J-A32002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRUONG V. DUONG
Appellant No. 788 EDA 2014
Appeal from the Judgment of Sentence February 28, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014151-2012
MC-51-CR-0019063-2012
BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 06, 2016
Appellant, Truong V. Duong, appeals from the judgment of sentence
entered February 28, 2014, by the Honorable Anne Marie B. Coyle, Court of
Common Pleas of Philadelphia County, following his conviction of Driving
Under the Influence (DUI), 75 Pa.C.S.A. 3802(a)(1) and Criminal Mischief,
18 Pa.C.S.A. § 3304. This case comes back to us on remand from our
Supreme Court with directions for us to consider this matter on the merits.
We affirm.
At 11 p.m. on May 9, 2012, Philadelphia Police Officer Gretchen
Flanagan was on routine patrol when she was flagged down by two
witnesses who reported that a vehicle accident had occurred. The driver of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A32002-14
the vehicle, Mamadou Bah, informed the officer that he was pulling into a
parking space in the area of the 6500 block of Dicks Street when a white
Chevrolet van driven by Duong struck Bah’s occupied vehicle. Duong then
fled the scene of the accident. The two witnesses to the accident followed
Duong to a residence located at 6510 Dicks Street.
The two witnesses accompanied Officer Flanagan to 6510 Dicks Street
where she observed a white van parked on the street outside of the
residence. After Officer Flanagan instructed Duong, who was sitting on the
couch, to produce his license, registration, and proof of insurance, he
attempted to stand up two or three times and was unable to do so. When
Duong finally approached the officer, she observed that Duong had
extremely bloodshot eyes, and was staggering on his feet. Officer Flanagan
also noticed Duong was slurring his speech and had a strong odor of alcohol
emanating from his breath and person. Based upon Officer Flanagan’s
training and experience, she opined that Duong was “extremely, extremely
intoxicated and had no business being behind a wheel of a car.” N.T., Bench
Trial, 2/28/14 at 14. After Officer Flanagan requested that Duong
accompany her to the scene of the vehicle accident, Bah identified Duong as
the driver of the white van that struck his vehicle. The two eyewitnesses also
identified Duong as the driver of the white van.
Duong was subsequently charged with DUI and Criminal Mischief.
Following a bench trial, the trial court convicted Duong of both charges. On
-2-
J-A32002-14
February 28, 2014, the trial court sentenced Duong to serve six months’
probation.
Duong appealed and this panel affirmed Duong’s judgment of
sentence, finding Duong’s issues raised on appeal waived for failure to
include in the certified record the notes of appeal of the trial. See
Commonwealth v. Duong, No. 788 EDA 2014 (Pa. Super., filed March 27
2015) (unpublished memorandum). After entry of our decision, Duong filed
an application for correction of the original record and an application for
reconsideration. The panel granted the former, but denied the latter. Duong
filed a petition for allowance of appeal to our Supreme Court, which was
granted. The Supreme Court vacated our decision and remanded with
instructions for us to consider this matter on the merits. See
Commonwealth v. Duong, 355 EAL 2015 (Pa., filed 2/29/16) (Order).
On appeal, Duong raises the following issues for our review:
Did the [t]rial [c]ourt below commit reversible error of law when
it (1) found the Appellant Guilty of violating 75 Pa.C.S.A.
3802(a)(1) based on insufficient evidence and (2) Admitted the
results of a chemical breath test without the proper foundation in
violation 75 Pa.C.S.A. 3802?
Appellant’s Brief at 6 (unnumbered).
The following standard governs our review of a challenge to the
sufficiency of the evidence:
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. Evidence
will be deemed sufficient to support the verdict when it
-3-
J-A32002-14
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. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. 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. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted). The factfinder, 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. See Commonwealth v. Valentine, 101 A.3d
801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).
Furthermore, the Commonwealth may sustain its burden by means of wholly
circumstantial evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877
(Pa. 2008).
Duong was convicted under section 3802(a)(1) of the Motor Vehicle
Code, which states:
§ 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). “[S]ubsection 3802(a)(1) is an ‘at the time of
driving’ offense, requiring that the Commonwealth prove the following
-4-
J-A32002-14
elements: the accused was driving, operating, or in actual physical control of
the movement of a vehicle during the time when he or she was rendered
incapable of safely doing so due to the consumption of alcohol.”
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).
Although Duong concedes that he was involved in an accident and,
thus, tacitly acknowledges that he was operating a vehicle, he maintains,
“there is no evidence presented at trial that would lead a fact-finder to
believe that [he] was under the influence at the time of driving.” Appellant’s
Brief at 10 (unnumbered). Duong argues that Officer Flanagan’s
observations of his alleged intoxication after the accident occurred did not
constitute proof that he was under the influence at the time of the accident.
See id.
In Segida, the Pennsylvania Supreme Court described the types of
evidence that the Commonwealth may offer to prove this element:
Section 3802(a)(1), like its predecessor [statute], 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.... 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
-5-
J-A32002-14
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.
985 A.2d at 879.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we find that the evidence presented at trial was sufficient
to enable the factfinder to conclude that Duong was incapable of safely
driving his vehicle due to the consumption of alcohol. The totality of the
circumstances reveals that the accident occurred at approximately 11 p.m.
See N.T., Bench Trial, 2/28/14 at 6. Officer Flanagan testified that her
observation of Duong’s slurred speech, staggering gate and the strong odor
of alcohol emanating from his person occurred “[a] little bit after 11:00
[p.m.].” Id. at 11.1 Officer Flanagan further testified that she did not
observe any open bottles of alcohol around the couch or in the room in
which Duong was sitting when she arrived at his residence shortly after the
accident occurred. See id. at 12. Based on Officer Flanagan’s observations
of Duong minutes after the accident occurred, we conclude that the court
properly found that the evidence was sufficient to prove that Duong
____________________________________________
1
Duong’s claim that Officer Flanagan did not visit his residence until
approximately 45 minutes after the accident occurred is unsupported by the
record.
-6-
J-A32002-14
operated his vehicle while under the influence of alcohol to a degree which
rendered him incapable of safe driving in violation of section 3802(a)(1) of
the Vehicle Code. See Segida.
Lastly, Duong argues that the trial court erred when it admitted the
results of a breathalyzer test without establishing that the testing was
conducted in compliance with 75 Pa.C.S.A. § 1547(c). See Appellant’s Brief
at 13 (unnumbered). Section 1547 sets forth the requirements for the
admissibility of chemical test results in prosecutions involving an amount of
alcohol or controlled substance.
A panel of this Court disposed of a similar claim in Commonwealth v.
Hilliar, 943 A.2d 984 (Pa. Super. 2008). There, Hilliar argued that chemical
test results should have been precluded because “the Commonwealth failed
to show that the equipment and procedures themselves were approved by
the Department of Health and that the equipment and procedures used in
this case were the best equipment and procedures that science and
technology would permit.” Id. at 992.
The panel initially noted that, “[a]s a general rule, if a facility is
approved by the Department of Health and listed in the Pennsylvania
Bulletin, then the trial court may take judicial notice that the facility satisfies
the requirements of Section 1547.” Id. at 993. The panel continued:
It is because a blood alcohol test is basic and routine and,
therefore, highly reliable, that the safeguards ordinarily afforded
by confrontation and cross-examination are not required. [A]
party who believes that, notwithstanding a lab’s state approval
and publication in the Pennsylvania Bulletin, some error in
-7-
J-A32002-14
testing occurred, i.e., the improper timing of a test or an
equipment malfunction, is free to present evidence of that error
to rebut the inference created by judicial notice. Only specific
allegations of testing errors, and not general, boilerplate
objections to the admission of the test results, will require the
Commonwealth to provide evidence of the test’s reliability other
than by reference to the Pennsylvania Bulletin.
Id. (emphasis added). Finding that the trial court took notice that the
hospital which conducted the blood analysis was listed in the Pennsylvania
Bulletin as an approved facility for blood testing and that Hilliar had not
raised any specific allegation of testing errors, the panel concluded that the
Commonwealth was not required to provide evidence to establish the test’s
reliability. Id. at 993-994.
Here, unlike in Hilliar, there is no evidence that the trial court took
judicial notice that the facility that conducted the breathalyzer test was listed
as an approved facility for testing in the Pennsylvania Bulletin. 2 We note,
however, that Duong does not challenge whether or not the facility was an
approved facility for blood testing, but rather, alleges only generally that the
Commonwealth did not comply with Section 1547 “because the
Commonwealth failed to introduce calibration and accuracy documents.”
Appellant’s Brief at 8 (unnumbered). Guided by this Court’s decision in
Hilliar, we find that, in the absence of more specific allegations of error,
____________________________________________
2
We note that defense counsel stipulated that Philadelphia Police Officer
Mark Menke, who administered the breathalyzer test and testified to the
results, was certified to administer and testify to the test results. See N.T.,
Trial, 2/28/14 at 16.
-8-
J-A32002-14
such boilerplate language is inadequate to challenge the admission of test
results under Section 1547.
Duong’s reliance upon the Pennsylvania Supreme Court’s decision in
Commonwealth v. McGinnis, 515 A.2d 847 (Pa. 1986), is misplaced. In
McGinnis, it was uncontroverted that the machine used to analyze the blood
test had been modified prior to use, and thus the unit was not approved by
the Department of Health for testing purposes. See id. at 850. On this basis,
the Court concluded that the blood results were inadmissible. See id. The
facts presented in McGinnis are clearly distinguishable from this case,
where Duong has not alleged any specific allegation of testing error.
Even assuming, for the sake of argument, the breathalyzer results
were admitted in error, we would agree with the trial court that the error
was harmless. As noted, this Court’s decision in Segida counsels that blood
alcohol content evidence is not required for a conviction under Section
3802(a)(1). See Segida, supra, at 879; see also, Commonwealth v.
Griffith, 32 A.3d 1231, 1238 (Pa. 2011) (“Although the Commonwealth may
proffer evidence of alcohol level ... to establish that the defendant had
imbibed sufficient alcohol to be rendered incapable of driving safely, it is not
required to do so under subsection 3802(a)(1).... This is well-established,
long-standing law in Pennsylvania.”). Thus, Officer Flanagan’s personal
observations of Duong’s intoxication shortly after he operated his vehicle
would be sufficient under Section 3802(a)(1) even without the breathalyzer
results.
-9-
J-A32002-14
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
- 10 -