Com. v. Glass, R.

J-S62010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEATLH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
RANDY SCOTT GLASS
Appellant No. 317 MDA 2017
Appeal from the Judgment of Sentence entered January 17, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-000-2191-2016
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2017
Appellant, Randy Scott Glass, appeals from the January 17, 2017
judgment of sentence imposing six months of probation plus fines and court
costs for driving under the influence of alcohol and driving with an open
alcoholic beverage container.1 We affirm.
The trial court’s opinion sets forth the pertinent facts:
In the instant case, witness James McMahan, testified that
[Appellant] appeared at the door of Mr. McMahan’s residence on
April 9, 2016, at approximately 7:30 p.m. with bloodshot, red
eyes. After speaking with [Appellant] and directing him to leave
the property, Mr. McMahan contacted the police. Officer Troy
Rogers and Officer Phillip Eck of the Manor Township Police
testified that they received a dispatch to Mr. McMahan’s property
at approximately 7:34 p.m. on April 9, 2016 and arrived at the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(a)(1) and 3809(a), respectively.
J-S62010-17
residence about four (4) minutes later. Upon arriving Officer
Rogers observed [Appellant] sitting in the driver’s seat of the
vehicle, which was parked in the driveway of Mr. McMahan’s
residence.
Upon approaching [Appellant] within his vehicle, Officer Rogers
testified that he could smell the odor of alcohol coming from within
the vehicle, that he observed [Appellant] fumble with his wallet to
retrieve his identification and that [Appellant] was slurring his
speech and had bloodshot eyes. Officer Eck also testified that
[Appellant] was slurring his speech and that there was an odor of
alcohol coming from the vehicle. Officer Eck further testified that
he could tell, based on his training and experience, that the odor
was that of alcohol after it has been metabolized, when it
emanates from the body and not from a container. Officer Rogers
testified that a glass tumbler was observed in the center console
of the vehicle with a tan liquid inside of it as well as a partially
emptied bottle of tequila and an empty Corona beer bottle behind
the driver’s seat of the vehicle. [Appellant] refused to exit the
vehicle when asked three (3) times and it took two (2) officers to
forcibly remove him from the vehicle. After being removed from
the vehicle, [Appellant] staggered and had trouble holding himself
up while walking. [Appellant] was not asked to complete field
sobriety tests because [Appellant] did not appear as if he could
safely complete those tests due to his inability to walk and
maintain his balance.
Both Officer Rogers and Officer Eck have training in the detection
of persons under the influence of alcohol. Both officers testified
that their training and experience led them to the conclusion that
[Appellant] was under the influence of alcohol to the extent that
he could not safely operate a motor vehicle. When asked,
[Appellant] admitted that he drove to Mr. McMahan’s residence
and had arrived only a few minutes before.
While [Appellant] did not state a specific time that he arrived at
Mr. McMahan’s residence, he did indicate that it was at some time
after 7:00 p.m. [Appellant] claimed that he purchased the bottle
of tequila on his way to Mr. McMahan’s residence, but had not had
anything to drink prior to arriving or prior to speaking with Mr.
McMahan. [Appellant] stated that it was only after speaking with
Mr. McMahan and returning to its vehicle that he opened, poured,
and began sipping on the tequila. [Appellant] testified that he
only had a few sips of tequila and does not chug drinks.
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J-S62010-17
Trial Court Opinion, 4/4/17, at 5-7 (footnotes omitted).
The incident occurred on April 9, 2016. Appellant proceeded to a bench
trial on January 17, 2017. The court found Appellant guilty of the
aforementioned issues, imposed sentence as set forth above, and this timely
appeal followed. Appellant challenges the sufficiency of the evidence in
support of both convictions, arguing the Commonwealth failed to prove that
he was intoxicated while driving or that he drove with an open container.
The applicable standard of review is as follows:
When evaluating a sufficiency claim, our standard is whether,
viewing all the evidence and reasonable inferences in the light
most favorable to the Commonwealth, the factfinder reasonably
could have determined that each element of the crime was
established beyond a reasonable doubt. This Court considers all
the evidence admitted, without regard to any claim that some of
the evidence was wrongly allowed. We do not weigh the evidence
or make credibility determinations. Moreover, any doubts
concerning a defendant's guilt were to be resolved by the
factfinder unless the evidence was so weak and inconclusive that
no probability of fact could be drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.3d 796 (Pa. 2011).
Section 3802 of the Motor Vehicle Code forbids an individual to “drive,
operate, or be in actual physical control of the movement of a vehicle” while
intoxicated. 75 Pa.C.S.A. § 3802(a). Section 3809 forbids “an individual who
is an operator or occupant in a motor vehicle” to possess an open alcoholic
beverage container. 75 Pa.C.S.A. § 3809(a). Appellant argues the evidence
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J-S62010-17
is insufficient because the Commonwealth failed to prove that he opened the
containers or consumed any alcohol until after he parked his vehicle.
We have reviewed the trial court’s opinion, the applicable law, the
parties’ briefs, and the record. We conclude that the trial court’s April 4, 2017
opinion accurately addresses Appellant’s arguments, and we affirm on the
basis of that opinion. In particular, we note that the trial court, sitting as
finder of fact, found Appellant’s testimony not credible. Furthermore, police
officers arrived on the scene within minutes of McMahan’s call, and the trial
court credited their testimony that Appellant was already intoxicated and that
he smelled of metabolized alcohol. The standard of review requires us to defer
to the fact finder’s credibility determinations and draw all reasonable
inferences in favor of the Commonwealth, as verdict winner. We direct that a
copy of the trial court’s opinion be filed along with this memorandum.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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IN THE COURT OF C0¥MON PL�AS OF LAN GASTER. COUNTY, PENNSYL
COMMONWEALTH
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RANDY SCOTI QLASS
OPINION
BY: KNISELY� J. April 3� 2017
Appellant/Defendant, Randy· Scott "Glass, appeals from the. judgment of
sentence imposed on January 11, 201_1. Defendant challenges th� sufficiency .otthe
evidence supporting ·his convictions for driving under the influence of alcohol,
. .
general. impairment,1 and. for possessing an open alcoholic beverage container-in
violation of the Restriction on A_lcoholic Beverages.I Defendant admitted to driving
only a few minutes prior to police finding hiJTI inside in· his vehicle, in a visibly
intoxicated state and possessing inside the vehicle a glass of alcohol, an open liquor
bottle with a significant amount emptied and an empty beer bottle·�·The evidence;
and all reasonable inferences drawn therefrom, establish each material element of
the offenses charged, and the commission thereof by ·. the accused, beyond a
· reasonable doubt.
.•
1 75 -, Pa.C.S.A. § 3802(a)(l).
:· 2 75 Pa.C.S.A. § 3809(a).
BACKGROUND
Defendant was convicted of one ( 1) count each of driving under the influence
· of alcohol (general impairment),3 defiant- trespass with notice through actual
communication" and violating the restrictions on alcoholic beverages by possessing
an open container as the operator of a vehicle on a highway! following a bench ·trial
. .
on January 17, 20(7. Defendant's aggregate sentence is six (6) months of probation,
fines and .costs and other relevant conditions.6 On February 16, 20.17, Defendant
filed a Notice of Appeal and pursuant to Pa.R.A.P. I 925(b) Order, Defendant filed
a Concise Statement of Errors Complained of on .Appeal on March 9, 2017.
Defendant challenges his convictions for driving under the influence of alcohol and
for violations of the restrictions on alcoholic beverages claiming that each were not
sufficiently supported by competent evidence,"
DISCUSSION
Thestandard for reviewing the sufficiency of evidence is well-settled.
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
3 75 Pa.C.S.A. § 3802(a)(l).
4 18 Pa.C.S.A. § 3503(b)(l)(i).
5 75 Pa.C.S.A. §
3809(a).
6 See, Sentencing Order, 1 /17/17; Sentencing Conditions Order; 1/17/17.
7 See, Defendant's Concise Statement of Errors Complained of on Appeal, 3/9/17, 1 I· II.
2
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.
Com. v. Teems, 14 A.3d 142, 144-45 (Pa.Super. 2013) (citing Commonwealth v,
Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010)) (citations omitted). The burden of
the Commonwealth may be established through wholly circumstantial evidence.
Com. v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012). Any doubts as to guilt are to
be resolved by the fact-finder "unless the evidence is so weak and inconclusive that,
as a matter of law, no probability of fact can be drawn from the combined
circumstances." Id An appellate court may not re-weigh the evidence or substitute
their judgment for that of the fact-finder. Id.I. Driving Under Influence of Alcohol - General Impairment
As to the charge of driving under the influence of alcohol with a general
impairment, the Commonwealth must prove that "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, 985 A.2d 871, 879 (Pa. 2009}. In proving
intoxication, "non-expert testimony is admissible to prove intoxication where such
testimony is based upon the witness' observation ... and where the witness can opine
as to whether the defendant was drunk." Com. v. Ragan, 652 A.2d 925, 928
(Pa.Super, 1995). Evidence of intoxication may include, but is not limited to, the
3
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following: the actions and behavior of the defendant; the defendant's demeanor,
including towards an officer; and the defendant's physical appearance, particularly
bloodshot eyes, the odor of alcohol and slurred speech. Com. v. Teems, 74 A.3d at
145.
Furthermore, while it is true that Subsection 3802(a)(l) is an "at the time of
driving" offense, it "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." Id. The
Commonwealth's ability to utilize wholly circumstantial evidence applies not only
to determining whether the defendant was intoxicated to the extent that he or she
was rendered incapable of safely operating the vehicle, but also to determining
whether the defendant was driving, operating or in actualphysical control of a motor
vehicle at the time of such intoxication. Com. v, Williams, 871 A.2d 254, 259
(Pa.Super. 2005). Such determination is made based upon the totality of the
circumstances (Id.) and the fact-finder is permitted to rely on his or her experience
· and common sense when assigning weight to the evidence (Com. v, Teems, 74 A.3d
at 145). It has been noted that "our jurisprudence does not require fact-finders to
suspend their powers of logical reasoning or common sense in the absence. of direct
evidence" but permits them to make "reasonable inferences from circumstantial
evidence introduced at trial." Com. v, Teems, 74 A.3d at 145.
4
In · the instant case, witness, James McMahan, testified that Defendant
· appeared at the door of Mr. McMahan's residence on April 9, 2016 at approximately
7:30 p.m. with bloodshot, red eyes," After speaking with Defendant and directing
him to leave the property, Mr. McMahan-contacted �e police.9·o�ficer Troy Rogers
and Officer Phillip Eck of the Manor Township Police testified that they received a
dispatch to Mr. Mclvlahan's p�operty at approximately 7:34 p.m. on .April 9; 2016
and arrived at the residence about four (4) minutes later." Upon arriving Officer
Rogers observed Defendant sitting in the driver's seat of the his vehicle, which was
. .
parked in the driveway of Mr. McMahan's residence.'!
Upon approaching Defendant within his vehicle, Officer Rogers testified that
_he could smell the odor of alcohol coming from within the vehicle, that he observed
Defendant fumble with his wallet to retrieve his identification and that Defendant
was slurring his speech and had bloodshot eyes.12 Officer Eck also testified that
Defendant was slurring his speech and that there was an. odor of alcohol coming
from the vehicle. 13 Officer Eck further testified that he .could tell, based on his
training and experience, that the odor was that of alcohol after it has been
8 N.T., Criminal Trial, 1/17/17, pp. 8·10, 12.
9 N.T., Criminal Trial, 1/17/17, p. 10.
10
N,T., Criminal Trial, 1117/17, pp._ 13, 14·15, 40, 42.
II N.T., Criminal Trial, 1/17/17, pp. 16�17.
12 N.T;, Criminal Trial, 1/17/17, pp. 17·18, 34.·
13 N.T., Criminal Trial, 1,117/17, p, 46.
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metabolized, when it emanates from the body and not from a container.14 Officer
Rogers testified that a glass tumbler was observed in the center console ofthe vehicle
with a tan liquid inside of it as well as a partially emptied bottle of tequila and an
empty Corona beer bottle behind the driver's seat of the vehicle. 1 s Defendant refused
to exit the vehicle when asked three (3) times and it took.two (2) officers to forcibly
remove him from the vehicle. 16 After being removed from the vehicle, Defendant
staggered and had trouble holding himselfup while walking.17 Defendant was not
asked to complete field sobriety tests because Defendantdid not appear as ifhe could
. safely complete those tests due to his. inability to walk and maintain his balance.18
Both Officer Rogers and Officer Eck have training in the detection of persons
.
under the influence of alcohol.19 Both officers testified that their training· and
experience led them to the conclusion that Defendant was under the influence of
alcohol to the extent that he could not safely operate a motor vehicle." When asked,
Defendant admitted that he drove to Mr. Mclvlahan's residence and had arrived only
a few minutes before. 21
14
N.T., Criminal Trial, 1117/17, pp. 41-42, 46.
IS N.T., Criminal Trial, 1117/17, pp. 18-19; cw. Ex. 6; cw. Ex. 7; cw. Ex. 9.
16
N.T., Criminal Trial, 1/17/17, pp. 21-23, 47-48.
17 N.T., Criminal Trial, 1/17/17, pp. 23-24, 48.
18
N.T., Criminal Trial, 1/17/17, pp. 24·25, 35.
19
N.T., Criminal Trial, 1/17/17, pp. 14, 28, 40-42.
20 N.T., Criminal Trial, 1/17/17, pp. 18, 22·23, 24, 52, 55.
21
N.T., Criminal Trial, 1/17/17, pp. 18, 21.
6
..
While Defendant did not state a specific time that he arrived at Mr.
McMahan's residence, he did indicate that ii was at some tii:ne after 7:00 p.m.22
Defendant claimed that he purchased the bottle of tequila on his way to Mr.
McMahan's residence, but had not had anything to drink prior to arriving or prior to
speaking with. Mr. McMahan.23 Defendant testified that it was only after speaking
with Mr. Mclvlahan and returning to his vehicle that he opened, poured and began
sipping on the tequila.24 Defendant testified that he only had a few sips of the tequila
and does not chug drinks.25
The testimony outlined above clearly indicates that Defendant _.operated his
vehicle .during the time when he or she was rendered incapable of safely doing so
· due to the consumption of alcohol. Immediately upon arriving at Mr. McMahan's
residence, Defendant was exhibiting signs of.being �ntoxicated as testified to my· Mr.
McMahan. Mere minutes later, Defendant was observed by officers to be exhibiting
other clear signs of being highly intoxicated,· including having bloodshot eyes,
slurring his speech, emitting the smell of alcohol, staggering and struggling to
maintain his balance. All of this was observed mere minutes after Defendant had
admittedly been driving. The testimony of Officer Rogers, ·Officer Eck and Mr.
22N.T., Criminal Trial, 1/17/17, pp. 63, 65.
23N.T., Criminal Trial, 1/17/17, pp .. 63-65, 72, 76, 80.
24 N.T., Criminal Trial, 1117/17, pp. 68-69.
25 N.T., Criminal Trial, 1117/17, p. 69.
7
McMahan wasfound to be credible, while the testimony of Defendant was found to
be not credible. It is simply illogical and unreasonable to believe thatwithin a few
. .
minutes, Defendant became intoxicated to the leve� at which he �as observed having
only taken a few sips of tequila. It is clear, beyond a reasonable doubt, thatDefendant
operated his vehicle during th� time when he or she was rendered incapable_ of safely
doing so due to the consumption of alcohol. ·
II. . Restrictions on Alcoholic Beverages
This offense is defined as follows:
. (a) General rule.v-Except as set forth in subsection (b), an individual
who is an operator .or an occupant in a motor vehicle .may not be in
possession -of an open alcoholic beverage container or consume a
controlled substance . �s defined in the, act of April 14, 1972 · (P .L.233,
·No.64), known as
_The· Controlled Substance, Drug, Device and
Cosmetic Act; or an alcoholic beverage in a motor vehicle while the ·
in
motor vehicle is located on a highway this Commonwealth.
75 Pa.C.S.A. § 3809(a) (footnote omitted).
Testimony and evidence at trial revealed beyond a reasonable doubt that
Defendant possessed a partially emptied container of tequila and an empty beer
· container in his vehicle while located on a highway in this Commonwealth. As stated
above, the alcoholic beverage containers were observed in Defendant's vehicle, with
Defendant present, mere minutes after Defendant was admittedly driving on public
roadways.26 Defendant's testimony that he did not open the bo�le ·of tequila until
26N.T., Criminal T�ial, 1/17/17, pp. 18-·i9, 21, 63, 65� CW. Ex. 6; CW. Ex. 7; CW. Ex. 9.
8
after he was parked in Mr. Mclvlahan's driveway was not credible for the reasons
stated above. Furthermore, Defendant himself did not contest the existence of the
open and empty beer bottle in his vehicle at the time he was driving and denied
opening it or consuming it after his arrival.27 Defendant's testimony that he did not
know the beer bottle was in the vehicle despite its presence directly beside the tequila
bottle that he admittedly placed in the vehicle and allegedly opened after the vehicle
was no longer moving was not credible.28 Therefore, it is clear, beyond a reasonable
doubt, that Defendant possessed a partially emptied container of tequila and an
empty beer container in his vehicle while located on a highway in this
Commonweal th.
For all the foregoing reasons, the judgment of sentence imposed on January
17, 2017 should not be disturbed.
BY THE CO��
��
HOWARDF. KNISELY
JUDGE
AITEST:
Copies to:
Kane Podraza, Esq., Assistant Public Defender
Office of the District Attorney n
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27 N.T., Criminal Trial, 1/17/17, pp. 72-73. -e
28 N.T., Criminal Trial, 1/17/17, pp. 63-65, 68-69, 76, 80; CW. Ex. 6; CW. Ex. 9. :t>
9