J-S65045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN THOMAS BARR
Appellant No. 1526 EDA 2015
Appeal from the Judgment of Sentence April 22, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002845-2014
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 05, 2016
Appellant John Thomas Barr appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas following his
stipulated bench trial convictions for driving under the influence (“DUI”),
general impairment and DUI, highest rate of alcohol.1 We affirm.
On April 22, 2015, the trial court conducted a stipulated bench trial in
which Appellant stipulated to the Commonwealth’s evidence, specifically the
affidavit of probable cause, the Pennsylvania Implied Consent Law (“DL-26”)
form, the chain of custody form, and the NMS2 report. The trial court
convicted Appellant of the aforementioned crimes based on the affidavit of
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1
75 Pa.C.S. § 3802(a) and (c), respectively.
2
NMS Labs is the company that tested Appellant’s blood for alcohol.
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probable cause that alleged Appellant operated a motor vehicle on
September 3, 2013, while he was visibly intoxicated, and lab reports taken
from blood withdrawn from Appellant less than an hour after he was driving,
which revealed a blood alcohol (“BAC”) of .243%. The trial court proceeded
to sentence Appellant to seventy-two (72) hours to six (6) months’
incarceration, plus a $1,000.00 fine for DUI, highest rate of alcohol.3
On May 21, 2015, Appellant timely filed a notice of appeal. On May
27, 2015, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely
complied on June 3, 2015.
Appellant raises the following issue for our review:
WHETHER THE EVIDENCE WAS SUFFICIENT FOR THE
TRIAL COURT TO CONVICT [APPELLANT] OF DRIVING
UNDER THE INFLUENCE OF ALCOHOL PURSUANT TO 75
[Pa.C.S §] 3802(C)?
Appellant’s Brief at 5.
Appellant argues that the Commonwealth failed to establish NMS Labs
was a facility authorized to withdraw blood pursuant to the Pennsylvania
Code and concludes there is insufficient evidence to convict him of DUI,
highest rate of alcohol. We disagree.
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3
Appellant’s DUI, general impairment conviction merged for sentencing
purposes.
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When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
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 [trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
Here, Appellant waived his claim by filing a deficient concise statement
of errors complained of on appeal.
Pennsylvania Rule of Appellate Procedure 1925 requires that an
appellant “concisely identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues[.]” Pa.R.A.P.
1925(b)(4)(ii). “When a court has to guess what issues an appellant is
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appealing, that is not enough for meaningful review.” Commonwealth v.
Allshouse, 969 A.2d 1236, 1239 (Pa.Super.2009) (failure to adequately
identify issues “impede[s]” trial court “in its preparation of a legal analysis
which is pertinent to those issues.”). Additionally, this Court has noted, “a
[c]oncise [s]tatement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent to no [c]oncise
[s]tatement at all.” Commonwealth v. Heggins, 809 A.2d 908, 911
(Pa.Super.2002), appeal denied, 827 A.2d 430 (Pa.2003) (citation omitted).
“In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant’s Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344
(Pa.Super.2013); see also Commonwealth v. Garang, 9 A.3d 237, 244
(Pa.Super.2010). Failure of the concise statement to identify what specific
elements the Commonwealth failed to prove at trial renders an appellant’s
sufficiency of the evidence claim waived for appellate review. Garland, 63
A.3d at 344.
The trial court convicted Appellant of DUI, general impairment, and
DUI, highest rate of alcohol, under the following statute:
§ 3802. Driving under influence of alcohol or
controlled substance
(a) General impairment.--
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(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.
(2) 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
alcohol concentration in the individual's blood or breath
is at least 0.08% but less than 0.10% within two hours
after the individual has driven, operated or been in
actual physical control of the movement of the vehicle.
* * *
(c) Highest rate of alcohol.--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 alcohol concentration in the
individual's blood or breath is 0.16% or higher within two
hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle.
75 Pa.C.S. § 3802.
Appellant’s concise statement states, in its entirety: “Whether the
evidence was insufficient to convict the Defendant?” This statement does
not identify with specificity what element of his crimes the Commonwealth
failed to establish. Thus, Appellant has waived his sufficiency claim.4 See
Garland, supra.
Judgment of sentence affirmed.
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4
Moreover, Appellant’s sufficiency claim would merit no relief because he
stipulated to the admission of the NMS report into evidence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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