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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANNY JERALD ALDERMAN
Appellant No. 830 WDA 2015
Appeal from the Judgment of Sentence April 30, 2015
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000642-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 09, 2016
Danny Jerald Alderman appeals pro se from the judgment of sentence
imposed on April 30, 2015, in the Court of Common Pleas of Somerset
County. On January 16, 2015, a jury convicted Alderman of driving under
the influence (“DUI”).1 That same day, the trial court, sitting without a jury,
convicted him of driving on roadways laned for traffic and careless driving.2
The court sentenced Alderman to a term of 12 months to five years in a
state correctional facility with respect to the Section 3802(c) DUI offense.3
On appeal, Alderman challenges the sufficiency of the evidence. After a
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1
75 Pa.C.S. § 3802(c).
2
75 Pa.C.S. §§ 3309(1) and 3714(a).
3
The court imposed statutory fines and costs for the remaining offenses.
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thorough review of the submissions by the parties, the certified record, and
relevant law, we affirm.
The trial court summarized the evidence presented at trial as follows:
The Commonwealth’s first witness, Carol Fochtman, testified on
direct examination that on April 26, 2014, she was driving on her
way home from work and encountered a vehicle in front of her
driving very slowly at approximately 10 to 15 miles an hour in a
35 miles per hour zone. She stated that the vehicle “swerved off
to the right on the berm just a little bit … it happened again, like
a couple seconds later it went off on the berm again to the
right.” She also testified “… I said it out loud to myself, I said,
‘Oh, my God, he’s going to hit that pole.’ And it was like a
couple of seconds later, I heard a crack and he hit the pole.”
Ms. Fochtman stated that she got out of her car and went over
to the driver who was out of the car and standing up. She
stated “I said, ‘Are you okay? He said, “Yes.” Ms. Fochtman
was then asked “What else did he say to you?” She answered
that he said “Please don’t call the cops.” She also testified that
she did not see him drink anything. In addition, she was able to
point to [Alderman] as the man she saw at the scene.
The Commonwealth also called Mary Devroy, another
driver who came upon the scene and stopped. She testified as
follows:
Driving out Route 160 towards Windber, we seen a car
that was off the road that hit a telephone pole. We pulled
off to the right. As I was walking across the road calling
911 to report an accident, [Alderman] was sitting on the
ground, went over to make sure he was okay, and I could
smell the alcohol. And I said: “were you drinking?” and
he did admit, yes, that he was drinking.[]
She also testified that she made the call to 911 at 5:54
P.M. and that she saw an open beer can in [Alderman]’s car.
Further, she stated that she smelled the alcohol on [Alderman]
before he climbed back into his car. In addition she said that
[Alderman] said “Please don’t call the police … I am going to go
to jail.” She testified that the State Police Trooper arrived at
6:20 and she left the scene at 6:21.
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Trooper Eric Bowser testified regarding his investigation of
the accident. He stated that he was dispatched at 6:00 P.M. and
arrived at the scene about 20 to 25 minutes after the accident
had occurred. He stated that he viewed the damage to the car
and the pole and that an ambulance was preparing to transport
the operator to the hospital. He gathered s[o]me additional
evidence, talked to Ms. Devroy, prepared a diagram of the
scene, travelled to Windber Hospital and spoke to [Alderman]
there, noting “a very strong odor of alcohol emanating from …
Mr. Alderman.” The Trooper also testified that [Alderman]’s
“eyes were glassy and bloodshot … he had slurred speech; he
was sleepy and groggy as well as crying…” [Alderman] also
stated that he had three or four beers in the morning. After
[Alderman] also failed a field sobriety test, identified as a
horizontal gaze nystagmus test, Trooper Bowser placed him
under arrest for driving under the influence at approximately
6:56 P.M. At 7:08 P.M. a blood sample was drawn by hospital
personnel for testing at the request of the Trooper. In addition,
Trooper Bowser testified that he had found one beer can in
[Alderman]’s vehicle at the scene.
Finally, the Commonwealth presented the testimony of
Karen Turcato, an employee in the laboratory at Windber
Hospital where [Alderman] was taken for treatment. She
testified concerning her role in the taking and chemical testing of
a sample of [Alderman]’s blood on the evening in question. She
reviewed the procedure she employed and the test result which
showed a blood alcohol of .243%. The test results were
admitted as Commonwealth’s Exhibit “A” without objection. She
verified that the time of the blood draw at 7:08 P.M. on April 26,
2014. After the Commonwealth rested, we denied a Defense
motion for Judgment of Acquittal.
[Alderman] presented testimony from his mother and also
took the stand. Sherri Miller testified that [Alderman] had spent
the night at her home and spent time with his daughter there.
She said that [Alderman] wanted to take the child fishing but the
child wouldn’t go unless her grandfather went along. She stated
that he left the house and was upset regarding the failed fishing
outing. In addition she stated that [Alderman] had nothing
alcoholic to drink at her home. On cross examination she stated
that [Alderman] was gone 30-45 minutes before she received a
call from him regarding his accident.
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[Alderman] testified regarding his plans to take his
daughter fishing on his day off and the issue that arose which
frustrated those plans. He stated that he began to feel
“overwhelmed” by the circumstances and wanted to avoid
getting frustrated in the child’s presence and chose to leave the
house. He stated that he drove to a gas station, got gas in his
vehicle, purchased some cigarettes, sat in his vehicle and
smoked a cigarette and left the area. He explained that the
vehicle was experiencing some problems with the alignment and
the vehicle was “pulling” to the right. He stated that as he
pulled out, his phone slid off the seat, he picked it up and was
looking at [it] when the vehicle “just pulled off the road. I
wasn’t paying attention and it hit the pole.”
He stated that he had not been drinking at home, was not
drinking at the gas station, and had no alcohol in his system
when he hit the pole. He testified that there was alcohol in the
car “some beer in the back seat … I had a fifth of Jim Beam
under the passenger seat.” He also testified that he “opened the
beer – or I washed my mouth, spit it out and drank the beer. I
opened the fifth and figured I would drink as much of it as I can
until the police got there.”
On cross-examination, [Alderman] was asked
“So you’re willing – you were willing to say anything to
get home at that time?”
That inquiry produced the following exchange:
“A. After I realized I wasn’t going to jail that day, I mean
yeah. I had alcohol on my breath. I – I can’t deny it. I
was looking for what is the most plausible explanation –
Q. Kind of like you’re doing today. You’re looking for the
most plausible explanation –
A. That is your opinion. I can’t argue with you.
Q. So you didn’t – you lied to the officer when you said
you had three or four drinks that morning?
A. Yeah.[”]
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Trial Court Opinion, 7/2/2015, at 2-6 (record citations omitted).
As noted above, a one-day jury was held on January 16, 2015. The
jury convicted Alderman of DUI, a first-degree misdemeanor. Following the
jury trial, the trial court convicted him of the summary offenses of driving on
roadways laned for traffic and careless driving. As noted above, on April 30,
2015, the court sentenced Alderman to a term of 12 months to five years in
a state correctional facility with respect to the Section 3802(c) DUI offense.
Following the sentencing hearing, by separate order, the court granted
Alderman’s oral motion to dismiss his appointed counsel and to proceed to
represent himself on appeal.
On May 6, 2015, Alderman filed a motion for reconsideration seeking a
reduction in the maximum date of his incarceration. However, on May 22,
2015, before argument could be scheduled regarding the motion, Alderman
filed a notice of appeal. On June 2, 2015, the trial court entered an order,
denying his post-sentence motion. On June 3, 2015, the trial court ordered
Alderman to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Alderman filed a concise statement on June
17, 2015. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
July 2, 2015.
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In Alderman’s sole argument,4 he claims there was insufficient
evidence to support his conviction for DUI under Section 3802(c).
Specifically, he states expert testimony was required to validate the blood
alcohol content (“BAC”) testing because a supernatant example was used as
the test sample of his results and therefore, evidence of a conversion factor
to calculate the whole blood alcohol content of the original whole blood
sample from the non-whole blood result was necessary. Alderman’s Brief at
9-13. Moreover, he states that while the Commonwealth may have
mentioned “conversion” while questioning Karen Turcato, the Windber
Medical Center laboratory employee, it did not present any evidence of the
conversion process. Id. at 11. He asserts:
This makes the result of the test legally insufficient to support a
conviction for [Section] 3802(c), Merely stating this is the whole
blood conversion, without explanation or conversion factors
used, is tantamount to simply stating that someone is an expert,
but not showing you their credentials.
Id. In support of his argument, he relies on Commonwealth v. Haight, 50
A.3d 137 (Pa. Super. 2012), and Commonwealth v. Karns, 50 A.3d 158
(Pa. Super. 2012).
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
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4
We note that while Alderman lists two issues in his statement of questions
involved, he addresses them together in his argument.
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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. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011),
quoting Commonwealth v. Brooks, 7 A.3d 852, 856–57 (Pa. Super.
2010).
However, before we may address the merits of this issue, we must
determine whether Alderman properly preserved the claim. In his concise
statement, as ordered by the court to file, Alderman identified the following
issues he wished to raise on appeal:
1) Whether there was sufficient evidence presented to the Jury
for them to return a verdict that [Alderman] was driving with a
BAC of .16 or higher?
2) Whether the verdict was against the weight of the evidence
presented to uphold a verdict that [Alderman] was at the time of
the operation of the vehicle , operating a vehicle with a BAC[] of
.16% or higher?
Concise Statement of Matters Complained on Appeal, 6/17/2015, at 2.
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The trial court found Alderman’s issues on appeal could be waived,
determining his concise statement failed to specify any specific errors the
court made during trial. See Trial Court Opinion, 7/2/2015, at 6. The trial
court stated, “We view these statements as the type of ‘boilerplate’
responses which may not require a response under Rule 1925.” Id.
Nevertheless, the court did address the sufficiency and weight claims
generally but did not specifically analyze the sufficiency of expert evidence
regarding the conversion process for the BAC results. See id. at 2-8.
Rule 1925 requires 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 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.”).
Ordinarily, a defendant waives a sufficiency claim where he fails to
indicate with specificity which element of a crime the Commonwealth failed
to prove. See Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013) (“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.”).
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The trial court convicted Alderman of DUI, highest rate of alcohol,
under the following statute:
§ 3802. Driving under influence of alcohol or controlled
substance
…
(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(c).
Based on the lack of specificity regarding what element of the crime
the Commonwealth failed to establish, we are compelled to conclude
Alderman waived his claim by filing a deficient concise statement.5
Judgment of sentence affirmed.
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5
Moreover, the test results were admitted without objection. See N.T.,
1/16/2015, at 47. Additionally, prior to sentencing, Alderman’s counsel
made an oral motion for arrest of judgment, relying on Commonwealth v.
Kostra, 502 A.2d 1287 (Pa. Super. 1985), and stating that Kostra
discusses “blood alcohol conte[n]t, lay testimony and expert testimony. We
believe there was no expert testimony presented and that that would
disqualify essentially the Jury’s lay opinion of what his blood alcohol could
have been or would have been at the time.” N.T., 4/30/2015, at 4-5. The
court denied the motion without prejudice to raise on appeal. However, as
evidenced above, Alderman did not set forth the sufficiency argument with
any specificity as required by the appellate rules.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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