At trial, the Commonwealth produced the forensic scientist who tested
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2
To the extent that Appellant challenges the credibility of the evidence, such
sufficiency. See Commonwealth v. Wilson, 825 A.2d 710, 713 714 (Pa.
Super. 2003). Appellant has not raised a challenge to the weight of the
evidence.
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stipulate to the blood alcohol as being .116 if you want that stipulation you
th agreed to
the stipulation, and clarified, as we have noted, infra, that the testimony
the Greensburg Regional Crime Laboratory[,] tested the blood provided to
her by the Pennsy
alcohol content of that blood was .116 percent. Id. at 62 -
Id. Thus, our review
of the record shows that Appellant did not stipulate solely to the blood
alcohol content of the sample; rather, Appellant stipulated to the fact that
the blood sample in question was alleged to be his, that the blood in
question was tested at the Greensburg Regional Crime Laboratory by Lisa
Moore, and that the sample was provided to the laboratory from the State
Police.
Trooper Hamer then testified that he received a report from the
Greensburg Regional Crime Lab signed by Lisa Moore stating that she had
tested the blood sample he had placed in the property room, and she had
provided him with the results of that test. Id. at 71 72. As such, we
conviction for aggravated assault by vehicle while under the influence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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