J-S46035-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID COLEMAN A/K/A MARK COLEMAN, :
:
Appellant : No. 3057 EDA 2011
Appeal from the Judgment of Sentence October 13, 2011
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006209-2010
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER,* J.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 23, 2016
David Coleman (Appellant) appeals from the judgment of sentence of
90 days to five years of imprisonment following his conviction of his third
offense of driving under the influence (DUI). We affirm.
The trial court summarized as follows the evidence offered at
Appellant’s non-jury trial, at which he was represented by David Seth
Glanzberg, Esquire.
On September 26, 2008 at approximately 9:56 p.m.,
[Appellant] was traveling southbound on the 6200 block of
Stenton Avenue in Philadelphia, Pennsylvania, toward the
intersection of Stenton Avenue and Washington Lane.
[Appellant] was traveling with one passenger in his car, Donald
Young, Jr. [Appellant] turned his vehicle across two lanes of
opposing traffic on Stenton Avenue, causing another vehicle to
strike [Appellant’s] vehicle in the rear-quarter panel. Donald
Young [] testified [that Appellant] stopped at the stop sign
before turning across traffic. The vehicle that collided with
[Appellant’s] car had no stop sign, and thus the right of way.
Donald Young testified that although [Appellant] proceeded
*Retired Senior Judge assigned to the Superior Court.
J-S46035-16
through the stop sign with caution, the colliding vehicle was
traveling “fast” and appeared to be racing another vehicle.
Donald Young further testified he did not smell alcohol on
[Appellant’s] breath, notice blurry eyes, or notice a swaggered
gait. Donald Young further testified that after the accident,
[Appellant] struggled to breathe, limped, and grabbed his chest
in pain.
Officers Kristie Trenwith and Lisa Bailey responded to the
auto accident at Stenton Avenue and Washington Lane. Both
Officers noticed [Appellant] had a strong smell of alcohol on his
breath, glassy and bloodshot eyes, and an unbalanced walk.
Both officers testified [Appellant] was not capable of safely
operating a motor vehicle at that time because he was
intoxicated. Officer Trenwith testified that [Appellant] did not
complain about shortness of breath, chest pains, or ask for
medical attention. When Officer Trenwith informed [Appellant]
he was under arrest, [Appellant] replied that he was not the
vehicle’s driver. Officer Bailey testified that when she told
[Appellant] she believed he was under the influence of alcohol,
[Appellant] replied he was not driving the vehicle at the time of
the accident. [Appellant] was placed under arrest for driving
under the influence of alcohol.
[Appellant] testified he did not drink any alcohol on
September 26, 2008. [Appellant] also denied he told Officers
Trenwith and Bailey that he was not driving his vehicle that
evening. [Appellant] testified that he complained to the Officers
he was experiencing shortness of breath and tightness in his
chest. After [Appellant] was arrested and processed, he was
transported by police to Jefferson Hospital approximately two (2)
hours after the arrest. At Jefferson Hospital, [Appellant’s urine]
tested positive for opiates and cannabis. [There was no chemical
evidence offered at trial of the presence of alcohol in Appellant’s
system.]
Trial Court Opinion (TCO), 4/2/2014, at 1-3.
Upon the above evidence, the trial court convicted Appellant for DUI in
violation of 18 Pa.C.S. § 3802(a)(1) (“An individual may not drive, operate
or be in actual physical control of the movement of a vehicle after imbibing a
-2-
J-S46035-16
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.”). On October 13, 2011, Appellant was sentenced to a term
of incarceration of 90 days to five years. On November 3, 2011, Appellant
pro se timely filed a notice of appeal. Also on November 3, 2011, the docket
reflects the newly-entered appearance of Jerome M. Brown, Esquire, on
behalf of Appellant. On November 9, 2011, Attorney Brown filed on
Appellant’s behalf a concise statement of errors complained of on appeal,
and a motion to proceed in forma pauperis as to fees and costs, noting
therein that Appellant had paid 40% of Attorney Brown’s retainer for
pursuing a motion for bail pending appeal.
On January 17, 2012, this Court dismissed the appeal based upon
noncompliance with Pa.R.A.P. 3517 (requiring the filing of a docketing
statement). Appellant pro se filed an application to reinstate the appeal,
which this Court granted by order of March 2, 2012. In that order, this
Court noted that Attorney Brown had not been permitted to withdraw, and
directed Attorney Brown to enter his appearance in this Court within ten
days. Attorney Brown complied on March 6, 2012, and filed the required
docketing statement on March 21, 2012.
Without any explanation we can glean from the record, neither the
trial court nor this Court took further action on the appeal for more than two
years. On April 2, 2014, the trial court filed its Rule 1925(a) opinion.
-3-
J-S46035-16
Shortly thereafter, this Court issued a briefing schedule. Attorney Brown
then filed a motion to withdraw, alleging therein that Appellant had made no
payment to counsel since the initial payment, and that counsel “has not
even heard from [Appellant], except for one phone call, over the past two
years, and he has ignored Counsel’s request for payment or cooperation.”
Petition to Withdraw as Counsel, 5/9/2014, at 1. Thus, Attorney Brown
sought to withdraw based upon Appellant’s breach of the representation
agreement and “a complete breakdown in communication and in the
relationship between the parties.” Id.
On May 27, 2014, this Court entered an order allowing Attorney Brown
to withdraw, vacating the briefing schedule, and directing the trial court to
determine within 60 days whether Appellant was eligible for court-appointed
counsel. On October 9, 2014, Kevin Holleran, Esquire was appointed to
represent Appellant. A new briefing schedule was established, and both
parties filed briefs following the grant of extensions. Thus, the appeal finally
is ripe for decision.
Appellant presents one issue for our review: “Did the trial court
commit error by convicting Appellant of DUI[–]general impairment where
the evidence at trial was insufficient to establish that Appellant operated a
motor vehicle after consuming alcohol to [the] point that he was incapable of
safely operating the vehicle?” Appellant’s Brief at 2 (unnecessary
capitalization omitted).
-4-
J-S46035-16
In reviewing the sufficiency of the evidence, we consider
whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the [] verdict
beyond a reasonable doubt. The Commonwealth can meet its
burden by wholly circumstantial evidence and 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. As an appellate court, we must review the entire
record ... and all evidence actually received[.] [T]he 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. Because evidentiary sufficiency is a question of law,
our standard of review is de novo and our scope of review is
plenary.
Commonwealth v. Dawson, 132 A.3d 996, 1001-02 (Pa. Super. 2015)
(internal citations and quotation marks omitted).
“[S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense,
requiring that the Commonwealth prove the following 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). “[A] police officer who has perceived a
defendant’s appearance and acts is competent to express an opinion as to
the defendant’s state of intoxication and ability to safely drive a vehicle.”
Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000).
Appellant’s primary complaint is that the Commonwealth failed to
prove the second element (that he was incapable of driving safely) because
-5-
J-S46035-16
it did not establish that the collision was his fault. Appellant’s Brief at 7.
That argument warrants Appellant no relief.
To establish the second element, it must be shown that alcohol
has substantially impaired the normal mental and physical
faculties required to safely operate the vehicle. Substantial
impairment, in this context, means a diminution or enfeeblement
in the ability to exercise judgment, to deliberate or to react
prudently to changing circumstances and conditions. Evidence
that the driver was not in control of himself, such as failing to
pass a field sobriety test, may establish that the driver was
under the influence of alcohol to a degree which rendered him
incapable of safe driving, notwithstanding the absence of
evidence of erratic or unsafe driving.
Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003) (quoting
Palmer, 751 A.2d at 228).
Thus, in order to obtain DUI conviction of Appellant, the
Commonwealth was not required to offer evidence to establish that
Appellant had driven unsafely prior to his arrest (i.e., that the collision was
Appellant’s fault); rather, it had to prove that Appellant drove his vehicle,
and that when he did he so was in an alcohol-induced state that rendered
him incapable of driving safely.
Mr. Young, Appellant’s passenger, testified that Appellant had been
driving his truck at the time of the collision, and that police arrived between
25 to 30 minutes afterwards. N.T., 1/20/2011, at 11, 30. Officer Trenwith
testified that, when she spoke with Appellant, she “noticed a strong smell of
alcohol coming off his breath, glassy eyes, bloodshot eyes and an
unbalanced walk.” Id. at 41. Officer Bailey also noted the odor of alcohol
-6-
J-S46035-16
on Appellant’s breath along with his “bloodshot watery eyes and an
unbalanced walk.” Id. at 55. The officers also opined, based upon their
experience, that Appellant was under the influence of alcohol and was
unable to operate his vehicle safely.1 Id. at 43, 56. Further, when Officer
Bailey expressed to Appellant her belief that he was under the influence of
alcohol, Appellant lied by claiming that he had not been driving. Id. at 55.
Viewing this evidence in the light most favorable to the Commonwealth
and giving the Commonwealth the benefit of all reasonable inferences
therefrom, we hold that the Commonwealth’s evidence is sufficient to prove
each element of DUI–general impairment. See, e.g., Commonwealth v.
Hartle, 894 A.2d 800, 804-05 (Pa. Super. 2006) (holding evidence was
sufficient to sustain general impairment conviction sans a vehicle collision or
chemical proof of alcohol consumption where the defendant “ran a stop sign,
smelled of alcohol, had bloodshot and glassy eyes, was unsteady on his feet,
refused to perform field sobriety tests, and refused a breath test”);
Commonwealth v. Feathers, 660 A.2d 90, (Pa. Super. 1995) (reversing
the trial court’s post-verdict judgment of acquittal, and reinstating the jury’s
guilty verdict, where the record showed that the defendant was found by
police with her car hanging over the edge of a newly-constructed roadway,
and had bloodshot, glassy eyes, slurred speech, staggered when walking,
and the strong odor of alcohol on her breath).
1
The trial court found the officers to be credible. TCO, 4/2/2014, at 5.
-7-
J-S46035-16
Appellant also argues that the evidence was insufficient based upon
(1) a view of the evidence in a light most favorable to himself, crediting his
testimony and that of his longtime friend over the contrary testimony of the
officers, Appellant’s Brief at 7 (“Mr. Young testified that while in Appellant’s
vehicle, he did not detect the odor of alcohol emanating from Appellant and
did not observe[] blood shot or watery eyes.”); and (2) conjecture as to
other possible causes for his post-collision behavior, id. at 8 (“While the
Commonwealth presented evidence that Appellant had difficulty walking and
maintaining balance, it is entirely possible that these physical observations
were the result of Appellant[’s] having recently been in the collision.”).
Those contentions do not support a claim that the evidence was insufficient
to sustain a conviction. See, e.g., Commonwealth v. Kriegler, 127 A.3d
840, 847 (Pa. Super. 2015) (“In reviewing the sufficiency of the evidence,
we view all the evidence admitted at trial in the light most favorable to the
Commonwealth…. [T]he Commonwealth need not establish guilt to a
mathematical certainty.” (citation and quotation marks omitted)).
Thus, the verdict is supported by sufficient evidence and Appellant is
entitled to no relief from this Court.
Judgment of sentence affirmed.
P.J.E. Bender joins.
Judge Ott concurs in the result.
-8-
J-S46035-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
-9-
Com. v. Coleman, D.
Combined Opinion