Com. v. Shrecengost, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
DENNIS WARREN SHRECENGOST,
Appellant No. 828 WDA 2018
Appeal from the Judgment of Sentence Entered May 3, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004967-2017
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 18, 2019
Appellant, Dennis Warren Shrecengost, appeals from the judgment of
sentence of 15-30 days’ incarceration and six months’ probation, imposed
after he was convicted of driving under the influence of alcohol or controlled
substance (DUI)–high rate of alcohol, 75 Pa.C.S. § 3802(b), and DUI-general
impairment, 75 Pa.C.S. § 3802(a)(1). We affirm.
The trial court summarized the factual background of this case as
follows:
The evidence presented at trial established that on … February 11,
2017, Corporal Michael Markey and Trooper [Thomas] Lizik of the
Pennsylvania State Police were conducting a traffic stop on State
Route 28. After taking an individual into custody on that stop,
they were driving [n]orth on [Route] 28 to return to the barracks
when they observed several individuals in dark clothing running
across the roadway. Corporal Markey was in the passenger seat
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* Retired Senior Judge assigned to the Superior Court.
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and used the [Public Address (PA) system] to order the individuals
to be seated on the guide rail. [Corporal] Markey noticed a vehicle
in the berm of the [s]outhbound lanes, [and] the vehicle was
facing [n]orth. He approached the four individuals[,] and
[Appellant], who appeared to be under the influence of alcohol,
admitted that he was the owner, and driver, of the vehicle parked
on the berm on the [s]outhbound lanes. Because [Corporal
Markey] and Trooper Lizik were responsible [for] transporting a
prisoner, [h]e called for another trooper to be dispatched to
continue the investigation. While waiting for additional troopers,
[Appellant] told Trooper Lizik that he was driving southbound, that
he had just run out of gas[,] and decided to turn the car around
on Route 28 and drive north in the southbound lane to the nearest
exit ramp. He then intended to drive down that ramp in the wrong
direction in order to get gas at the gas station. After [Corporal]
Markey and [Trooper] Lizik asked [Appellant] about alcohol
consumption and the signs of impairment they observed, he told
them he was not the driver of the vehicle. Trooper [Brittany]
Hildebrand arrived on the scene and [Appellant] was transported
for chemical testing. [Appellant’s] [blood alcohol content (BAC)]
was .141%.2
2 [Appellant] stipulated to the BAC results at 17 LAB 1470.
Trial Court Opinion (TCO), 12/3/2018, at 2-3 (internal citations and footnote
omitted).
Following a non-jury trial on February 16, 2018, Appellant was convicted
of the above-stated offenses. On April 5, 2018, he filed a motion for judgment
of acquittal, which was subsequently denied. The trial court sentenced
Appellant on May 3, 2018, and he filed a timely notice of appeal on June 4,
2018.1 The trial court instructed Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and he timely complied.
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1The thirtieth day of the appeal period fell on Saturday, June 2, 2018. See
Pa.R.Crim.P. 720(A)(3) (“If the defendant does not file a timely post-sentence
motion, the defendant’s notice of appeal shall be filed within 30 days of
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Presently, Appellant raises the following issues for our review:
I. Whether [Appellant’s] conviction for DUI[-g]eneral
[i]mpairment must be reversed, and his judgment of
sentence in this regard must be vacated, when the
Commonwealth failed to prove, beyond a reasonable doubt,
that [Appellant] operated a vehicle at a time he was
rendered incapable of safe driving?
II. Whether [Appellant’s] conviction for DUI[-h]igh [r]ate of
[a]lcohol must be reversed, and his judgment of sentence
in this regard must be vacated, when the Commonwealth
failed to prove, beyond a reasonable doubt, that [Appellant]
operated a vehicle less than two hours before his BAC was
at least 0.10% but less than 0.16%?
Appellant’s Brief at 4 (emphasis omitted).
In his first issue, Appellant argues that the evidence was insufficient to
sustain his conviction for DUI–general impairment because the
Commonwealth “failed to prove, beyond a reasonable doubt, that [he]
operated his car at a time he was rendered incapable of safe driving.” Id. at
14 (emphasis omitted). He maintains that “the Commonwealth must be able
to sufficiently relate [Appellant’s] impairment to the actual time of driving or
operation[,]” and claims that “the Commonwealth presented no evidence as
to when in time [Appellant] last drove the vehicle.” Id. Specifically, Appellant
asserts that, “[r]educed to its essence, the Commonwealth argued, and the
trial court sitting as the factfinder found, that a vehicle would not have been
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imposition of sentence….”); see also 1 Pa.C.S. § 1908 (“Whenever the last
day of any such period shall fall on Saturday or Sunday, or on any day made
a legal holiday by the laws of this Commonwealth or of the United States, such
day shall be omitted from the computation.”). Thus, Appellant had until
Monday, June 4, 2018, to file a timely notice of appeal.
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sitting on a highway for very long. However, none of the officers observed
the vehicle being driven, nor did they observe [Appellant] behind the driver’s
wheel.” Id. Further, he contends that “none of the officers even approached
[Appellant’s] vehicle in order to conduct an investigation. As such, the
Commonwealth presented no testimony that the hood of [Appellant’s] vehicle
was warm to the touch, a fact that would have created a permissible inference
of recency.” Id. at 14-15. As a result, he says that “there simply was no
basis from which to conclude that [Appellant] had been driving or operating
his vehicle shortly before the police arrived on the scene.” Id. at 15.
We apply the following standard of review to such claims:
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant’s guilt to a mathematical certainty. 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. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citation
omitted).
The relevant statutory provision sets forth 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
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control of the movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1). This Court
has previously explained:
“[S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense,
requiring that the Commonwealth prove the following elements:
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. Segida [(“Segida II”)], … 985
A.2d 871, 879 (Pa. 2009).[2] With respect to the type, quantum,
and quality of evidence required to prove a general impairment
violation under Section 3802(a)(1), the Pennsylvania Supreme
Court in Segida [II] continued:
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 [S]ection 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. Blood alcohol level may be
added to this list, although it is not necessary and the two
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2 Segida II vacated in part this Court’s decision in Commonwealth v.
Segida, 912 A.2d 841 (Pa. Super. 2006) (“Segida I”). Specifically, this Court
had deemed the evidence insufficient to sustain the defendant’s convictions
under 75 Pa.C.S. §§ 3802(a)(1) and 3802(c) (DUI–highest rate of alcohol).
Our Supreme Court subsequently granted the Commonwealth’s petition for
allowance of appeal, and concluded that the Commonwealth’s evidence was
sufficient to sustain the defendant’s conviction under Section 3802(a)(1). It
did not address the sufficiency of the evidence with respect to Section 3802(c)
because the Commonwealth did not challenge it on appeal, as it conceded that
it failed to establish the time the defendant’s blood was drawn for testing and
“therefore could not prove that [the defendant’s] blood alcohol level was
elevated within two hours after he had driven, as required under Section
3802(c).” Segida II, 985 A.2d at 874 n.3.
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hour time limit for measuring blood alcohol level does not
apply. Blood alcohol level is admissible in a [S]ection
380[2](a)(1) case only insofar as it is relevant to and
probative of the accused’s ability to drive safely at the time
he or she was driving. 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 of
evidence that the Commonwealth proffers to support its
case, the focus of [S]ection 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.
Teems, 74 A.3d at 145 (some brackets added).
We reject Appellant’s argument that the Commonwealth did not
“sufficiently relate [his] impairment to the actual time of driving and
operation.” Appellant’s Brief at 14. Trooper Lizik testified that he saw “a black
Mercedes sedan parked on the western shoulder of State Route 28
southbound, facing northbound.” N.T. Trial, 2/16/2018, at 27; see also id.
at 7. Appellant identified himself as the owner and the driver of that vehicle.
Id. at 27. His eyes were “glassy and bloodshot. His speech was slurred. And
the odor of alcoholic beverage was emanating from his breath and his person.”
Id. at 28; see also id. at 42. Corporal Markey also described Appellant as
acting “goofy” and “[s]ort of carefree. … Like someone that … had too much
to drink.” Id. at 11-12. Appellant initially explained that his vehicle was
facing the wrong direction because “it just ran out of gas and they were
attempting to return to the nearest exit which would be reversing course and
driving northbound to exit the wrong way at Exit 14, Tarentum.” Id. at 28.
We point out that Route 28 “is a divided highway.” Id. at 13. Consequently,
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we consider Appellant’s extremely dangerous attempt to turn around on a
divided highway and drive the wrong way down an exit ramp to procure gas
as proof that he drove when he was incapable of safely doing so. See Segida
II, 985 A.2d at 880 (observing that “the accident itself constitutes evidence
that [the defendant] drove when he was incapable of doing so safely”); N.T.
at 56 (The court: “This is what tells me that someone was intoxicated at the
time. Who in God’s name would think it is a smart idea to turn around on
Route 28 … and try to get your car in the opposite direction so you can go the
wrong way down the ramp to get gas…[?] When you talk about how
dangerous that is. It is unbelievable to me.”).
In addition, the police officers represented that they had not received
any reports of vehicles or motorists in need of assistance in that area, and
“[w]hen [they] observed the four individuals[’] running across [Route 28]
from west to east, that was the first time that [they] were made aware there
was a vehicle in that position.” Id. at 31. Trooper Lizik testified that “there’s
always traffic … on Route 28[,]” and that “[u]sually through the night[,] at
least 1 or 2 [cars go by in] a minute.” Id. at 35. Corporal Markey also stated
that they “encountered [the group] in a very busy interchange.” Id. at 15.
Trooper Lizik conveyed that the police “weren’t made aware from the radio
dispatch that anybody was driving the wrong way on [Route] 28. We typically
receive those immediately.” Id. at 38. He additionally noted that the group
was running from the car as if they were trying to leave the scene
immediately. Id. Based on the foregoing, the circumstantial evidence
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supports that Appellant had operated the vehicle shortly before the police
arrived. See Segida II, 985 A.2d at 880 (finding that the circumstantial
evidence was sufficient to establish that the defendant drove while he was
incapable of safe driving where, inter alia, a police officer “opined that it was
doubtful that the accident had occurred two or three hours or even ten minutes
prior to his arrival on the scene due to traffic on the road”) (citation and
internal quotation marks omitted); see also Teems, 74 A.3d at 148 (“[I]t
would be quite doubtful that a car clearly damaged from a recent accident sat
in a lane of travel on Interstate 81 for very long before travelers … would have
called 911 to report the dangerous situation. The area in question was not a
remote, secondary or tertiary roadway in a rural setting….”). Accordingly, we
conclude that the Commonwealth proved that Appellant operated his car at a
time he was rendered incapable of safe driving.
In his second issue, Appellant argues that the evidence was insufficient
to sustain his conviction for DUI–high rate of alcohol because “the
Commonwealth failed to prove, beyond a reasonable doubt, that [Appellant]
operated his car less than two hours before his BAC was at least .10% but
less than .16%.” Appellant’s Brief at 28 (emphasis omitted). He asserts that
“[t]he record shows that the officers encountered [Appellant] at 2:45 A.M.,
that [he] underwent chemical testing at 3:33 A.M., and that [his] BAC was
0.141%. However, the Commonwealth presented no evidence to prove that
[Appellant] had operated his vehicle with[in] two hours of the blood draw.”
Id. Further, he says that “the Commonwealth failed to preclude the possibility
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that [Appellant] drank alcohol only after his vehicle became disabled on the
side of the highway.” Id. at 29.
No relief is due. The pertinent statute provides 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 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.” 75 Pa.C.S. § 3802(b).
In this case, viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, we deem the circumstantial evidence
sufficient to prove that Appellant’s blood was drawn within two hours of his
driving. See Teems, 74 A.3d at 144-45. We have already determined that
the evidence supports that Appellant operated the vehicle shortly before the
police arrived. See supra, at 6-8. Further, the police’s quick arrival would
leave minimal time, if any, for Appellant to consume alcohol after his car
became disabled. Both Corporal Markey and Trooper Lizik testified that,
during their time on the scene, they did not observe Appellant’s consuming
any alcohol or any other substances. N.T. at 12, 31. While they did not
approach or search Appellant’s vehicle, they stated that they did not see any
alcoholic beverages or empty bottles or cans in the area where they
encountered Appellant. Id. at 12, 31-32, 35. Corporal Markey also stated
that, though there is a gas station and restaurants in the area, they are located
off the exits and not on Route 28. Id. at 19; see also id. at 26 (describing
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Route 28 as a “limited access highway” with no pedestrians). Finally, we
reiterate that the perilous and absurd act of driving the wrong way on a
highway corroborates that Appellant did not consume alcohol only after his
vehicle became disabled. See Appellant’s Brief at 29. Based on the foregoing,
we determine that the circumstantial evidence supports Appellant’s conviction
for DUI-high rate of alcohol. See Commonwealth v. Rakowski, 987 A.2d
1215, 1219 (Pa. Super. 2010) (deeming the evidence sufficient to sustain the
verdict for DUI–highest rate of alcohol where the jury credited a witness’s
testimony that there was “no consumption of any beverages by [the a]ppellant
prior to the arrival of the police, which … undermines [the a]ppellant’s position
that the Commonwealth presented no evidence to refute the ‘possibility’ that
[the a]ppellant ingested alcohol after the accident”); cf. Segida I, 912 A.2d
at 849 (considering the evidence insufficient to sustain the appellant’s
conviction for DUI-highest rate of alcohol where, inter alia, the police officer
“did not testify as to whether there were signs of imbibing alcohol in the car
or nearby, or whether there were drinking establishments nearby which would
have provided [the defendant] an opportunity to drink after he stopped
driving. This fact provides greater uncertainty to the premise that [the
defendant’s] incapacity during the encounter with [the police officer] was
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representative of his incapacity when he was driving…”).3 Accordingly, we
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2019
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3 This author dissented in Rakowski, recognizing that “the Commonwealth
failed to preclude the possibility that [the a]ppellant consumed alcohol after
driving.” Rakowski, 987 A.2d at 1223 (Bender, J., dissenting). In that case,
however, there was an established window of time where the appellant had
been left alone at the scene in his disabled vehicle, and the appellant claimed
at trial that he drank alcohol during that time. See id. Moreover, in contrast
to Appellant’s driving the wrong way on a highway, the accidents themselves
in Rakowski and Segida I ostensibly could have occurred for reasons
unrelated to drunk driving, as they were not as blatantly irresponsible and
outrageous as Appellant’s endeavor in the case sub judice. See Rakowski,
987 A.2d at 1217 (explaining that the appellant’s vehicle and another car had
hit debris and were disabled on the side of an interstate when a trooper
encountered the appellant sleeping in his vehicle); Segida I, 912 A.2d at 842(stating that the defendant’s vehicle had “rotated 180 degrees and come to
rest into some brush[,]” and the defendant “indicated to [the officer] that he
had been driving the vehicle westbound … when he lost control of the vehicle
while arguing with his brother”) (internal quotation marks omitted).
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