Com. v. Herrera, R.

J-A05027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
REINALDO HERRERA,
Appellant No. 1818 WDA 2015
Appeal from the Judgment of Sentence Entered November 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001160-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 09, 2017
Appellant, Reinaldo Herrera, appeals from the judgement of sentence
of 90 days’ intermediate punishment, a concurrent term of 6 months’
probation, and a $1500 fine,1 imposed following his conviction for three
counts of driving under influence of alcohol or controlled substance (DUI), 75
Pa.C.S. § 3802, all of which stemmed from the same incident. Appellant
claims the evidence was legally insufficient to support his conviction. After
careful review, we affirm.
The trial court summarized the facts adduced at trial, as well as the
court’s relevant credibility determinations, as follows:
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1
Appellant was also ordered to attend safe driving school, pay court costs,
undergo a drug and alcohol evaluation, and to comply with any resulting
treatment recommendations from that evaluation.
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The facts presented to this [c]ourt and found to be credible
are as follows: on October 25, 2014, officers responded to a one
-vehicle motorcycle accident on Steuben Street in the City of
Pittsburgh. Officer Loughran, an officer with the City of
Pittsburgh since 2005, testified that when he arrived on the
scene of the accident, he found a damaged motorcycle resting
near a cement median in the middle of the road. He next
noticed [Appellant] speaking with medics, and observed a cut on
[Appellant]'s head. When he approached [Appellant], Officer
Loughran stated [that Appellant] smelled of alcohol, and recalled
[Appellant’s] stating he had been coming from a friend's house
in Mt. Washington. Officer Loughran further testified that the
damage to the motorcycle was so extensive that it had to be
towed.
Officer Timothy Bateman, an officer with the City of
Pittsburgh for 16 years, testified that during his time with the
department he has made over 200 DUI arrests and has
significant experience with DUI offenders. He testified that upon
arriving on the scene, he observed that the motorcycle had a
damaged wheel well rendering it inoperable. He stated that it
was a well-lit, clear, and dry night, and that he observed no
debris in the roadway that could have caused the accident. He
determined that the owner of the motorcycle was [Appellant],
and that he was the operator of the vehicle, as there were no
other individuals in the vicinity of the accident. Based upon his
experience, Officer Bateman testified that typically, DUI
offenders can emit an odor of alcoholic beverages, have glassy
or bloodshot eyes, slurred speech, difficulty standing, walking, or
have an unsteady gait. Officer Bateman testified that he
witnessed many of these traits while observing and talking to
[Appellant], including glassy eyes, slurred speech and the odor
of alcohol. He also observed that [Appellant] was "loud" and "a
little angry," and that "his demeanor was that of someone who
appeared to be intoxicated." [N.T., 9/25/15, at 20].
Due to his observations, Officer Bateman testified that he
requested that [Appellant] perform a series of field sobriety
tests. [Appellant] first attempted the finger-to-nose test, but he
was unable to successfully complete this test. On his first
attempt, [Appellant] missed his nose and touched his upper lip
and on his second attempt, he "didn't know where his right or
left index finger was." [Id. at 21]. [Appellant] then attempted
the nine-step heel-to-toe test. He also unsuccessfully completed
this test by walking off of the straight line, failing to touch heel
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to toe, and stopping the test prior to completion. Finally, Officer
Bateman requested [that Appellant] perform the one-legged
stand test and [Appellant] stated that he had a bad leg. At this
point, [Appellant] became "verbal, combative, and abusive"
toward Officer Bateman and his partner. [Id. at 22].
[Appellant] was placed under arrest. After [Appellant] refused
medical attention, he was transported [to a police station] for a
breath test.
Officer Kevin Walters, currently a Patrol Sergeant for the
City of Pittsburgh, has a total of fifteen years' experience as a
City of Pittsburgh Police Officer including seven years' experience
in traffic accident investigation. With regard to DUI offenders,
Officer Walters received certification to operate three different
breath test instruments and has completed over 200 hours in
DUI related training. Officer Walters was working the night shift
on October 25, 2014 when [Appellant] was brought in for a
breathalyzer test. Officer Walters testified [that Appellant] was
placed in a cell for the standard 20-minute observation, after
which he was asked if he would submit to the breathalyzer.
[Appellant] refused. At this point, Officer Walters read the DL-
26[2] and the O'Connell warnings[3] to [Appellant]. [Appellant]
again refused to submit to the breathalyzer test.
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2
The DL-26 is a form issued by Pennsylvania’s Department of Transportation
describing Pennsylvania’s implied consent law, 75 Pa.C.S. § 1547.
3
Our Supreme Court has stated:
The phrase, “O'Connell warning”, is a shorthand
expression for the duty imposed upon a police officer to inform a
motorist, who has been asked to submit to chemical testing, that
the Miranda rights are inapplicable to a request for chemical
testing under the Implied Consent Law. Commonwealth,
Department of Transportation v. O'Connell, 521 Pa. 242,
555 A.2d 873 (1989). The O'Connell warning must specifically
inform a motorist (1) that his driving privileges will be
suspended for one year if he refuses chemical testing; and (2)
that his Miranda rights do not apply to chemical testing.
Commonwealth, Department of Transportation v. Ingram,
538 Pa. 236, 648 A.2d 285 (1994).
(Footnote Continued Next Page)
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During the 20-minute observation period, Officer Walters
noted that [Appellant] emitted a moderate odor of alcoholic
beverages, had glassy, bloodshot eyes and exhibited conduct
consistent with someone who is impaired. Officer Walters noted
that moderate odor of alcohol is consistent with someone who
has had more than just a few drinks. After the second refusal,
[Appellant] remained in the holding cell until his ride home
arrived.
[Appellant] waived his right not to testify and took the
stand in his defense. [Appellant testified that he] was riding his
2011 Harley Davidson through the West End on October 25,
2014 when a blue car came up on his right. He stated that he
looked sideways toward the car [and] then he had the accident.
He further testified that he does not recall the actual accident.
[Appellant] testified he is an experienced rider, and has been
riding motorcycles since he was a child. [Appellant] testified
that he had consumed two and a half beers prior to operating his
motorcycle and was running late to meet his ex-wife and son.
[Appellant] recalled hitting his head during the accident,
and had a vague recollection of the events following the
accident. [Appellant] admitted he did not seek medical attention
until some point after the accident. He received treatment for
an infection from his superficial leg wounds.
This [c]ourt did not find [Appellant]'s testimony to be
credible as a whole, however, there are portions of his testimony
that were credible. Specifically, this [c]ourt finds that
[Appellant]'s testimony as to his operation of the motorcycle at
the time of the accident to be credible. Further, [Appellant]'s
testimony that he had consumed alcohol prior to operating his
motorcycle was credible. This [c]ourt found that [Appellant]'s
testimony as to the amount of alcohol he consumed, the
presence of a blue vehicle, and the extent of his injuries not to
be credible.
Trial Court Opinion (TCO), 6/7/16, at 2-6 (some internal citations omitted).
_______________________
(Footnote Continued)
Commonwealth, Dept. of Transp., Bureau of Driver Licensing v.
Boucher, 691 A.2d 450, 452 (Pa. 1997) (referencing Miranda v. Arizona,
384 U.S. 436 (1966)).
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Appellant was ultimately charged with three counts of DUI4 and
reckless driving. Following a non-jury trial held on September 25, 2015, he
was convicted of all DUI counts, but found not guilty of reckless driving. On
November 9, 2015, he was sentenced as stated above. Appellant filed a
timely notice of appeal on November 19, 2015, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement on December 9, 2015. The trial court issued
its Rule 1925(a) opinion on June 7, 2016.
Appellant now presents the following question for our review:
Under Pennsylvania law, does the Commonwealth survive a
challenge to the sufficiency of the evidence of [DUI] charges,
when the Commonwealth fails to establish [that] Appellant was
intoxicated while operating a vehicle?
Appellant’s Brief at 4.
Our standard of review of sufficiency claims is well-settled:
A claim challenging the sufficiency of the evidence is a question
of law. 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. Where the evidence offered to support the
____________________________________________
4
The multiplicity of DUI counts charged was a consequence of the various
sentencing provisions which applied to the circumstances attendant to the
underlying DUI offense. See 75 Pa.C.S. § 3802(a)(1) (defining the
underlying DUI offense); see 75 Pa.C.S. § 3803(b) (grading refusals to
submit to a blood or breath test to determine blood-alcohol content (B.A.C.)
and DUI offenses involving an accident causing injury as misdemeanors of
the first degree, rather than the baseline second-degree misdemeanor
grading applying to basic first-time DUI offenses); see 75 Pa.C.S. § 3804(b)
(defining the applicable penalties for a DUI involving an accident causing
injuries); and see 75 Pa.C.S. § 3804(c) (defining the applicable penalties
for a DUI involving a refusal to submit to B.A.C. testing).
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verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Appellant’s convictions all fell under the general impairment provision
of the DUI law, which states: “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. § 3802(a)(1). Our Supreme Court has clarified
that “subsection 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, 985 A.2d
871, 879 (Pa. 2009). Moreover,
[t]he 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. … The
weight to be assigned these various types of evidence presents a
question for the fact-finder, who may rely on his or her
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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….
Id. at 879.
Regarding Appellant’s challenge to the sufficiency of the evidence, the
trial court found as follows:
In this matter, the evidence presented established that
[Appellant] operated his motorcycle and was rendered incapable
of safely doing so due to the consumption of alcohol. First,
[Appellant] admitted to operating his motorcycle at the time of
the accident, thus the first element of DUI-general impairment,
that the accused was operating a vehicle, is satisfied. With
regard to being rendered incapable of safely operating his
motorcycle due to his alcohol consumption, the testimony of
Officer Bateman and Officer Walters established that he was
impaired. Officer Bateman indicated that [Appellant] emitted a
moderate odor of alcohol, had glassy and bloodshot eyes, and
failed two field sobriety tests. Further, he testified that
[Appellant] exhibited the demeanor of an individual who was
impaired due to alcohol consumption. Officer Walters
corroborated Officer Bateman's observations by testifying that
[Appellant] emitted a moderate odor of alcoholic beverages, had
glassy bloodshot eyes, and behaved consistent with an individual
who is impaired. Based upon these facts, the evidence was
sufficient to support a conviction of DUI-general impairment.
TCO at 7.
Appellant contends, however, that:
Here, the lower [c]ourt relied on the testimony from two
officers that stated … Appellant had a moderate odor of alcohol
emanating from his person, glassy eyes, failed two field sobriety
tests and behaved in a manner consistent with a person being
intoxicated.
A closer review of the trial testimony reveals that Officer
Bateman only stated that the Appellant had glassy eyes as
opposed to bloodshot eyes. Of the many observations Officer
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Bateman states [that] he notices in people who are under the
influence, Officer Bateman did not notice that … Appellant had
difficulty standing, an unsteady gait, was yelling or having
difficulty walking or talking. The officers did not observe …
Appellant driving or observe the accident. No witnesses were
produced that offered testimony of … Appellant driving or were
witnesses to the accident.
Further, Officer Bateman admitted that he was unable to
determine whether a person with a head injury such as …
Appellant, would have slurred speech or trouble with words as a
result of [the] head injury. Similarly, Officer Bateman was
unable to determine whether a person with a head injury[]
would have trouble with swaying or balance. Officer Bateman
finally admitted that a person with a leg injury would have
difficulty standing.
In sum, the same characteristics that led Officer Bateman
to believe that … Appellant was intoxicated could have also
stemmed from the injuries resulting from the accident, which
was established through cross examination testimony from
Officer Bateman and testimony from … Appellant.
Appellant’s Brief at 10-11.
Appellant’s arguments are unconvincing. First, Appellant cites to no
authority suggesting that the observation of glassy eyes is substantially
different from an observation of bloodshot or bloodshot and glassy eyes. As
the Segida Court indicated, there is no exclusive list of factors which can be
considered in a prosecution for general impairment under the DUI statute.
Perhaps the presence of glassy eyes indicates a lesser degree of intoxication
than bloodshot eyes, or maybe some intoxicated persons’ eyes appear
glassy and others’ bloodshot, while some intoxicated persons’ eyes exhibit
both symptoms simultaneously. Whatever the truth of the matter, Appellant
has simply failed to offer any explanation regarding how the inference of
intoxication is significantly impacted by the observation of exclusively glassy,
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rather than bloodshot, or glassy and bloodshot eyes. Accordingly, we attach
no significance to the lower court’s misstatement that Officer Bateman had
observed Appellant’s bloodshot eyes. Regardless, Officer Walters did, in
fact, observe that Appellant had “glassy, bloodshot” eyes when he was taken
to the police station for B.A.C. testing. N.T., 9/25/15, at 39.
Second, Appellant’s summary of conditions or behaviors which were
not observed by Officer Bateman is wholly irrelevant. Appellant cites to no
legal authority suggesting that all possible indications of intoxication must be
present to sustain a conviction under Section 3802(a)(1) on sufficiency
grounds. As noted by the trial court, Appellant displayed several signs of
intoxication. Appellant emitted an odor of alcohol noticed by both officers.
He exhibited glassy eyes to Officer Bateman, and bloodshot, glassy eyes to
Officer Walters. Appellant also failed two field sobriety tests. Additionally,
Officer Bateman testified that, during his interaction with Appellant,
Appellant was “[l]oud, a little angry, [and] not following directions.” N.T.,
9/25/15, at 20. Moreover, Appellant admitted, during the course of his own
testimony, that he had consumed approximately 2½ beers just prior to
operating his motorcycle. Id. at 50. Such evidence is, collectively,
sufficient to establish his violation of Section 3802(a)(1).
Third, Appellant’s concern regarding Officer Bateman’s failure to
observe his driving is of no consequence in the circumstances of this case.
Appellant was discovered at the scene of a motorcycle accident. Officer
Bateman determined that Appellant owned the motorcycle involved. N.T.,
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9/25/15, at 18. Officer Bateman testified, without any objection by
Appellant, that he had told another officer that he was driving. Id. at 20.
Indeed, he admitted, during his own testimony, that he was riding his
motorcycle just prior to being involved in an accident. Id. at 49. Simply
put, there was no dispute at trial that Appellant was operating the
motorcycle at the time it crashed. His claim that “[n]o witnesses were
produced that offered testimony of … Appellant driving or were witnesses to
the accident,” unsuccessfully, and somewhat frivolously, attempts to
obfuscate this undisputed fact. Appellant’s Brief at 10.
Fourth, Appellant did offer circumstantial evidence, through his own
testimony, and through his cross-examination of Officer Bateman, that the
signs of his intoxication might also have been consistent with a preexisting
leg injury and/or a head injury sustained in the accident. As noted by the
Commonwealth, however, Appellant twice refused medical assistance at the
scene. N.T., 9/25/15, at 23. He also never subsequently sought treatment
for a head injury sustained in the accident. Id. at 65 (Appellant’s stating
that he only sought treatment for a leg injury).
Under sufficiency review, we must “view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.” Widmer, 744 A.2d
at 751. It was not at all unreasonable in this case for the trial court to
conclude that Appellant’s behavior and other characteristics of intoxication
were in fact due to his intoxication, rather than to any preexisting injuries or
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injuries sustained in the accident. Moreover, to the extent that Appellant is
attempting to challenge the weight afforded to this evidence by the trial
court, we deem such arguments waived due to his failure to preserve a
weight-of-the-evidence claim in his Rule 1925(b) statement. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”).
Finally, Appellant argues that his accident resulted from the actions of
another driver, and was not proven to be a result of his intoxication. While
in certain cases, evidence pertaining to the causation of an accident may
support an inference of intoxication, we see nothing in the trial court’s
analysis in this case which suggests that it based its verdict on Appellant’s
involvement in the accident. Furthermore, Section 3802(a)(1) does not
contain any elements requiring such a showing. Indeed, it may very well be
the case that Appellant’s accident was caused by another individual.
Nevertheless, even if innocent in that respect, Appellant could still be held
accountable for driving his motorcycle while intoxicated to the extent that it
rendered him incapable of safe driving. Indeed, this is reflected in the trial
court’s determination that Appellant was guilty of DUI, but not guilty of
reckless driving. For all of the above reasons, we conclude that Appellant’s
sufficiency claim is meritless.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2017
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