J-A30044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JIMMY AARON,
Appellant No. 664 EDA 2014
Appeal from the Judgment of Sentence January 16, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008978-2013
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 04, 2015
Appellant, Jimmy Aaron, appeals from his bench trial conviction of
driving under the influence (general impairment), 75 Pa.C.S.A.
§ 3802(a)(1).1 He challenges the sufficiency and the weight of the evidence.
We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
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).
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On January 29, 2012, at approximately 1:32 a.m., Philadelphia Police
Officer Christopher Ward pulled Appellant over on the 2700 block of
Kensington Avenue for driving without headlights on. On approaching and
talking with Appellant, the officer observed his slurred speech, bloodshot
eyes and the odor of alcohol. Officer Ward arrested Appellant for driving
under the influence of alcohol.2
After a bench trial, the court convicted Appellant of driving under the
influence in violation of 75 Pa.C.S.A. § 3802(a)(1), but acquitted him of a
violation of section 3802(b), operating a vehicle with a blood or breath
alcohol level of at least 0.10% but less than 0.16% within two hours after
the individual has driven or been in control of a vehicle.
On January 16, 2014, the court imposed the guideline sentence for
second offenders of a five day term of incarceration plus license suspension
of twelve months, mandatory highway safety classes, and ignition interlock
for one year, plus fines and costs. The court denied Appellant’s post-
sentence motion challenging the sufficiency and the weight of the evidence,
on February 27, 2014. This timely appeal followed.3
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2
Later, after he consented to breathalyzer tests, Appellant’s blood alcohol
content (BAC) tested at .116% at 3:40 a.m., and a minute later at .119%,
at 3:41 a.m.
3
Appellant filed a statement of errors on April 29, 2014. See Pa.R.A.P.
1925(b). The trial court filed its opinion on May 14, 2014, referencing its
previous opinion dated March 31, 2014 and filed on April 16, 2014, stating
(Footnote Continued Next Page)
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Appellant presents two questions for our review:
I. Was the evidence presented at the trial of the
Appellant legally sufficient to sustain his conviction of driving
while under the influence of alcohol, under 75 Pa.C.S. § 3802(a)
(1) [general impairment] where the Commonwealth failed to
prove beyond a reasonable doubt that Appellant had imbibed a
quantity of alcohol that rendered him incapable of safely
operating a vehicle?
II. Taking into consideration all of the evidence
presented at trial was the Appellant’s conviction at trial for
driving while under the influence of alcohol, under 75 Pa.C.S.
§ 3802(a)(1) [general impairment] against the weight of the
evidence?
(Appellant’s Brief, at 9).
In his first question, Appellant challenges the sufficiency of the
evidence. He argues generally that the Commonwealth failed to prove
beyond a reasonable doubt that he was incapable of safely operating a
motor vehicle due to mental or physical impairment from consumption of
alcohol. (See id. at 16). Specifically, he argues that expert testimony was
required; he also claims that the mere odor of alcohol, or blood shot eyes,
alone, or slurred speech, failed to prove his diminished capacity to drive.
(See id. at 17-43). We disagree.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
_______________________
(Footnote Continued)
its reasons for denying Appellant’s motion to stay sentence under
Pennsylvania Rule of Appellate Procedure 1762(g). See Pa.R.A.P. 1925(a).
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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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, we may not
substitute our judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
So long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt, his
convictions will be upheld. Any doubt about the defendant’s
guilt is 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.
Commonwealth v. McKellick, 24 A.3d 982, 990 (Pa. Super. 2011), appeal
denied, 34 A.3d 828 (Pa. 2011) (citation omitted).
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 and the two hour time limit for measuring blood
alcohol level does not apply. Blood alcohol level is admissible in
a subsection 3801(a)(1) case only insofar as it is relevant to and
probative of the accused’s ability to drive safely at the time he or
she was driving. The weight to be assigned these various types
of evidence presents a question for the fact-finder, who may rely
on his or her 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-not on a particular
blood alcohol level.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).
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Thus, under our standard of review, and pertinent caselaw, it is
beyond serious dispute that the Commonwealth presented sufficient
evidence to support Appellant’s conviction. Appellant misconceives our
standard of review under which we view the evidence presented in the light
most favorable to the Commonwealth as verdict winner. Assessment of the
weight of the evidence was the province of the trial court as fact-finder. See
McKellick, supra at 990. Accordingly, Appellant’s sufficiency claim fails.
Secondly, Appellant challenges the weight of the evidence. (See
Appellant’s Brief, at 44). This claim is waived. Aside from an ill-conceived
attempt to incorporate his sufficiency argument by reference, and a
generalized invocation of due process supported by a single citation,
Appellant fails to develop any argument in support of his claim.4 (See id.).
Mere blanket assertions fail to develop an argument, resulting in a waiver of
the asserted claim. See Commonwealth v. McMullen, 745 A.2d 683,
689 (Pa. Super. 2000), appeal denied, 761 A.2d 549 (Pa. 2000).
Moreover, under applicable legal principles, the claim would not merit
relief.
This Court has long recognized that a true weight of the
evidence challenge concedes that sufficient evidence exists to
sustain the verdict but questions which evidence is to be
believed. Where the trial court has ruled on a weight claim, an
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4
Palko v. Connecticut, 302 U.S. 319, 327 (1937). We note that the
United States Supreme Court overruled Palko in Benton v. Maryland, 395
U.S. 784, 794 (1969).
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appellate court’s role is not to consider the underlying question
of whether the verdict is against the weight of the evidence.
Rather, our review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
* * *
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.
In this regard, [t]he evidence must be so tenuous, vague
and uncertain that the verdict shocks the conscience of the
court.
Commonwealth v. Thompson, 2014 WL 6948150, at *10 (Pa. Super. filed
December 10, 2014) (citations, quotation marks, and internal punctuation
omitted).
Here, on independent review, the verdict does not shock the
conscience of this Court, and we discern no palpable abuse of discretion in
the trial court’s ruling denying the weight claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
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