Com. v. Lee, R. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICK LEE :
:
Appellant : No. 1626 MDA 2023
Appeal from the Judgment of Sentence Entered October 19, 2023
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000201-2020
BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY LANE, J.: FILED: NOVEMBER 21, 2024
Rick Lee (“Lee”) appeals from the judgment of sentence imposed
following his bifurcated trial convictions of driving under influence of
alcohol/general impairment (“DUI”) and driving while operating privilege is
suspended by a person who refused a breath test (“DUS”).1 We affirm.
The Commonwealth charged Lee with DUI and DUS. The charges
proceeded to a bifurcated trial, where the Commonwealth first presented
evidence before a jury with respect to the DUI charge. Hemlock Township
Police Officer Henry Roote (“Officer Roote”) testified to the following: one night
in December 2019, he was on patrol when he observed “an older model ‘bluish
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1), 1543(b)(1.1)(i).
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purple’ truck” with an Oregon license plate. Trial Court Opinion, 1/16/24, at
4 (record citations omitted). “The truck was a distinctive ‘odd’ color and was
known to Officer Roote as belonging to, and ‘operated by,’” Richard Harvey —
whom the officer identified at trial as Lee. Id. Officer Roote began following
Lee because he knew him and knew his Pennsylvania driver’s license was
suspended. See id. at 5.
[Lee] attempted to navigate a left turn, [but] “overcompensated,”
and . . . had to back up and start again to make the turn[,] making
an “S” movement. Officer Roote could see [Lee’s] face in the side
view mirror and was able to identify the driver as [Lee] from prior
familiarity with [Lee. Lee’s] face was illuminated by the lights of
a nearby Exxon station. [Lee] attempted to turn right into the
Exxon, but cut over the double yellow line, then overcompensated
again, requiring [him] to cut hard to the right to turn into the
Exxon. . . .
Id. (record citations omitted).
Lee stopped his vehicle at a gas pump. Officer Roote parked behind
him, activated his lights, and effected a vehicle stop. Lee exited his vehicle
and walked five to eight feet toward Officer Roote. See N.T. Jury Trial,
9/18/23, at 42. Officer Roote described Lee as having “an unsteady gait,”
wherein “[h]e would take a step, then almost catch himself in . . . a stumbling
motion.” Id. at 41-42. Lee was also “yelling something,” and his speech was
slurred and “mumbling,” with his “words running together, pause, [and] not
the normal rhythmic tone as you speak [sic].” Id. Officer Roote testified that
six months earlier, he talked to Lee and observed him walking, and on this
evening, his speech and walk were different from the prior interaction. See
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id. at 45. Officer Roote directed Lee to return to his vehicle and called Officer
Craig Johnson for assistance.
Officer Johnson testified to the following at trial. He was certified to
administer field sobriety tests and “operate the DUI Booking Center breath
testing machine.” Id. at 70-71. He arrived on the scene to assist Officer
Roote. “Officer Johnson identified [Lee] at trial as ‘Mr. Harvey,’ the person he
encountered at the scene.” Trial Court Opinion, 1/16/24, at 7. Officer Johnson
explained to Lee he would conduct a field sobriety test, specifically the “walk
and turn test.” N.T., 9/18/23, at 73, 76. Lee “was asked if he had any medical
conditions that would affect his performance and [he] said “no.’” Trial Court
Opinion, 1/16/24, at 7-8. Officer Johnson demonstrated the test — walking
nine steps, placing one foot in front of the other with the heel touching the
other foot’s toe, turning, and walking nine steps back. See N.T., 9/18/23, at
74. During this time, the officers asked Lee to “put [his] arms down” and to
“pay attention,” while Lee stated numerous times, “Let’s just get this over
with.” Id. Officer Johnson testified this behavior indicated a “a lack of
attention.” Id. at 77. In performing the test, Lee “showed signs of
impairment by using his arms to steady his walk” and stepping with more than
six inches between his heel and the toe of the other foot. Id. at 76. Officer
Johnson then requested Lee to perform a “one-legged stand test,” but Lee
refused. Id. at 78.
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At this time, the officers took Lee into custody and transported him to
the DUI Booking Center. Officer Roote testified to the following. He requested
Lee to submit to a breath test and read aloud a “DL-26” form for consent for
the test. Id. at 48. Lee refused, stating, “I’m not doing this bull[—] test;” he
also refused to sign the line indicating that he was refusing the breath test.
See id. at 49-50. Officer Roote described Lee at this time as “upset, abrasive,
[and] somewhat angry towards the police officers.” Id. at 51.
Finally, Officer Roote testified he had been a police officer for thirteen
years and has interacted with “hundreds” of people under the influence of
alcohol. Id. at 37-38. Officer Johnson had been a police officer for seven
years, and previously was employed at the Federal Bureau of Prisons for
twenty years. See id. at 70. Officer Johnson had experience interacting with
intoxicated inmates and, as a police officer, administered more than a hundred
field sobriety tests, although “[n]ot all of those tests have showed
impairment.” Id. at 71, 72. Both officers opined that, based on their training
and experience, Lee was under the influence of alcohol and incapable of safe
driving. See id. at 52, 79-80.
Lee did not testify in his own defense, but presented an expert witness,
Lawrence Guzzardi, M.D., in the fields of emergency medicine, emergency
neurological care, and medical toxicology. Dr. Guzzardi testified that he
reviewed Lee’s prior medical records — which Lee also submitted into evidence
— interviewed Lee over the telephone, and administered neurological tests
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over a video call. See id. at 129. Dr. Guzzardi testified that Lee “had brain
surgery in 2005[, which] created a neurological impairment that caused a
speech impediment and difficulty walking.” Trial Court Opinion, 1/16/24, at 6
n.2. Dr. Guzzardi also opined, to a “[h]igh degree of medical certainty,” that
Lee would have had “a very high probability of not being able to successfully
complete the” “walk and turn test.” N.T., 9/18/23, at 152.
The jury found Lee guilty of DUI, and made a special finding that he
refused to give a breath sample for testing.2
Meanwhile, when the jury retired to deliberate the DUI charge, the
parties presented evidence to the trial court, sitting as finder of fact, on the
summary DUS charge. Officer Roote testified that when he conducted the
vehicle stop, Lee provided an Oregon driver’s license, bearing the name Rick
Lee. N.T., 9/18/23, at 224. Defense counsel acknowledged that Lee was
previously known as Richard Lee Harvey, and presented a 2010 Florida
certified name change form. See N.T., 9/18/23, at 225; see also Verdict Slip
as to Summary Offense and Opinion (“DUS Opinion”), 9/22/23, at 2.
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2 The general impairment subsection of the DUI statute prohibits an individual
from driving a vehicle with a blood alcohol concentration of 0.08% through
0.10%. See Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super.
2017). However, when an individual refuses a blood or breath alcohol test
and is later convicted of DUI-general impairment, his conviction is subject to
higher grading and he is subject to greater punishment. See 75 Pa.C.S.A.
§§ 3803, 3804(c).
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The Commonwealth presented Lee’s certified driving record, which the
trial court summarized as showing the following: 3 Lee’s Pennsylvania driver’s
license has been suspended since August 2003. See Trial Court Opinion,
1/16/24, at 10. Lee has incurred seven DUI convictions, as well as other
violations, and his driver’s license has been continuously suspended without
restoration. See id.; see also DUS Opinion, 9/22/23, at 2. Pertinently, the
certified driving record included entries that official notices of the suspensions
were mailed to Lee. See id.
Defense counsel denied that Lee received notices of the license
suspensions, arguing that the address attributed to him on the Pennsylvania
certified driving record did not match the Oregon address on his Oregon
driver’s license. N.T., 9/18/23, at 227. Defense counsel further averred that
due to Lee’s possession of a “valid” Oregon license, “he could not have [had]
actual notice that he was suspended from driving privileges.” Id. The trial
court asked counsel who bore the burden of notifying the Pennsylvania
Department of Transportation (“PennDOT”) of Lee’s address change, but
defense counsel replied she did not know. See id. at 229. Four days later,
on September 22, 2023, the trial court found Lee guilty of DUS.
____________________________________________
3The trial exhibits were not included in the certified record transmitted on
appeal. Nevertheless, Lee has not disputed the veracity of the trial court’s
description of his certified driving record.
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On October 19, 2023, the trial court imposed sentence as follows: (1)
for DUI, a standard sentencing-guideline range term of fifteen to thirty
months’ imprisonment in state prison; and (2) for DUS, a $1,000 fine. Lee
filed a timely post-sentence motion, which challenged the sufficiency and
weight of the evidence. The trial court denied relief, and Lee filed a timely n
notice of appeal. Both Lee and the trial court have complied with Pa.R.A.P.
1925.
Lee presents the following issues for our review:
1. Whether the evidence was insufficient to convict [Lee] of
[DUI]?
2. Whether the [trial] court erred in denying [Lee’s] post-
sentence motion that the verdict was against the weight of
evidence when considering all testimony?
3. Whether the trial court erred in finding that [Lee] was driving
under a suspended driver’s license when he had a valid Oregon
license in the name of Rick Lee and there was no testimony as
to how officers concluded [Lee’s] name was Richard Harvey and
he had a suspended Pennsylvania driver’s license[?]
Lee’s Brief at 3 (unnecessary capitalization omitted).
In his first issue, Lee avers the evidence was insufficient to support his
conviction of DUI. We consider the applicable standard of review:
“Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary.” “In assessing [a] sufficiency challenge, we
must determine whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, together with
all reasonable inferences therefrom, the trier of fact could have
found that the Commonwealth proved [each] element of the crime
beyond a reasonable doubt.” “The evidence need not preclude
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every possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented.”
Giron, 155 A.3d at 638 (citations omitted).
The DUI/general impairment statute, under which Lee was convicted,
provides:
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 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). Under this subsection, “[t]here is no requirement
that videotape or physical evidence be presented at trial. Instead, police
officers’ testimony is sufficient to prove the elements of DUI-general
impairment.” Giron, 155 A.3d at 638. Additionally, we note that when a
defendant is charged with any DUI violation under section 3802,
the fact that the defendant refused to submit to chemical
testing . . . may be introduced in evidence along with other
testimony concerning the circumstances of the refusal. No
presumptions shall arise from this evidence but it may be
considered along with other factors concerning the charge.
75 Pa.C.S.A. § 1547(e).
On appeal, Lee maintains that Officer Roote “testified that he did not
smell alcohol on [Lee’s] breath, [nor] see red eyes, . . . the vehicle swerving[
or] braking unusually, . . . stopping . . . in the middle of the lane, . . . violating
other lanes, or failing to use headlights.” Lee’s Brief at 11. Lee further
contends there was no evidence that he admitted to consuming alcohol. Lee
concludes the totality of the evidence was insufficient to show beyond a
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reasonable doubt that he consumed alcohol, which rendered him incapable of
safely operating a motor vehicle.4
We consider the trial court’s analysis:
The evidence . . . was substantial and sufficient to create a
question of fact for the jury. [Lee] was driving erratically[,]
staggering[,] and slurring his speech. The officers both opined
that, based upon their training and experience, [Lee] was unable
to safely drive due to his consumption of alcohol. The lack of an
odor of alcohol does not change these facts, and it was left to the
defense to argue that fact to the jury if [it] wanted to. The
evidence was sufficient to create a question of fact for the jury
and the jury found against [Lee].
Trial Court Opinion, 1/16/24, at 14.
After review of the record, and viewing the evidence in the light most
favorable to the Commonwealth, we similarly conclude the jury could have
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4 Lee also acknowledges Officer Roote’s testimony that he had “an unsteady
gait and a stumbling motion,” but cites his expert witness’ testimony that a
prior brain surgery caused him neurological impairment. Lee’s Brief at 11-12.
This argument goes to the weight, not the sufficiency, of the evidence. We
remind counsel:
[A] sufficiency of the evidence review does not include an
assessment of credibility of testimony offered by the
Commonwealth. Instead, such arguments are more properly
characterized as challenges to weight of evidence. [See]
Commonwealth v. W.H.M., Jr., . . . 932 A.2d 155, 160 (Pa.
Super. 2007) (explaining a claim that the jury erred in crediting a
victim’s version of events over that of the defendant goes to the
weight, not to the sufficiency of the evidence).
Commonwealth v. Juray, 275 A.3d 1037, 1043 (Pa. Super. 2022) (some
citations omitted). See also id. at 1046 (explaining that a claim that the
verdict is contrary to the weight of the evidence concedes there is sufficient
evidence to sustain the verdict).
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found the Commonwealth proved each element of DUI beyond a reasonable
doubt. See 75 Pa.C.S.A. § 3802(a)(1); see also Giron, 155 A.3d at 638. On
appeal, Lee wholly ignores the uncontradicted testimony by the police officers,
that: (1) Officer Roote observed Lee driving erratically, by
“overcompensating” when turning and crossing over the double yellow line in
making another turn; (2) in an interaction with Officer Roote six months
earlier, Lee did not have the “slurred speech” and “unsteady gait” that were
exhibited during the traffic stop; and (3) Lee showed signs of inattentiveness
when Officer Johnson attempted to demonstrate the field sobriety test; and
(4) Lee refused to consent to a breath test. See Trial Court Opinion, 1/16/24,
at 5-6; see also 75 Pa.C.S.A. § 1547(e) (providing that evidence of a
defendant’s refusal to submit to a chemical test may be considered).
Furthermore, despite Lee’s explanations for his deficient performance of the
field sobriety test, the jury was free to consider Officer Johnson’s testimony,
that he showed signs of impairment. The officers’ testimony alone was
sufficient to support a conviction of DUI. See Giron, 155 A.3d at 638. The
jury was free to believe all, part, or none of this evidence, and we do not
disturb its finding of guilt. See id.In his second issue, Lee avers the trial court erred in denying his post-
sentence motion claim that the DUI verdict was against the weight of the
evidence. This Court has explained:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
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is against the weight of the evidence. 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. One of the least assailable reasons for granting or
denying a new trial is the [trial] 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.
Juray, 275 A.3d at 1047 (citation omitted).
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the weight
of the evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. A trial judge must do more than
reassess the credibility of the witnesses and allege that he would
not have assented to the verdict if he were a juror. Trial judges,
in reviewing a claim that the verdict is against the weight of the
evidence do not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
Id. at 1046-47 (citation omitted).
In challenging the weight of the evidence for his DUI conviction, Lee
avers:
Officer Roote did not . . . follow [him] because of erratic driving,
speeding, crossing lanes, vehicle equipment violations[, but
instead] because of the odd color [of his truck] and he fact that
the officer believed [him] to be driving, and knew from prior
contact that [he] had a suspended license.
Lee’s Brief at 13. Furthermore, Lee cites Dr. Guzzardi’s testimony that he had
brain surgery in 2005, which “created a neurological impairment that caused
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difficulty walking and a speech impediment,” and “would make it impossible
for [Lee] to complete any standardized field sobriety testing.” Id. at 11-12.
After review of the record, we determine that no relief is due. First, we
reject Lee’s argument concerning Officer’s Roote reason for following him —
that the officer recognized the vehicle and the driver as a person whose
driver’s license was suspended. The Commonwealth did not claim this
evidence established the elements of DUI. Relatedly, Lee ignores that,
regardless of the initial reason for following him, Officer Roote immediately
observed him driving erratically.
Second, we reject Lee’s implicit argument that, with respect to his
performance of the field sobriety test, the jury should have credited Dr.
Guzzardi’s testimony over that of the police officers. The trial court aptly
observed that the jury was free to weigh any competing testimony and to find
Dr. Guzzardi not credible. See Giron, 155 A.3d at 638 (providing that the
fact-finder is free to believe all, part, or none of the evidence); see also Trial
Court Opinion, 1/16/24, at 6 n.2. Additionally, the jury was free to consider
Officer Roote’s uncontradicted testimony that six months earlier, Lee did not
exhibit slurred speech or unsteadiness in walking. See id. We reiterate that
on appeal, our task is not to review the underlying question of whether the
verdict is against the weight of the evidence, but instead to review the
discretion of the trial court. See Juray, 275 A.3d at 1047. We conclude the
trial court properly denied relief on Lee’s claim.
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In his final issue, Lee asserts the trial court erred in finding he was
driving under a suspended driver’s license. We address his multiple, brief
arguments seriatim.
First, Lee maintains he had a valid Oregon driver’s license. The DUS
statute provides, in pertinent part:
Except as provided in subsection (b), any person who drives a
motor vehicle on any highway or trafficway of this Commonwealth
after the commencement of a suspension, revocation or
cancellation of the operating privilege and before the operating
privilege has been restored is guilty of a summary offense[.]
75 Pa.C.S.A. § 1543(a) (emphasis added).
The trial court found that even if Lee possessed a valid Oregon driver’s
license, it would not subvert the prohibition on him from driving in
Pennsylvania. The trial court also pointed out the certified driving record
showed that Lee surrendered his driver’s license in August 2003, when his
license was suspended, and there has been no restoration of his license. See
DUS Opinion, 9/22/23, at 2.
After review, we similarly conclude that no relief is due on Lee’s
sufficiency challenge. Subsection 1543(a) clearly provides that once an
individual’s Pennsylvania license has been suspended,” he may not drive on
any trafficway in Pennsylvania until his Pennsylvania operating privilege “has
been restored.” See 75 Pa.C.S.A. § 1543(a). Lee presented no evidence at
trial to dispute the Commonwealth’s evidence that he surrendered his
Pennsylvania license and has not had it restored.
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Second, Lee cites Officer Roote’s trial testimony that he believed the
driver of the vehicle was Richard Harvey. However, he avers was no
“testimony as to how [the officer] confirmed the identity of the driver and the
driving record.” Lee’s Brief at 14-15.
The trial court opined: “This assignment of error is largely unintelligible
to the undersigned. There was no prejudice. Defense counsel stipulated that
“Richard Lee Harvey” and “Rick Lee” are the same person. . . . This is a
frivolous issue.” Trial Court Opinion, 1/16/24, at 12 (citing N.T., 9/18/23, at
226).
On appeal, Lee does not address, let alone refute, the trial court’s
analysis. The testimony that he cites — that Officer Roote believed the driver
of the vehicle was Richard Harvey — was presented in the jury trial on the
DUI charge. Lee’s DUS charge, however, was tried separately and, as the trial
court aptly point outs, at that trial his counsel not only acknowledged that Lee
was previously known as Richard Harvey, but also presented a Florida certified
name change in support. No relief is due on this claim.
Finally, Lee asserts “[t]he Commonwealth failed to show that Richard
Harvey received notice from PennDot of his DUI suspension.” Lee’s Brief at
16.
We reiterate that the trial court found, according to the certified driving
record, that notice of each license suspension was mailed to Lee. To the
extent that PennDOT had an incorrect address for Lee, the trial court found
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he had “a hand in perpetuating [any] error,” as he should have informed
PennDOT of any address change. DUS Opinion, 9/22/23, at 2. Furthermore,
the trial court found that Lee’s insistence that he did not receive notice, despite
seven “lifetime” DUI convictions, was incredible. Id.
After review of the record, we conclude that no relief is due on Lee’s
claim that he did not receive appropriate notice. The trial court, sitting as
finder of fact, was free to believe all, part, or none of the evidence, and we do
not disturb its findings of fact. See Juray, 275 A.3d at 1047; see also Giron,
155 A.3d at 638.
As none of Lee’s issues merit any relief, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/21/2024
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