Com. v. McKinney, T.

J-S40038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYRONE L. MCKINNEY JR. :
:
Appellant : No. 1028 EDA 2022
Appeal from the Judgment of Sentence Entered March 18, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000025-2021
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 27, 2023
Appellant, Tyrone L. McKinney, Jr., appeals from the judgment of
sentence entered in the Monroe County Court of Common Pleas, following his
bench trial conviction for driving under the influence—general
impairment/incapable of safely driving (“DUI”).1 We affirm.
The relevant facts and procedural history of this case are as follows. In
the early morning hours on January 19, 2021, Officer Ralphie Ortega
conducted a traffic stop of Appellant’s vehicle because the brake light was
inoperable. Appellant was driving the vehicle. When he approached the car,
Officer Ortega detected a strong odor of marijuana and alcohol, and he
observed Appellant making furtive movements. When Appellant failed to
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1 75 Pa.C.S.A. § 3802(a)(1).
J-S40038-22
comply with Officer Ortega’s order to stop moving, Officer Ortega asked
Appellant to step out of the vehicle. As Appellant exited the vehicle, Officer
Ortega observed that Appellant moved sluggishly and reacted slowly to his
directions. In closer proximity to Appellant, Officer Ortega noted that
Appellant had bloodshot and glassy eyes and the smell of alcohol was
emanating from Appellant’s breath. Appellant told Officer Ortega that he was
coming from a bar and Officer Ortega found two open cups with alcoholic
beverages in the center console of Appellant’s vehicle.
Officer Ortega further noted that Appellant exhibited signs of
impairment during field sobriety tests. Specifically, although Appellant was
able to complete the “stand on one leg” test, he missed a few steps and
provided an improper turn during the “walk-and-turn” test. Appellant refused
to submit to a blood test. Based on his years of experience and the signs of
impairment he observed, Officer Ortega concluded that Appellant was
impaired and incapable of safely operating a vehicle.
On January 4, 2022, following a bench trial, the trial court convicted
Appellant of DUI. The court sentenced Appellant on March 18, 2022, to not
less than five days nor more than six months’ incarceration, with time credit
of 28 days for completing inpatient rehabilitation. On April 18, 2022, Appellant
filed a timely notice of appeal. That same day, the court ordered Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
and Appellant timely complied on May 9, 2022.
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Appellant now raises two issues for our review:
Did the trial court abuse its discretion by finding Appellant
guilty as to [DUI]-General Impairment, were there was
sufficient evidence to convict [Appellant] of the crime, in
that the Commonwealth failed to prove an element of the
crime that Appellant was rendered incapable of safely
driving when Appellant was stopped for an inoperable brake
light and not a driving violation and there was no evidence
of bad driving?
Did the trial court abuse its discretion by finding Appellant
guilty as to [DUI]-General Impairment, in that it was against
the weight of the evidence to convict [Appellant] of the
crime, in that the Commonwealth failed to prove an element
of the crime that [Appellant] was rendered incapable of
safely driving when [Appellant] was stopped for an
inoperable brake light and not a driving violation and there
was no evidence of bad driving?
(Appellant’s Brief at 6).
In his issues combined, Appellant argues that the evidence presented
did not establish beyond a reasonable doubt that he was unable to safely drive
his vehicle. Appellant emphasizes that Officer Ortega conducted a traffic stop
because Appellant’s brake light was inoperable, not because Appellant drove
erratically or haphazardly. Appellant claims that when Officer Ortega initiated
his lights, Appellant pulled over right away and complied with Officer Ortega’s
orders. Appellant states that he successfully completed the “stand on one leg”
test, demonstrating his control over his mental faculties at the time he was
pulled over. Appellant further argues that the fact that he missed a few steps
and failed to complete a turn during the “walk and turn” test does not establish
that he was incapable of operating a vehicle safely. For these reasons,
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Appellant contends that the Commonwealth failed to present sufficient
evidence to demonstrate he was unable to safely operate his vehicle to sustain
his DUI conviction.
Appellant further argues that Officer Ortega’s testimony that Appellant
was impaired such that he was unable to operate his vehicle safely is not
credible based on the circumstances surrounding the traffic stop. Appellant
asserts that Officer Ortega acknowledged that Appellant did not demonstrate
common signs of impairment such as erratic driving, slurred speech, or the
inability to stand. Appellant notes that Officer Ortega confirmed that Appellant
successfully completed one of the field sobriety tests he administered.
Appellant further argues that the “walk-and-turn” test is approximately 68%
accurate, and Appellant’s failure to perform that test successfully is not
enough on its own to conclude Appellant was impaired. Appellant concludes
that the Commonwealth failed to present sufficient evidence to sustain his DUI
conviction, that the verdict was against the weight of the evidence, and this
Court must grant relief. We disagree.
When examining a challenge to the sufficiency of the evidence, our
standard of review is well settled:
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
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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.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).
Additionally:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted).
The Motor Vehicle Code defines the offense of DUI—general impairment
as follows:
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§ 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.
75 Pa.C.S.A. § 3802(a)(1). “Subsection (a)(1) is a general provision and
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.” Commonwealth
v. Loeper, 541 Pa. 393, 402-03, 663 A.2d 669, 673-74 (1995). Further:
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….
Commonwealth v. Segida, 604 Pa. 103, 115-16, 985 A.2d 871, 879 (2009).
Additionally, “[e]vidence of erratic driving is not a necessary precursor
to a finding of guilt under the relevant statute.” Commonwealth. v. Mobley,
14 A.3d 887, 890 (Pa.Super. 2011). “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
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him incapable of safe driving, notwithstanding the absence of evidence of
erratic or unsafe driving.” Commonwealth v. Palmer, 751 A.2d 223(Pa.Super. 2000).
Instantly, the trial court found that the Commonwealth presented
sufficient evidence to demonstrate that Appellant was impaired such that he
was incapable of operating a vehicle safely. Officer Ortega testified that he
observed several signs of impairment. Specifically, he noted that Appellant
appeared sluggish, had bloodshot and glassy eyes, and was slow to respond
to his directions. Further, Officer Ortega testified that Appellant stated that
he was coming from a bar, had two open cups of alcoholic beverages in his
car, and a strong odor of alcohol was emanating from Appellant’s breath.
Appellant was also unable to successfully complete the “walk and turn” field
sobriety test. Viewed in the light most favorable to the Commonwealth as
verdict winner, we discern no error in the court’s determination that there was
sufficient evidence to support Appellant’s DUI conviction. See Segida,
supra; Jones, supra; Palmer, supra.Regarding Appellant’s challenge to the weight of the evidence, we note
that Appellant did not raise his weight claim before the trial court orally or by
written motion prior to sentencing or in a post-sentence motion. Accordingly,
Appellant has waived this issue. See Pa.R.Crim.P. 607 (stating: “A claim that
the verdict was against the weight of the evidence shall be raised with the trial
judge in a motion for a new trial: (1) orally, on the record, at any time before
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sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion”). See also Commonwealth v. Cox, 231 A.3d 1011,
1018 (Pa.Super. 2020) (reiterating: “An appellant’s failure to avail himself of
any of the prescribed methods for presenting a weight of the evidence issue
to the trial court constitutes waiver of that claim”).
Even if Appellant had properly preserved his weight claim, Appellant’s
argument would not merit relief. The court credited Officer Ortega’s testimony
that Appellant was impaired while operating his vehicle. Although Appellant
was able to successfully complete the “stand on one leg” test, Officer Ortega
noted several other indica of intoxication such as a strong odor of alcohol
emanating from Appellant, bloodshot, glassy eyes, slow and sluggish reactions
and the inability to complete the “walk and turn” test. Officer Ortega also
testified to surrounding circumstances that indicated that Appellant had
recently consumed alcohol such as Appellant’s statement that he was coming
from a bar and the presence of two open cups in his vehicle containing
alcoholic beverages. The record supports the court’s finding, and we see no
reason to disturb the court’s credibility determination. See Champney,
supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2023
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