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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK CHRISTOPHER HESS
Appellant No. 1330 MDA 2014
Appeal from the Judgment of Sentence February 11, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000401-2013
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 27, 2015
Appellant, Mark Christopher Hess, appeals from the judgment of
sentence entered by the Lebanon County Court of Common Pleas after his
conviction of two counts of driving under the influence (“DUI”) following a
bench trial. He challenges the admissibility of evidence and the sufficiency
and weight of the evidence. We affirm.
On December 30, 2012, Hess was driving on State Route 72 when he
sped past Pennsylvania State Police (“PSP”) Trooper Kara Sadusky at a pace
of 68 miles-per-hour in a 45 miles-per-hour zone. Trooper Sadusky
conducted a traffic stop and while reviewing Hess’s identification documents,
she noticed a strong odor of alcohol. She also observed that he had
bloodshot and glassy eyes, slurred speech, and acted sluggish. She
administered a field sobriety test. Hess failed. Trooper John Huffstutler
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transported Hess to the State Police Jonestown Barracks, where Trooper
Christopher O’Brien administered a chemical breath test using the
Datamaster DMT device. The test results showed that Hess had a blood
alcohol level (“BAC”) of .091% and .095%. He was charged with one count
DUI – Second Offense pursuant to 75 Pa.C.S.A. § 3802(a)(2); one count DUI
– General Impairment – Second Offense, pursuant to 75 Pa.C.S.A. §
3802(a)(1); a speeding violation, and other driving offenses.
At Hess’s bench trial, Trooper Sadusky testified regarding the
circumstances leading up to his arrest. Trooper Huffstutler testified that
Hess confessed to him while at the police barracks that he had had four or
five beers earlier that day. Trooper O’Brien testified at length regarding his
training on the Datamaster DMT1 and the administration of Hess’s breath
test. Corporal Edward Burns, the trooper in charge of breathalyzer device
maintenance, testified regarding the procedures he follows in calibrating the
Datamaster DMT annually and in checking its accuracy on a monthly basis,
stating that his maintenance regimen complied with the requirements set
forth in 75 Pa.C.S.A. § 1547(c)(1). The trial court admitted into evidence the
certificates showing that the calibration and accuracy tests had been
performed as required. Hess did not object to the admission of those
certificates. Prior to the admission of Hess’s BAC test results, his attorney
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1
The court took judicial notice that the Datamaster DMT is an approved BAC
testing device. Hess did not object.
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lodged a general foundational objection, stating that the Commonwealth’s
witnesses had not followed the “policies and protocol as they have a
responsibility so to do as to codes, as to admissibility of breath testing
results.” Notes of Testimony, Trial, 2/11/14, at 146. The court overruled
the objection and admitted Hess’s BAC test results into evidence.
The court found Hess guilty of the DUI and speeding offenses, and
sentenced him to a term of five days’ to six months’ incarceration. After the
denial of his post sentence motions, he timely appealed to this Court.
Hess raises the following issues for our review.
a. Did the Commonwealth, as a matter of law, provide
insufficient evidence to meet its burden of proof with
regard to Count I, 75 Pa.C.S.A. § 3802(a)(2) where they
failed to comply with 67 Pa.Code 77.24(d) and 67 Pa.Code
§ 77.24(e) in that the Commonwealth failed to present any
evidence concerning the manufacturer of the simulator
solution; what independent laboratory certified the solution
based on gas chromatographic analysis; or who the
manufacturer of the ampoules was; or what generally
accepted scientific methods were used to insure that the
ampoules conformed to manufacturer specifications.[2]
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2
Simulator solution is placed in ampoules which are used to test the
accuracy of a breathalyzer device. The solution is defined as:
An aqueous standard ethanol solution which, when equilibrated
with air in a breath simulator device, produces an air-alcohol
mixture of a predetermined concentration that is designed to
give a specific reading on breath test equipment and can be used
to calibrate and verify the accuracy of Type A alcohol breath test
equipment.
77 Pa.Code § 77.22.
(Footnote Continued Next Page)
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b. Whether the trial court’s verdict of guilt as to 75
Pa.C.S.A. § 3802(a)(1) – DUI: General Impairment was
against the weight of the evidence as the Trooper was
unable to link any observations of unsafe driving to Hess
and the Commonwealth’s evidence did not establish that
Hess’ mental and physical faculties were impaired such
that he could not safely operate a motor vehicle.
Appellant’s Brief at 1.
Hess first avers that the court should not have admitted his BAC test
results into evidence because the Commonwealth made “no reference” to
the manufacturer or certification of the simulator solution ampoules used to
test the PSP’s breathalyzer device and, thus, “failed to comply with 67 Pa.
Code § 77.24(d) and (e).”3 Appellant’s Brief at 20, 23. Although his
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(Footnote Continued)
3
67 Pa.Code 77.24(d) and (e) provide:
(d) Simulator solution certification. The manufacturer of
simulator solution shall certify to the test user that its simulator
solution is of the proper concentration to produce the intended
results when used for accuracy inspection tests or for calibrating
breath test devices. This certification shall be based on gas
chromatographic analysis by a laboratory independent of the
manufacturer.
(e) Ampoule certification. The manufacturer of ampoules utilized
in Type A breath testing devices shall certify to the user that its
ampoules will produce the intended results when used for actual
breath tests, accuracy inspection tests or for calibrating breath
test devices. The certification shall be based on laboratory
testing conducted by a laboratory independent of the
manufacturer. The laboratory testing shall employ generally
accepted scientific methods sufficient to insure that the
ampoules conform to manufacturer specification.
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introductory sentence of this issue is framed in his “Questions Presented” as
a challenge to the sufficiency of the evidence, Hess does not discuss the
elements of the DUI offenses or any authority pertaining to review of
sufficiency of the evidence. Rather, he argues only that the Commonwealth
should have introduced evidence concerning the manufacturer’s certification
of the simulator solution ampoules before the court admitted evidence of his
BAC levels.
It is well-settled that evidence is admitted at trial at the discretion of
the trial court. See Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa.
2009). No evidentiary ruling will be reversed absent a showing that the court
clearly abused that discretion. See id.
Hess concedes that this Court’s decision in Commonwealth v. Little,
512 A.2d 674 (Pa. Super. 1986), a case in which the appellant raised the
identical issue raised here, provides that “the Commonwealth does not bear
the burden of producing the certificate for the simulator solution or
ampoules at trial.” Appellant’s Brief at 23. He also acknowledges that there
is a “rebuttable presumption that placing the simulator solution on the
market, after independent testing, constitutes certification that the products
will operate as intended.” Id. at 22 (citing Little).
Hess is correct. The Commonwealth did not have the burden to
introduce at trial the manufacturer’s certifications for the simulator solution
or ampoules. In fact, the Little court quite pointedly stated: “Absent some
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suggestion that the products were in fact defective, the Commonwealth was
under no burden to show certification of the manufacturer's product.” Id. at
678. See also Commonwealth v. Starr, 739 A.2d 191, 197 (Pa. Super.
1999) (observing that Little established “a rebuttal presumption that placing
the solution or ampoules on the market, after independent testing,
constitutes certification that the products will operate as intended.”). Our
Supreme Court has agreed, noting that
Such a conclusion is consistent with one of the purposes of 75
Pa.C.S. § 1547 which is to facilitate the acquisition of chemical
testing under scientifically accepted standards, and to permit
their utilization in legal proceedings so that intoxicated drivers
are removed from the roads of the Commonwealth. When
applied to manufacturer’s certificates, the presumption of
accuracy can be justified in light of the fact that the
Commonwealth has no access to the records, test results, or
laboratories used to prepare the ampoules and, in light of the
fact that when the preparation is done according to scientifically
accepted practices, the accuracy of the sample is virtually
assured.
Commonwealth v. Brosnick, 607 A.2d 725, 729 (Pa. 1992).
Our review of the trial transcript indicates Hess neither questioned the
quality of the solution or ampoules used in the Datamaster DMT, nor
requested information regarding the manufacturer or testing of the solution.
As noted above, the burden was on Hess to raise a defect that would
necessitate the admission of the manufacturer’s certifications and related
evidence. This he did not do. Accordingly, the trial court did not abuse its
discretion in admitting the BAC test results.
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In his next issue, Hess challenges the weight of the evidence by
asserting that Trooper Sadusky’s “opinion that [he] was incapable of safe
driving was based on mere subjective factors that do not scientifically
correlate to levels of impairment.” Appellant’s Brief at 26. That is the sum
and substance of his weight argument before he concludes, “the finding of
guilt was so contrary to the evidence presented at trial as to shock one’s
sense of justice.” Id. Hess utterly fails to develop his weight challenge with
proper reference to the record, citation to authority, and meaningful
analysis. Accordingly, his weight challenge is waived. See Pa.R.A.P. 2119,
and Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super.2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (finding issue waived because the
appellant “cited no legal authorities nor developed any meaningful
analysis”).
Hess also argues, within his weight claim, that the Commonwealth
“failed to prove … [that] he [had] consumed ethanol to such a degree that it
substantially impaired his ability as to the essential acts of safe driving.”
Appellant’s Brief at 24 (citing 75 Pa.C.S.A. § 3802(a)(1)). He recites the
elements that must be proven to “sustain a conviction of the common law
theory of alcohol-related DUI” as set forth in Commonwealth v. Kowalek,
647 A.2d 948 (Pa. Super. 1994), before summarily concluding that the
Commonwealth “relied entirely on speculative, non-specific, circumstantial
evidence to support its accusation that Hess had imbibed alcohol.”
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Appellant’s Brief at 25 and n.4. This argument is a challenge to the
sufficiency, not the weight, of the evidence, and it is without merit.
Our standard of review of a sufficiency challenge 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 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. Valentine, 101 A.3d 801, 805 (Pa. Super. 2014)
(citation omitted).
The DUI statute provides, in relevant part, that “[a]n 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). As
noted above, the crime may be proven by means of wholly circumstantial
evidence. Valentine, 101 A.3d at 805.
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There is no doubt that in addition to Trooper Sandusky’s testimony
regarding Hess’s physical demeanor, other record evidence indicated that
Hess had been driving while impaired by alcohol. That evidence included (1)
testimony from Trooper Sandusky regarding the radar reading showing him
driving at 23 miles per hour over the speed limit; (2) the field sobriety test
result; (3) the BAC breathalyzer test result; and (4) Hess’s confession to
Trooper Huffstutler that he had consumed four or five beers on the day he
was stopped by Trooper Sandusky.
In light of our standard of review, we conclude that the evidence was
sufficient to support the court’s conclusion that Hess had “imbibe[ed] a
sufficient amount of alcohol such that [he was] rendered incapable of safely
driving.” 75 Pa.C.S.A. § 3802(a)(1). Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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