Com. v. Miklosko, M.

J-A24019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL A. MIKLOSKO, JR.
Appellant No. 1816 WDA 2016
Appeal from the Judgment of Sentence Dated October 27, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015671-2015
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 17, 2017
Appellant, Michael A. Miklosko, appeals from the judgment of sentence
imposed after the trial court convicted him of driving under the influence of
alcohol (DUI) – general impairment, 75 Pa.C.S. § 3802(a)(1). We affirm.
The trial court recited the facts as follows:
At approximately 12:50 A.M. on July 4, 2015, Ross
Township Police Officer Balazs Devenyi was observing traffic
from a parking lot on McKnight Road in his marked police
vehicle. Officer Devenyi observed Appellant make an illegal U-
turn on McKnight Road at Nelson Run Road. Officer Devenyi
pulled out of the parking lot onto McKnight Road and followed
Appellant. Officer Devenyi ran Appellant’s registration, and while
following Appellant observed that he twice swerved over the
solid white line separating McKnight Road from the 279 South
on-ramp. At that point, Officer Devenyi activated his lights and
sirens and attempted to conduct a traffic stop of Appellant’s
vehicle. Appellant drove another 300 feet before pulling over in
response to the police officer’s action.
Officer Devenyi walked over to the driver’s side window
and spoke with Appellant. Officer Devenyi immediately smelled
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a moderate odor of alcoholic beverage on Appellant’s breath.
Appellant’s eyes were glassy, watery, and bloodshot. Appellant
provided his driver’s license upon request, and Officer Devenyi
returned to his vehicle to run Appellant’s license. Officer
Devenyi learned that Appellant’s driver’s license was suspended.
When Officer Devenyi returned to Appellant’s vehicle, he
noticed that the vehicle was still in drive, and he requested that
Appellant shut the vehicle off and hand him the keys. Additional
officers arrived on [the] scene to serve as backup, and Officer
Devenyi asked Appellant to step out of the vehicle to conduct
field sobriety tests; Appellant complied. Officer Devenyi
administered several field sobriety tests, including walk and turn,
one leg stand, and modified Romberg balance tests. Appellant
swayed throughout the tests and had difficulty following
instructions. Appellant failed the walk and turn test and the one
leg stand test. At that point, Officer Devenyi asked Appellant to
submit to a preliminary breath test, and Appellant complied.
Appellant admitted that he was drinking earlier in the evening.
Based on Appellant’s performance in the field sobriety
tests, the operation of his vehicle, his admission to the
consumption of alcohol, and his overall appearance, Officer
Devenyi was of the opinion that Appellant was under the
influence of alcohol or drugs to the degree that he was unable to
safely operate a motor vehicle. Appellant was arrested and
charged [with DUI].
Trial Court Opinion, 2/21/17, at 4-5 (citations to notes of testimony and
footnote omitted).
Appellant appeared for a non-jury trial on September 29 and
October 20, 2016. On October 27, 2016, the trial court rendered its guilty
verdict and sentenced Appellant to six months of probation for DUI.1
Appellant filed this timely appeal. He presents a single issue for our review:
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1 The trial court also found Appellant guilty of the summary offenses of
driving while his operating privilege was suspended and making an unsafe
U-turn, 75 Pa.C.S. §§ 1543 and 3332, but did not impose any further
penalty.
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Did the trial court err in finding [Appellant] guilty of violating 75
Pa.C.S. § 3802(a)(1) when the evidence was insufficient as a
matter of law to establish, beyond a reasonable doubt, that
[Appellant] was impaired by alcohol to a degree that rendered
him incapable of safe driving?
Appellant’s Brief at 6.
An en banc panel of this Court recently explained our role when
reviewing a DUI conviction under Section 3802(a)(1):
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 the
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 actually
received must be considered. Finally, the finder 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.
Section 3802(a)(1) of the Vehicle Code 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) (emphasis added). In order to prove a
violation of this section, the Commonwealth must show: (1) that
the defendant was the operator of a motor vehicle and (2) that
while operating the vehicle, the defendant was under the
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influence of alcohol to such a degree as to render him incapable
of safe driving. Commonwealth v. Palmer, 751 A.2d 223, 228
(Pa. Super. 2000). To establish the second element, the
Commonwealth must show that alcohol has
substantially impaired the normal mental and physical
faculties required to safely operate the vehicle. Substantial
impairment, in this context, means a diminution or
enfeeblement in the ability to exercise judgment, to
deliberate or to react prudently to changing circumstances
and conditions. Evidence that the driver was not in control
of himself, such as failing to pass a field sobriety test, may
establish that the driver was under the influence of alcohol
to a degree which rendered him incapable of safe driving,
notwithstanding the absence of evidence of erratic or unsafe
driving.
Id. (citations and footnote omitted).
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en
banc).
Appellant argues that the evidence was “anemic, ambiguous, and
contradictory.” Appellant’s Brief at 25, 30-31. Appellant contends that no
witness testified to Appellant being impaired by alcohol to a degree that
rendered him incapable of safe driving. Id. at 25, 34, 38. He further
asserts that he passed two of the four field sobriety tests administered by
Officer Devenyi, including the Romberg balance test. He claims that the two
he failed were “inherently unreliable” and that his failure was attributable to
his diabetes/neuropathy. Id. Appellant stresses that the results of the
“most objective of the tests” – the portable breath test – registered an
alcohol level of 0.0. Id. at 25-26, 38. Appellant also states that he “did not
exhibit several other commonly expected signs of alcohol impairment, such
as slow, slurred speech.” Id. at 26. For these reasons, Appellant maintains
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that “the trial court’s conclusion that [Appellant] was impaired by alcohol
rests on a foundation of suspicion and conjecture rather than proven facts
and reliable evidence.” Id. at 39.
The Commonwealth responds that the evidence was sufficient to
demonstrate that Appellant had consumed enough alcohol to render him
incapable of safe driving because Appellant made an illegal U-turn,
“swerve[d] over a solid white line, then hit his breaks, and then swerve[d]
back over the line,” emitted a “moderate odor of alcohol” and had “glassy,
watery and bloodshot eyes,” performed poorly on field sobriety tests, and
admitted that he had been drinking. Commonwealth’s Brief at 12-15, 18.
The Commonwealth takes issue with Appellant’s assertion that he passed the
Romberg test, citing testimony that a Romberg test “isn’t pass or fail.” Id.
at 15, citing N.T., 9/29/16, at 58.
Two witnesses testified at Appellant’s trial. 2 The first was Ross
Township Police Officer Balazs Devenyi. Officer Devenyi testified to
observing Appellant’s vehicle make an illegal U-turn and then “swerve over
[the white] line for a second, apply its brakes, and then it swerved back over
that line.” N.T., 9/29/16, at 9-10. Officer Devenyi activated his siren and
lights to conduct a traffic stop. He stated:
Upon initial contact [Appellant] asked why I pulled him over, and
during that contact I smelled the moderate odor of an alcoholic
beverage on his breath, and I observed his eyes were glassy,
____________________________________________
2 Appellant did not present any witnesses, and stated that he did not wish to
testify. N.T., 9/29/16, at 71-72.
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watery and bloodshot, and I requested his driver’s license,
registration and proof of insurance.
Id. at 11. Based on his observations, Officer Devenyi asked Appellant to
exit the vehicle and perform standardized field sobriety tests. The officer
administered the horizontal gaze nystagmus, the walk and turn, the one leg
stand, and modified Romberg balance tests. Id. at 13. Appellant passed
the first test. Id. at 53. Appellant failed the walk and turn and one leg
stand tests. Id. at 13-14. As to the fourth test, Officer Devenyi testified
that he “instructed [Appellant] on how to complete the test, but he didn’t do
that properly.” Id. at 17. On cross-examination, Officer Devenyi testified
that he administered the Romberg balance test “[t]o make additional
observations about [Appellant],” but that it isn’t a “pass or fail” test. N.T.,
9/29/16, at 58, 63.
As a result of Appellant’s field sobriety testing, Officer Devenyi asked
Appellant to submit to a preliminary breath test, and Appellant agreed. The
breathalyzer test showed that Appellant had no alcohol on his breath,
although Officer Devenyi testified that he suspected at the time that the
breathalyzer was defective, and it was later determined to be faulty and
“taken out of service.” N.T., 9/29/16, at 35-36. Officer Devenyi testified
that Appellant admitted that he had been drinking. Id. at 23, 33.
While performing the field sobriety tests, Officer Devenyi noticed that
Appellant “had white powdery residue around his nostril, and there were
crumbs in his nose.” N.T., 9/29/16, at 13. Suspecting possible drug use,
Officer Devenyi requested that a K-9 team investigate the vehicle. Id. at
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15, 37, 63. An investigation located “a small zip lock bag with some white
powdery residue inside the cup holder of the vehicle” and “white powder
rubbed into the glove compartment door and also some on the front
passenger seat in the grains.” Id. at 16. Later, Appellant’s demeanor,
thirst, elevated blood pressure, and complaints that he was hot led Officer
Devenyi to suspect that Appellant might have been using cocaine. Id. at 21,
38-39. No testing was ever done of the powdered substances, however. Id.
at 46-48.
Officer Devenyi stated, “I didn’t believe [Appellant] could operate a
motor [vehicle] safely on the roadway.” N.T., 9/29/16, at 16. He repeated,
“I believed he was incapable of safe driving on the road, and I arrested him
for suspicion of driving under the influence.” Id. at 17; see also id. at 19,
36 (“I did not believe he was capable of safely driving on the roadway” and
“I believed [Appellant was] unable to operate a motor vehicle”).
The Commonwealth also called Ross Township Police Officer Jordan
Seese to testify.3 Officer Seese testified briefly to arriving at the scene of
the traffic stop, to Appellant being “a nice guy,” and to not observing Officer
Devenyi interacting unprofessionally with Appellant. N.T., 9/29/16, at 67-
69.
____________________________________________
3 Appellant objected to Officer Seese’s testimony on the basis that it “would
be redundant.” N.T., 9/29/16, at 64. In overruling Appellant’s objection,
the trial court said, “there has been substantial cross-examination [of Officer
Devenyi], and it has been to impugn his credibility. This is offered to
corroborate his observations, and it’s certainly admissible.” Id. at 64-65.
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In reviewing the above evidence in a light most favorable to the
Commonwealth as verdict-winner, we conclude that no relief is due
Appellant on his sufficiency argument. The statute under which Appellant
was convicted states that an individual “may not drive . . . a vehicle after
imbibing a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving . . . . 75 Pa.C.S. § 3802 (emphasis
added). Appellant does not dispute that he was driving or that he consumed
alcohol; his argument is that the “pittance” of evidence fails to establish
beyond a reasonable doubt that he was “impaired by alcohol to a degree
that rendered him incapable of safe driving.” Appellant’s Brief at 25. The
trial court found otherwise, and its findings are supported by both the record
and the case law.
Our Supreme Court has explained:
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. Blood
alcohol level may be added to this list, although it is not
necessary and the two hour time limit for measuring blood
alcohol level does not apply. Blood alcohol level is admissible in
a subsection 3801(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
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.
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Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).
Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011), on which
the trial court relied, expresses a similar teaching, with an emphasis on field
sobriety tests:
In order to be found guilty of DUI—general impairment, an
individual’s alcohol consumption must substantially impair his or
her ability to safely operate a vehicle. Commonwealth v.
Palmer, 751 A.2d 223 (Pa. Super. 2000). Evidence of erratic
driving is not a necessary precursor to a finding of guilt under
the relevant statute. The Commonwealth may prove that a
person is incapable of safe driving through the failure of a field
sobriety test. Id.; see also Commonwealth v. Smith, 831
A.2d 636 (Pa. Super. 2003). Herein, Appellant failed four
separate field sobriety tests, smelled of alcohol, and proceeded
to coast through a stop sign despite a police officer being in plain
view. This evidence viewed in a light most favorable to the
Commonwealth cannot be considered so weak and inconclusive
that no probability of fact can be drawn from the circumstances.
14 A.3d at 890.
Our review satisfies us that the evidence here was not, as Appellant
asserts, so “ambiguous and contradictory” that the trial court could not
convict Appellant on the basis of it. Although Appellant’s breathalyzer test
did not produce evidence of alcohol, Appellant admitted that he had
consumed alcohol and failed to pass some of the field sobriety tests that
Officer Devenyi administered. Officer Devenyi testified that Appellant
committed two traffic violations, smelled of alcohol, and had glassy, watery
and bloodshot eyes. As noted above, Appellant did not offer any evidence to
refute Officer Devenyi’s testimony.
In addition, Officer Devenyi concluded – and opined at trial – that
Appellant was incapable of safe driving. We have found repeatedly that a
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police officer who has perceived a defendant’s appearance and acts is
competent to express an opinion as to the defendant’s state of intoxication
and ability to safely drive a vehicle. See, e.g., Commonwealth v. Palmer,
751 A.2d 223 (Pa. 2000), citing Commonwealth v. Feathers, 660 A.2d
90, 95-96 (Pa. Super. 1995) (en banc), aff’d, 683 A.2d 289 (Pa. 1996).
Appellant argues, however, that Officer Devenyi did not arrest Appellant
because he suspected him of alcoholic intoxication, but because “he
suspected [Appellant] was under the influence of cocaine.” Appellant’s Brief
at 21. Appellant adds that “when Officer Devenyi’s testimony is taken as a
whole,” it is “evident that he did not believe that [Appellant] was impaired
by alcohol to a degree that rendered him incapable of safe driving” and that,
“contrary to the trial court's mistaken assertion in its 1925(a) opinion —
Officer Devenyi never offered that specific opinion.” Id. Our review of the
record discloses, however, that Officer Devenyi testified about Appellant’s
possible impairment by both alcohol (which he said he smelled on
Appellant’s breath and to which Appellant admitted drinking) and drugs.4
____________________________________________
4 Officer Devenyi testified on cross-examination by Appellant:
Q: So if I blew a 0.0 you came to the conclusion that I was
unable to operate the vehicle safely, and was that based on your
guess of my blood alcohol count, or was it based on your
perception and suspicion that I was on other substances?
A. It was a result of the field sobriety tests, your admissions and
my suspicion that you had drugs in your system.
Q. What admissions?
(Footnote Continued Next Page)
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The trial court was free to consider that testimony along with the other
evidence in the case and to conclude that Appellant was impaired and that
his consumption of alcohol caused the impairment.
We may not substitute our judgment for that of the trial court.
Rather, it was the exclusive province of the trial court, sitting as the finder of
fact, to determine the weight of the relevant evidence. See
Commonwealth v. Mitchell, 883 A.2d 1096, 1110–1111 (Pa. Super.
2005), appeal denied, 897 A.2d 454 (Pa. 2006); see also
Commonwealth v. Cruz, 71 A.3d 998, 1009 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013). Here, the trial court concluded that “th[e]
evidence was more than sufficient to sustain Appellant’s conviction of driving
under the influence.” Trial Court Opinion, 2/21/17, at 7. We may not
disturb that judgment. See Feathers, 660 A.2d at 96 (forbidding
“impermissible re-evaluation of the credibility of the witnesses and the
weight of the evidence”).
(Footnote Continued) _______________________
A. Your admissions of drinking.
Q. So I blew a 0.0 and told you I had two drinks, and you with
your infinite knowledge concluded I was not capable of operating
the vehicle because of alcohol?
A. People lie to me all the time, and they usually say they have
one or two drinks.
N.T., 9/29/16, at 37.
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In sum, upon review of the record and consistent with the prevailing
authorities, we conclude that Appellant’s sufficiency argument is without
merit. Accordingly, we affirm the judgment of sentence.
Unopposed application for relief to take judicial notice granted.
Judgment of sentence affirmed.
Judge Moulton joins the memorandum.
Judge Musmanno files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2017
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