Com. v. McNabb, C.

J-S09013-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAROL MCNABB :
:
Appellant : No. 1378 WDA 2022
Appeal from the Judgment of Sentence Entered September 1, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0002714-2021
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 22, 2023
Appellant, Carol McNabb, appeals from the judgment of sentence of six
months’ probation, imposed after she was convicted, following a non-jury trial,
of driving under the influence of alcohol (“DUI”), 75 Pa.C.S. § 3802(a)(1), and
one summary traffic offense. Appellant solely challenges the weight of the
evidence to sustain her conviction. We affirm in part and vacate in part.
The trial court set forth a detailed summary of the facts and procedural
history of Appellant’s case, as follows:
Factual History
The instant case arises out of a traffic stop and subsequent
investigation of [Appellant’s] vehicle on June 5, 2021[,] in
Greensburg, Westmoreland County. The evidence presented at a
non-jury trial established that, while patrolling in a marked police
cruiser in the early morning hours on the date of the incident,
Police Officer Jonathan Murphy, of the City of Greensburg Police
Department, observed a silver Ford Escape in the right lane make
an illegal left-hand turn onto Bell Way in Greensburg. Officer
Murphy followed the vehicle and observed it pull past the white
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stop line at a red traffic light before making a “relatively wide”
turn, in which the tires of the right side of the car crossed over
the parking stalls on the right-hand side. Officer Murphy also
observed the vehicle swerve slightly into the left lane and then
jerk back into the right lane and “fade slightly over into the left-
hand lane” with the driver’s side tires on the yellow center line.
Officer Murphy indicated that he activated his lights and sirens
and initiated a traffic stop of the vehicle. At this time, Officer
Murphy testified that the driver of the vehicle got out of her car
and attempted to walk towards his patrol vehicle; however, he
instructed the driver to remain in her vehicle. Upon approach of
the vehicle, Officer Murphy stated that [Appellant] was a little
confused, and he observed her fumble her keys before turning the
vehicle on to put down her window. Officer Murphy identified the
driver of the vehicle as [Appellant]. He indicated that [Appellant]
could not really give an explanation as to where she was coming
from other than saying she was coming from stores. While
speaking with her, Officer Murphy detected [Appellant’s] speech
to be a little slowed and slurred, and he observed [Appellant] to
have glassy, bloodshot eyes. Officer Murphy testified that he
requested [Appellant] to perform standardized field sobriety tests
and when she consented, Officer Murphy conducted the horizontal
gaze nystagmus (HGN), the walk and turn, and the one[-]leg
stand tests.
During the HGN test, Officer Murphy … detected some indicators
of impairment. During the walk and turn test, which was
conducted in a flat and well-lit parking lot, Officer Murphy stated
that [Appellant] appeared confused with his instructions, and she
was unable to get into the starting position, even after removing
her shoes. Officer Murphy testified that [Appellant] started the
test before he instructed her to do so, and he observed more
indictors [sic] of impairment throughout the test where
[Appellant] took too many steps and turned improperly. During
the one[-]leg stand test, Officer Murphy indicated that [Appellant]
attempted to lift her foot off the ground twice and stated to Officer
Murphy that she could not do the test. According to Officer
Murphy, [Appellant] submitted to a portable breath test (PBT) and
after several error readings where [Appellant] was not adequately
blowing into the device, [Appellant] produced a sample, which
indicated a presence of alcohol. Based on Officer Murphy’s
observations, he opined that “she was too impaired to be behind
the wheel of a vehicle[] … []due to alcohol[.”] After handcuffing
[Appellant] and placing her under arrest in the rear of his patrol
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vehicle and informing her of her rights, Officer Murphy testified
that [Appellant] indicated she was getting a lawyer and he
transported [her] to City Hall for processing. At this time, Officer
Murphy indicated that he smelled a strong odor of alcohol coming
from [Appellant’s] person within his patrol vehicle. Officer Murphy
indicated that on a scale of zero to a hundred, he was “a hundred”
percent sure that [Appellant] was impaired at this time. Officer
Murphy’s testimony reflected that he has served as a police officer
since 2015; he confirmed he is familiar with the Motor Vehicle
Code and violations of the Crimes Code; and he indicated that he
has effected “between 10, 20, maybe a little more” DUI arrests in
his career.
[Appellant] also elected to testify during the non-jury trial.
[Appellant] testified that she was driving on the Ohio and
Pennsylvania turnpikes and intended to take the Greensburg exit;
however, she missed the exit and got off at a New Stanton exit
instead. [Appellant] testified that she was lost, very tired, and
very upset. [She] stated that she was driving the entire time, and
she denied consuming any alcoholic beverages. [Appellant]
denied performing the walk and turn test because she said she
had a blister from wearing her new high heels, and she allegedly
stepped on a rock when she exited her vehicle.
Procedural History
On August 10, 2021, a criminal complaint was filed against
[Appellant,] charging her with [DUI (count one)] and four related
summary offenses. On May 12, 2022, [Appellant] proceeded to a
non-jury trial before this court. During trial, [Appellant]
represented herself pro se. At the conclusion of the non-jury trial,
the court found [Appellant] guilty of counts one and three[.]1
[Appellant] was found not guilty of the remaining charges.
Sentencing was deferred pending a limited pre-sentence
investigation. Sentencing was initially scheduled for August 5,
2022; however, the matter was continued thirty (30) days on
motion of [Appellant]. Additionally, the court appointed Attorney
Kenneth Noga to represent [Appellant] in this matter. On
September 1, 2022, [Appellant] was sentenced at count one to
serve six (6) months[’] probation with thirty (30) days home
electronic monitoring and costs and fees. She was sentenced to
a twelve (12) month license suspension. At count [three,
Appellant] was ordered to pay a fine and costs and fees. The
Commonwealth moved to amend count one to an ungraded
misdemeanor and to strike the language of refusal. Additionally,
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[Appellant] was granted windows for her husband’s medical
needs.
1 [Appellant] was found guilty of count three, improper left
turn, in violation of 75 Pa.C.S.[] § 3331(b).
On September 7, 2022, [Appellant] filed a post-sentence motion
before this court. Prior to conducting a hearing on the matter, the
court denied the post-sentence motion by order of court dated
November 21, 2022. On November 22, 2022, [Appellant] filed a
timely notice of appeal to the Pennsylvania Superior Court. On
November 29, 2022, this court ordered [Appellant] to file a
[Pa.R.A.P. 1925(b)] concise statement of errors complained of on
appeal. On November 30, 2022, [Appellant] filed said statement.
Trial Court Opinion (“TCO”), 12/9/22, at 1-5 (citations to record and
unnecessary capitalization omitted). The trial court filed its Rule 1925(a)
opinion on December 9, 2022.
Herein, Appellant presents a single issue for our review: “Whether …
Appellant’s conviction is supported by the weight of the evidence when …
Appellant’s testimony presents an equally plausible explanation for her
behavior – being lost, tired, and upset – as opposed to intoxication?”
Appellant’s Brief at 2.
Our standard of review for a challenge to the weight of the evidence is
well-established:
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
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exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2021) (citation and
internal quotation marks omitted).
Instantly, Appellant claims that there were “two equally plausible
explanations for [her] behavior during and following her operation of a motor
vehicle – intoxication and being tired, lost, and upset.” Appellant’s Brief at 6.
She avers that the Commonwealth has failed to conclusively demonstrate her
behavior was “the result of intoxication and not her flustered nature;” thus,
the trial court’s verdict was against the weight of the evidence. Id. Appellant
argues:
For each indicator of “intoxication” observed by law enforcement,
being upset, lost, and extremely tired is a plausible cause of the
same symptom. Although Officer Murphy testified … Appellant’s
breath was positive for alcohol, she denied consuming any alcohol
that evening. Indeed, there is no evidence any bottles of alcohol
– empty or otherwise – were observed or seized from the vehicle.
In addition, there is no evidence … Appellant stopped anywhere to
consume alcohol.
Officer Murphy’s observations of … Appellant, including her
bloodshot eyes, slurred speech, and her failure to complete the
field sobriety tests to satisfaction are all equally explainable by
both alcohol intoxication and extreme tiredness in conjunction
with being upset. Indeed, even her refusal of chemical testing is
understandable given her being lost and upset prior to the motor
vehicle stop.
Id. at 10-11 (citations to record omitted). Noting that “a guilty verdict cannot
be based on surmise or conjecture[,]” id. at 11 (citing Commonwealth v.
Karkaria, 625 A.2d 1167, 1170 (Pa. 1993)), Appellant concludes:
When both theories are viewed together, it is difficult to determine
which is truth. As this difficulty appears to have been resolved in
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favor of the speculative conclusion that … Appellant was
intoxicated to such a degree that she could not operate the
vehicle[,] the guilty verdict is not supported by the weight of the
evidence. To accept one speculative conclusion and ignore the
other essential facts before the [c]ourt is a miscarriage of justice
that should shock the conscience of the Court.
Id. Accordingly, Appellant maintains that her conviction should be vacated.
We disagree. The trial court had the opportunity to hear and see the
evidence presented and to assess the credibility of the witnesses. TCO at 5.
It “afforded great weight to Officer Murphy’s testimony because he was a
credible witness.” Id. at 6. To the contrary, the trial court found Appellant’s
testimony to be “incredible and self-serving[,]” noting that her behavior during
the non-jury trial “was at times rude and disrespectful.” Id. It opined:
[T]he entirety of the evidence presented at trial convinces the
[c]ourt that the evidence was in support of the verdict rendered.
Through the duration of the non-jury trial, the [c]ourt considered
the evidence presented by the Commonwealth, namely the
testimony of Officer Murphy, who testified that he observed
[Appellant] commit multiple traffic infractions while driving her
vehicle. Officer Murphy’s testimony established that [Appellant]
displayed indicia of intoxication. Officer Murphy observed
[Appellant] with glassy, bloodshot eyes; slowed, slurred speech;
a strong odor of alcohol coming from [Appellant’s] person; a
positive breath sample on the PBT; and further indicators of
impairment while performing all three standardized field sobriety
tests. Based upon Officer Murphy’s training, experience, and
observations, Officer Murphy opined that on a scale of one to one
hundred, he was one hundred percent sure [Appellant] was
impaired and that she was too impaired to be behind the wheel
of a vehicle due to alcohol.
Id. at 5-6 (emphasis in original). The trial court disagreed with Appellant’s
contention that her inability to operate a motor vehicle in a safe manner may
have been due to her tiredness rather than the consumption of alcohol, and it
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found that the Commonwealth established proof of Appellant’s guilt beyond a
reasonable doubt. Id. at 6. Based on its review of the entire record, the trial
court did “not find that the verdict is inconsistent or so contrary to the
evidence as to shock this court’s sense of justice.” Id.
Based on our review of the record, we conclude that the trial court’s
decision is supported by the evidence, and we discern no abuse of discretion.
Appellant essentially asks us to reweigh the evidence in her favor, substituting
our judgment for that of the trial court, which we cannot do. See Houser,
supra. Accordingly, no relief is warranted on Appellant’s claim.
Nevertheless, in reviewing Appellant’s claim, we note the sentence
imposed by the trial court included a 12-month driver’s license suspension.
See Sentencing Order, 9/1/22, at 2. In imposing the suspension, the court
acted outside its authority; hence, that aspect of the sentence is illegal.
Although Appellant did not raise this issue on appeal, we may raise the issue
of sentence legality sua sponte. See Commonwealth v. Infante, 63 A.3d
358, 363 (Pa. Super. 2013). “If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction. An
illegal sentence must be vacated.” Id. (citation omitted).
As our Supreme Court has aptly explained,
Pennsylvania’s Motor Vehicle Code [(75 Pa.C.S. §§ 101-9805
(“Vehicle Code”))] sets forth a statutory scheme which requires
the executive branch of government to issue and regulate motor
vehicle licenses. The legislature has directed the Pennsylvania
Department of Transportation (an executive agency) to issue
driver’s licenses…, maintain records regarding driver’s licenses…,
accept surrender of a license…, and complete various other
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functions relative to driver’s licenses within Pennsylvania. In fact,
section 1531 of the Vehicle Code specifically states: “The
department shall administer an integrated system limited to the
authority granted to the department in this title for revocation and
suspension of operating privileges and for driver education,
testing and control….” 75 Pa.C.S. § 1531.
Within this statutory scheme, the courts play a relatively minor
role. Of course, the judiciary of this Commonwealth determines
whether an individual commits one of the offenses which may
have subsequent license implications. However, the court’s role
is limited to determining guilt. Thereafter, “license suspensions
are collateral civil consequences rather than criminal penalties.”
Commonwealth v. Duffey, … 639 A.2d 1174[, 1176] ([Pa.]
1994). Under our statutory scheme, actual imposition of a license
suspension “has been vested in an administrative agency over
which the criminal judge has no control and for which he has no
responsibility.” PennDOT v. McCafferty, … 758 A.2d 1155, 1162
([Pa.] 2000) [(]citing Duffey, … 639 A.2d at 1177[)].
Commonwealth v. Mockaitis, 834 A.2d 488, 500-01 (Pa. 2003) (citation
omitted).
Following Mockaitis, our legislature passed section 3804, which grants
the Pennsylvania Department of Transportation the exclusive authority to
impose license suspensions. See 75 Pa.C.S. § 3804(e)(1)(i) (“The
department shall suspend the operating privilege of an individual … upon
receiving a certified record of the individual’s conviction of … an offense under
section 3802 [relating to DUI offenses.]”).1
Based on the foregoing, it is clear that Pennsylvania law grants the
Department of Transportation, not the courts, the authority to suspend a
____________________________________________
1 We note that section 3804(e)(2)(iii) provides an exception to the license
suspension requirement for defendants convicted of a first offense under
section 3802(a). See 75 Pa.C.S. § 3804(e)(2)(iii).
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license. Therefore, we conclude that the trial court in this case lacked the
authority to suspend Appellant’s license and, in that respect, the sentence is
illegal. Accordingly, we vacate the license suspension aspects of the
September 1, 2022 sentence. We affirm all other aspects of her judgment of
sentence.
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2023
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