Com. v. Warner, A. ( 2021 )

J-S20044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHLEY RAE WARNER :
:
Appellant : No. 1366 MDA 2020
Appeal from the Judgment of Sentence Entered September 9, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006518-2019
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 03, 2021
Ashley Rae Warner (“Warner”) appeals from the judgment of sentence
imposed following her conviction of driving under the influence: general
impairment (“DUI”).1 We affirm.
In its Opinion, the trial court summarized the factual history of this case
as follows:
On September 19, 2019, East Lampeter Township Officer
Samuel Sanger [(“Officer Sanger”)] was in a marked police vehicle
on patrol in the 2300 block of Lincoln Highway East, East Lampeter
Township[, Pennsylvania.] [Officer Sanger was] following
[Warner]’s car, when he observed [Warner] move her car back
into the right lane without activating her turn signal, [then] moved
back into the left lane failing to use her turn signal, [] and drift
through a crosswalk at an intersection when stopping for a red
light. [] Officer [Sanger] also noticed [Warner]’s vehicle weave
significantly across the yellow line three times and the fog line
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1 75 Pa.C.S.A. § 3802(a)(1).
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four times. Due to the above, [] Officer [Sanger] initiated a traffic
stop of [Warner].
Upon reaching [Warner]’s car[,2] which had its driver’s side
window down, [] Officer [Sanger] detect[ed] a moderate odor of
alcohol. [Officer Sanger] notic[ed that Warner] had watery,
blood[-]shot eyes and spoke with a slight slur[.] [] Officer
[Sanger] asked [Warner] to step out of the car at which time she
exited [the vehicle] in a lethargic manner. Speaking and
answering questions slowly, [] [Warner] admitted she had one
drink. She swayed when she walked, and [] Officer [Sanger]
smelled [] alcohol[] on her breath. Thereafter, [Warner]
consented to field sobriety tests. While performing the walk-and-
turn test, [Warner] could not hold her position. She could not hold
her right foot in front of her left and stood to regular [sic] standing
position. She also missed heel-to-toe several times. [Warner]
started to perform the one-leg stand[,] but [] Officer [Sanger]
stopped her due to her instability and risk of falling. [] Officer
[Sanger] concluded [that] it was not safe for [Warner] to drive
and placed her under arrest. [Warner] was then transported to
the Pennsylvania State Police Barracks[,] Troop J. Lancaster, for
a breath test. At this point, [Warner] admitted to [] Officer
[Sanger] that she had consumed a “trash can” consisting of a
variety of alcoholic beverages.[3] She claimed to have been
arguing with the passenger of her car[,] but there was no
indication of a recent physical altercation. Results of [Warner]’s
breath test were [0].82 and [0].84 blood alcohol content
[(“BAC”)].
Trial Court Opinion, 12/3/20, at 1-2 (unnumbered, citations omitted,
footnotes added).
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2 As noted infra, Warner’s paramour was a passenger in the vehicle.
3 Instantly, the “trash can” beverage contained Red Bull energy drink and
slushy, as well as various liquors including rum and gin. See N.T. (Bench
Trial), 9/9/20, at 21-22.
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On September 20, 2019, the Commonwealth charged Warner with, inter
alia, the above-mentioned DUI. Prior to trial, the Commonwealth withdrew
the other offenses, and proceeded solely on the charge of DUI.
On September 9, 2020, following a bench trial, Warner was convicted of
DUI. On the same day, the trial court sentenced Warner to six months of
probation.4 On September 18, 2020, Warner filed a timely post-sentence
Motion, in which Warner argued that the verdict was against the weight of the
evidence. On September 22, 2020, the trial court denied Warner’s Motion.
Warner filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of errors complained of on appeal.
Warner now raises the following claims for our review:
1. Did the trial court err in finding that there was sufficient
evidence to find Warner guilty of DUI …, where the evidence
established that her operation of a motor vehicle after imbibing
alcohol was justified by the defense of necessity?
2. Did the trial court err in finding Warner guilty of DUI …, because
the Commonwealth was unable to link any observations of
impaired driving to Warner and the evidence did not establish that
her mental and physical faculties were impaired such that she
could not safely operate a motor vehicle?
Brief for Appellant at 1.
In her first claim, Warner argues that the Commonwealth presented
insufficient evidence of DUI, because her defense of justification by necessity
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4 We note that the trial court states that it imposed Warner’s sentence on
September 15, 2020, but the record reveals that Warner’s sentence was
imposed and docketed on September 9, 2020.
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excuses her actions of “operating her vehicle after imbibing alcohol to a degree
that rendered her incapable of safely operating that vehicle.” Brief for
Appellant at 26. Warner asserts that she properly invoked the defense of
justification and that, accordingly, the burden was on the Commonwealth to
disprove her defense beyond a reasonable doubt. Id. at 30. Warner contends
that she was faced with a clear and imminent harm due to her violent domestic
relationship. Id. at 27-28. Warner claims that she had been physically
assaulted by her partner numerous times prior to the events of this case. Id.
at 28. On the night in question, Warner asserts that she and her paramour
had been arguing and, after one of them spilled a drink at the bar, her
paramour stormed out demandnig that Warner drive him home. Id. Warner
argues that her paramour physically attacked her in the car while she was
driving.
Additionally, Warner argues that she could “reasonably expect that her
actions would effectively prevent greater harm.” Id. at 29. Warner contends
that, as a victim of domestic violence, it was reasonable for Warner to believe
that if she drove her paramour home, then Warner could safely escape the
situation. Id.
Further, Warner contends that there was no legal alternative that would
be effective in abating the harm of her driving while intoxicated. Id. at 29-
30. Warner argues there was no safe way for her to exit the bar without her
paramour, because her paramour was in the car “causing a scene and flailing
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his arms.” Id. Additionally, Warner concedes that it was physically possible
for her to call the police, but argues that “there was no guarantee that calling
the police and waiting for them to respond would have staved off another
physical altercation or involved others who could then be harmed.” Id.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
a fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence received must be considered. Finally, the [trier] of
fact[,] while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation
omitted).
The Motor Vehicle Code states, in relevant part, that “[a]n 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.A. § 3802(a)(1).
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Regarding the defense of justification, generally, the Crimes Code
provides as follows:
(a) General rule.--Conduct which the actor believes to be
necessary to avoid a harm or evil to himself or to another is
justifiable if:
(1) the harm or evil sought to be avoided by such conduct is
greater than that sought to be prevented by the law defining
the offense charged;
(2) neither this title nor other law defining the offense provides
exceptions or defenses dealing with the specific situation
involves; and
(3) a legislative purpose to exclude the justification claimed
does not otherwise plainly appear.
(b) Choice of evils.--When the actor was reckless or negligent
in bringing about the situation requiring a choice of harms or evils
in appraising the necessity for his conduct, the justification
afforded by this section is unavailable in a prosecution for any
offense for which recklessness or negligence, as the case may be,
suffices to establish culpability.
18 Pa.C.S.A. § 503(a)-(b).
Our Supreme Court has previously stated that a necessity defense
requires
“(1) that the actor was faced with a clear and imminent harm, not
one which is debatable or speculative; (2) that the actor could
reasonably expect that the actor’s actions would be effective in
avoiding this greater harm; (3) that there is no legal alternative
which will be effective in abating the harm; and (4) that the
Legislature has not acted to preclude the defense by a clear and
deliberate choice regarding the values at issue.”
Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985). It is the
defendant’s burden to proffer sufficient evidence for each of the Capitolo
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factors. See Commonwealth v. Manera, 827 A.2d 482, 485 n.7 (Pa. Super.
2003) (stating that “the fact that a defense is theoretically available for a
given crime does not mean that the Commonwealth must disprove justification
in every case. Because justification is an affirmative defense, the defendant
has the burden of asserting an appropriate offer of proof[.]”).
Instantly, the trial court concluded that Warner had not presented
evidence of a clear and imminent harm. See Trial Court Opinion, 12/3/20, at
6 (unnumbered). In particular, the trial court determined that Warner had
only presented evidence of a single domestic violence incident from July 19,
2019, which was approximately three months prior to the instant DUI. Id.Additionally, the trial court concluded that Warner had viable legal alternatives
other than driving drunk away from the tavern, including remaining at the
bar, asking for help from someone in the bar, calling the police, or not imbibing
alcohol. Id. Additionally, the trial court observed that Warner had no
responsibility to drive her paramour home that night, and even if Warner had
such a responsibility, it would not have outweighed Warner’s duty to others
on the road. Id. Our review of the record confirms the trial court’s analysis
and determinations, and accordingly, we cannot grant Warner relief on this
claim. See id. at 6 (unnumbered); see also 18 Pa.C.S.A. § 503; Manera,
supra.In her second claim, Warner contends that the trial court’s verdict was
against the weight of the evidence. Id. at 31-33. Warner acknowledges that
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Officer Sanger observed her vehicle swerving between lanes and crossing the
yellow line, but contends that these traffic violations were a result of her
paramour’s assault and not due to intoxication. Id. at 33. Additionally,
Warner contends that, regarding her BAC level above .08, Pennsylvania is not
a zero-tolerance state and “a person can have an alcoholic beverage and get
behind the wheel.” Id. Additionally, Warner claims she had mouth piercings
which could contain “residual mouth alcohol” and elevate the BAC level. Id.
at 34. Warner argues that the field sobriety tests should not have been
afforded any weight, because she had “bariatric surgery,”5 which impaired her
ability to perform the field sobriety tests. Id. at 33-34.
Our standard of review related to a challenge to the verdict as against
the weight of the evidence is well settled.
The weight of the evidence 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 witnesses. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we
may only reverse the … verdict if it is so contrary to the evidence
as to shock one’s sense of justice.
Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999). Additionally,
where the trial court has ruled on the weight claim, an appellate court’s role
is not to consider the underlying question of whether the verdict is against the
weight of the evidence; rather, our appellate review is limited to whether the
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5 We note that bariatric surgery is more commonly referred to as gastric-
bypass surgery.
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trial court abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).
In its Opinion, the trial court addressed this claim as follows:
In the instant case, Officer [] Sanger testified that he
observed [Warner] drive in an unsafe manner, she smelled of []
alcohol [], her eyes were watery and blood shot, her speech was
slurred, she moved lethargically, and she did not pass [the] field
sobriety tests. Additionally, [Warner] admitted that she had been
drinking a multiple-shot, highly caffeinated cocktail. [] Officer
[Sanger] stated he had eighteen years of experience, extensive
training in identifying impaired drivers, and was involved in over
one thousand impaired driving cases.
Trial Court Opinion, 12/3/20, at 5 (unnumbered).
Additionally, at the close of trial, the trial court stated as follows:
While [the trial court is] sympathetic to people who are in a
domestic violence relationship, we also heard the testimony from
the Commonwealth with regard to [Warner’s] driving, the walk-
and-turn and one-leg-stand, comments that [Warner] made to the
officer admitting that she had [consumed] that concoction called
a [t]rash [c]an, … as well as the fact that the blood alcohol test,
through the intoxilyzer was [0].082, which is above the legal limit.
N.T. (Bench Trial), 9/9/20, at 78.
Our review of the record confirms that the trial court did not abuse its
discretion when it concluded that the verdict was not against the weight of the
evidence. See Champney, supra. Moreover, this Court will not reweigh
evidence. See id.; see also Commonwealth v. Koch, 39 A.3d 996, 1001
(Pa. Super. 2011) (reiterating that it is not the position of this Court to
“reweigh the evidence or substitute our own judgment for that of the fact
finder”). Discerning no abuse of discretion, this claim fails.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/03/2021
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