Com. v. Moody, J.

J-A08004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN ALLEN MOODY,
Appellant No. 1082 MDA 2014
Appeal from the Judgment of Sentence Entered May 19, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002479-2013
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 15, 2015
Appellant, John Allen Moody, appeals from the judgment of sentence
entered following his conviction of driving under the influence (“DUI”) with a
blood alcohol content (“BAC”) between .08% and .10%, 75 Pa.C.S. §
3802(a)(2). We affirm.
We summarize the facts of this case as follows. On the evening of
February 23, 2013, Officer Mark Jackson of the Lower Windsor Township
Police Department observed Appellant’s truck making a turn without using a
turning signal. Officer Jackson stopped the truck and upon approaching the
vehicle, noticed a strong odor of alcohol. Appellant was the only person in
the truck. Officer Jackson asked Appellant to exit and immediately smelled
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*
Retired Senior Judge assigned to the Superior Court.
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alcohol on Appellant’s person. Subsequently, Appellant performed poorly on
two field sobriety tests. Officer Jackson believed that Appellant was
intoxicated to a degree that rendered him incapable of safe driving.
Appellant agreed to submit to a chemical blood test at York Hospital.
Thereafter, Officer Jackson received a laboratory report with the results
indicating that at the time Appellant’s blood was tested, his BAC was .216%.
Based upon the results of the laboratory report, in conjunction with his
personal observations, Officer Jackson filed DUI charges against Appellant.
Following a trial on April 1 and 2, 2014, a jury convicted Appellant of DUI
under 75 Pa.C.S. § 3802(a)(2) (BAC between .08% and .10%). On May 19,
2014, the trial court sentenced Appellant to an aggregate term of
incarceration of eleven and one-half to twenty-three months, followed by
two years of probation. Appellant filed a timely post-sentence motion, which
the trial court denied. This appeal followed.
Appellant presents the following issues for our review:
1. Whether there was insufficient evidence to support the jury’s
finding of guilt on count 5, DUI blood alcohol concentration
(BAC) between .08% and .10%, because the Commonwealth
failed to present any evidence that [Appellant’s] BAC was
between .08% and .10%?
2. Whether the jury’s verdict as to count 5 is against the weight
of the evidence when the Commonwealth failed to present any
credible evidence to support a finding that [Appellant’s] BAC was
between .08% and .10%?
Appellant’s Brief at 5.
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In his first issue, Appellant argues that there was insufficient evidence
to support the verdict. Specifically, Appellant contends that the
Commonwealth failed to present evidence to establish that his BAC was
between .08% and .10%, as required for a conviction under 75 Pa.C.S. §
3802(a)(2). Appellant notes that the forensic toxicologist testified that
Appellant’s BAC was .216%, and there was no evidence that could reduce
his BAC from .216% in order to support the conviction. Upon review, we
conclude that this issue lacks merit.
When reviewing challenges to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as
verdict winner, giving the prosecution the benefit of all reasonable inferences
to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d
226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed
sufficient to support the verdict when it establishes each material element of
the crime charged and the commission thereof by the accused, beyond a
reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005)). The Commonwealth need not establish guilt
to a mathematical certainty, and it may sustain its burden by means of
wholly circumstantial evidence. Id. In addition, this Court may not
substitute its judgment for that of the fact finder, and where the record
contains support for the convictions, they may not be disturbed. Id. Lastly,
we note that the finder of fact is free to believe some, all, or none of the
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evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.
Super. 2006).
The Pennsylvania Crimes Code defines the offense of DUI as follows:
§ 3802. Driving under influence of alcohol or controlled
substance
(a) General impairment.—
(1) 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.
(2) 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 alcohol concentration in the individual’s
blood or breath is at least 0.08% but less than
0.10% within two hours after the individual has
driven, operated or been in actual physical control of
the movement of the vehicle.
(b) High rate of alcohol.— 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 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.
(c) Highest rate of alcohol.— 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 alcohol concentration in the individual’s blood or breath is
0.16% or higher 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.
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Recently, in Commonwealth v. Houck, 102 A.3d 443 (Pa. Super.
2014), which is a case procedurally similar to the one presently before us, 1
we summarized the law concerning verdicts of lesser included offenses as
follows:
Established Pennsylvania law states a defendant can be
convicted of a crime that was not actually charged when the
uncharged offense is a lesser-included offense of the charged
crime. See Commonwealth v. Sims, 591 Pa. 506, 919 A.2d
931 (2007) (citing Commonwealth v. Carter, 482 Pa. 274, 393
A.2d 660 (1978)). “As long as the conviction is for a lesser-
included offense, the defendant will have been put on notice of
the charges against him and can adequately prepare a defense.”
Commonwealth v. Reese, 725 A.2d 190, 191 (Pa. Super.
1999), appeal denied, 559 Pa. 716, 740 A.2d 1146 (1999). At
the heart of this issue is whether the defendant had fair notice
and an opportunity to present an adequate defense.
Commonwealth v. Pemberth, 339 Pa. Super. 428, 489 A.2d
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1
We set forth the procedural history in Houck as follows:
Instantly, the Commonwealth charged Appellant with one
count of DUI under Section 3802(c), plus related summary
offenses, and presented evidence that Appellant’s Breathalyzer
results indicated a BAC of 0.17% within two hours of the traffic
stop. At trial, the defense disputed the BAC level by challenging
the accuracy of the testing machine because it had not been
adjusted for daylight savings time. Counsel sought to
characterize the time calibration as suggestive of a malfunction
of the testing equipment to call into question the BAC
measurement. The court’s unopposed jury instructions allowed
the jury to decide if the Commonwealth had proved Appellant
was DUI and, if so, to select from one of three separate BAC
ranges according to the evidence presented at trial. The jury
found Appellant guilty of DUI with a BAC between 0.10% and
0.159%, a range consistent with Section 3802(b). Appellant did
not object to the verdict when entered.
Houck, 102 A.3d at 451-452.
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235, 237 (1985). “This end has frequently been achieved in one
of two ways: either the Commonwealth will give an accused
express notice by charging him with the less culpable offense or
it will give him implicit notice through the information where the
proven, but uncharged crime is a lesser-included offense of the
charged, but unproven, offense.” Id.
Houck, 102 A.3d at 449-450.
The Court in Houck then described the various approaches to
evaluating lesser-included offenses in Pennsylvania as follows:
There are “three varying approaches” to determine what
constitutes a lesser-included offense: the statutory-elements
approach, the cognate-pleadings approach, and the evidentiary
approach. Sims, supra at 517, 919 A.2d at 938. The Supreme
Court summarized these approaches as follows:
The statutory-elements approach began at common
law and is used in the federal courts and in various
state courts. Under this approach, the trial court is
required to identify the elements of both the greater
charge and the lesser charge and determine whether
it is possible to commit the greater offense without
committing the lesser offense. If it is not possible,
then the lesser offense is considered a lesser-
included offense of the greater crime.
Pursuant to the cognate-pleading approach, there is
no requirement that the greater offense encompass
all of the elements of the lesser offense. Rather, it is
sufficient that the two offenses have certain
elements in common. The focus of this approach is
on the pleadings as the trial court must determine
whether the allegations in the pleadings charging the
greater offense include allegations of all of the
elements of the lesser offense. If so, the lesser
charge is considered a lesser-included offense of the
greater charge. As this approach centers on the
pleadings of the case, notice and due process
violations are not generally grave concerns.
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Finally, the evidentiary approach looks to the actual
evidence established at trial to assess the
relationship between the greater and lesser charges.
The lesser offense may have elements that are
distinct from the greater offense and still be
considered a lesser-included offense, as long as the
evidence presented at trial to prove the greater
offense actually establishes the elements of the
lesser offense. Generally, courts adopting this
approach require that the same underlying conduct
establish the elements of both offenses.
Sims, supra at 517-518, 919 A.2d at 938. Sims held the
defendant could be convicted of an “attempt” crime, although
the Commonwealth had charged the defendant only with the
completed offense, because the attempt crime was a cognate
offense of the completed crime. Id. at 524, 919 A.2d at 942.
Sims represents the proposition that a jury can convict a
defendant of an uncharged lesser-included offense but not of
an uncharged greater offense. Id. See, e.g., Commonwealth
v. Haight, 50 A.3d 137 (Pa. Super. 2012) (affirming conviction
for uncharged Section 3802(b) as cognate offense of charged
Section 3802(c), where defense strategy called into question
accuracy of blood test results; defense strategy led to conviction
under Section 3802(b)); Commonwealth v. Sinclair, 897 A.2d
1218, 1222 (Pa. Super. 2006) (ensuring consistency in case law
to declare Section 3802(b) as cognate offense of Section
3802(c), where case arose from same facts already known to
defendant and offenses involved same basic elements).
Houck, 102 A.3d at 450-451 (emphasis in original).
Thereafter, the Houck Court set forth the following with regard to
Pennsylvania’s DUI statute and lesser included offenses:
In general, Section 3802(c) forbids an individual to 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
0.16% or higher within two hours after the individual has driven,
operated or been in actual physical control of the movement of
the vehicle. See 75 Pa.C.S.A. § 3802(c). As the relevant
statute makes clear, Section 3802(c) includes all of the elements
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of Section 3802(b), notwithstanding the ranges provided in the
two sections, because a BAC of 0.16% necessarily subsumes all
lesser BAC ranges as set forth in Section 3802(b) and Section
3802(a)(2). In other words, an individual with a BAC of 0.16%
or above will unavoidably have a BAC of at least 0.08% to
0.159%. Applying the three methods of Sims, supra, under the
statutory elements approach to lesser-included offenses, it is not
possible to commit a Section 3802(c) offense without committing
a Section 3802(b) offense. Under the cognate pleading
approach to lesser-included offenses, an allegation of Section
3802(c) includes the elements of Section 3802(b). Finally,
under the evidentiary approach to lesser-included offenses, we
look to the actual evidence established at trial to assess the
relationship between the greater charge and the lesser offense.
Although the lesser offense of Section 3[802](b) may call for a
BAC range lower than the range in the greater offense of Section
3802(c), Section 3802(b) can still be considered a lesser-
included offense, because the evidence at trial to prove the
Section 3802(c) offense established the elements of the Section
3802(b) offense. Consistent with courts adopting this approach,
here the same underlying conduct established the elements of
both offenses. See Sims, supra. The jury was therefore free
to convict [Houck] under Section 3802(b), even where the
Commonwealth charged only Section 3802(c), as the record
evidence at trial reasonably supported a verdict on the lesser
offense of Section 3802(b). See Haight, supra.
Houck, 102 A.3d 452-453. In essence, the Court in Houck held that an
individual charged with DUI with a BAC above .16% can be found guilty of a
lesser-included BAC, such as in this case where the jury convicted Appellant
of having a BAC between .08% and .10%, even though that lesser-included
crime was never contained in the charging documents.2 Therefore, the
decision in Houck is binding precedent upon this Court.
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2
We note that in his reply brief filed with this Court, Appellant asserts that
the holding in Houck is merely dicta, and therefore lacks precedential value.
(Footnote Continued Next Page)
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Here, our review of the certified record reflects the Commonwealth
presented evidence in the form of blood testing, which established that
Appellant had a BAC of .216%. N.T., 4/1-2/14, at 121-149. Accordingly,
this evidence was sufficient for the jury to return a verdict of guilty of DUI
with a BAC between .08% and .10%. Hence, Appellant’s contrary claim
lacks merit.
In his second issue, Appellant argues that the verdict was against the
weight of the evidence. Appellant argues that the BAC result is unreliable
because Appellant’s whole blood was tested, the Commonwealth had only
the forensic toxicologist testify, and the toxicologist never actually tested
Appellant’s blood sample. Rather, the toxicologist reviewed the work that
other laboratory employees had performed.
_______________________
(Footnote Continued)
To support this claim, Appellant relies upon language that Houck “arguably
waived for purposes of [the] appeal his claim of error respecting the
verdict,” Houck 102 A.3d at 454, as Houck “did not make a
contemporaneous objection to the jury instruction, the verdict sheet, or the
verdict.” Id. We disagree with Appellant’s interpretation of the holding in
Houck as being merely dicta due to this language.
Moreover, to the extent Appellant would have us ignore the holding in
Houck, we observe that we must follow the decisional law established by
our own Court. Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa.
Super. 2009). Unless or until Houck is overturned by an en banc panel of
this Court, or by a decision of the Pennsylvania Supreme Court, it continues
to be viable precedent. Id.
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In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Widmer, 560
Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000);
Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
1189 (1994). 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. Widmer, 560
A.2d at 319-20, 744 A.2d at 752. 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 320, 744 A.2d at 752 (citation omitted). It has often been
stated that “a new trial should be awarded when the jury’s
verdict is so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Brown, 538 Pa.
at 435, 648 A.2d at 1189.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. 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. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of
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the evidence and that a new trial should be granted
in the interest of justice.
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the least assailable of its
rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).
Our review of the record reflects that the trial court addressed
Appellant’s challenge to the weight of the evidence and determined that it
lacked merit. Specifically, the trial court stated the following with regard to
Appellant’s challenge to the weight of the evidence supporting his conviction
of DUI:
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Next, the Appellant asserts that the jury’s guilty verdict
regarding the DUI, First Tier, is against the weight of the
evidence presented during trial. The Court disagrees.
***
The Appellant’s argument that the verdict is against the
weight of the evidence is without merit. At the jury trial,
defense counsel posed no objection to the Court reading the jury
instructions specifically permitting it to “make a determination as
to what [Appellant’s] blood-alcohol content was.” N.T., Trial
4/1-4/2/14, p. 243. Three BAC ranges were listed on the verdict
slip provided to the jury: .08% to .099%, .10% to .159%, and
.16% or above. Id. “If you do find that the Commonwealth has
sustained its burden” the jury instructions continued, “then you'll
drop down and make a determination by an X as to what range
you find [Appellant’s] blood-alcohol content.” Id.
The jury is the ultimate finder of fact at trial. Although the
testimony elicited from the Commonwealth’s witness revealed a
BAC of .216%, the jury is empowered with the ability to weigh
the evidence and testimony and determine what weight to give
the testimony of the expert in regard to the BAC. In this case,
the jury determined that the expert opinion was sufficient to find
the Appellant guilty of driving while his BAC was between .08%
and .099%. Therefore, the Court finds that this verdict does not
go against the weight of the evidence.
Trial Court Opinion, 8/29/14, at 4-5.
The jury, sitting as the finder of fact, was free to believe all, part, or
none of the evidence against Appellant, as was its right. The jury weighed
the evidence and concluded Appellant perpetrated the crime of DUI under 75
Pa.C.S. § 3802(a)(2). This determination is not so contrary to the evidence
so as to shock one’s sense of justice. We decline Appellant’s invitation to
assume the role of fact finder and to reweigh the evidence. Accordingly, we
conclude that the trial court did not abuse its discretion in determining
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Appellant’s weight of the evidence claim lacked merit. Thus, this claim fails
to provide Appellant relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
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