Com. v. Kohli, H.

J-S75035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
HEMANT KOHLI, :
:
Appellant : No. 101 EDA 2016

Appeal from the Judgment of Sentence entered on October 21, 2013
in the Court of Common Pleas of Chester County,
Criminal Division, No(s): CP-15-CR-0000569-2013

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 14, 2017

Hemant Kohli (“Kohli”) appeals, nunc pro tunc, from the judgment of

sentence imposed following his conviction of driving under the influence

(“DUI”). See 75 Pa.C.S.A. § 3802(a)(1). We vacate the judgment of

sentence and remand for resentencing.

The trial court has set forth an extensive recitation of the underlying

facts in its Opinion, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 3/10/16, at 4-19.

On August 6, 2013, following a jury trial, Kohli was found guilty of one

count of DUI. The jury also found that Kohli had refused to submit to a

blood test. On October 21, 2013, the trial court sentenced Kohli to 18 to 36
J-S75035-16

months in prison, followed by two years’ probation.1 Kohli did not file a

direct appeal.

On September 8, 2014, Kohli filed a counseled Post Conviction Relief

Act (“PCRA”)2 Petition. On December 3, 2015, with agreement of the

Commonwealth, the PCRA court entered an Order granting Kohli the right to

file a nunc pro tunc direct appeal. Thereafter, Kohli filed a nunc pro tunc

appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise

Statement.

On appeal, Kohli raises the following questions for our review:

1. Whether the evidence was insufficient as a matter of law to
sustain [Kohli’s] conviction for [DUI]?

2. Did the Common Pleas Court [err] in imposing a minimum
mandatory sentence?

Brief for Appellant at 2.

In his first claim, Kohli contends that the evidence was insufficient to

support his conviction. Id. at 7. Kohli argues that he only had one drink

approximately seven hours prior to the vehicle stop; when he stopped his

vehicle at the stop sign, the vehicle only slightly went past the sign; he was

able to pull over when the officer engaged his emergency lights; and there

was no other evidence of erratic driving. Id. at 8-9. Kohli asserts that he

1
At sentencing, the trial court noted that the conviction at issue in this case
was Kohli’s third DUI conviction in a ten-year period. N.T., 10/21/13, at 5,
9.
2
See 42 Pa.C.S.A. §§ 9541-9546.

-2-
J-S75035-16

passed the first field sobriety test and only exhibited signs of impairment on

the “walk and turn test and [the] one[-]leg test.” Id. at 9. Kohli further

denies that he slurred his speech, had bloodshot eyes, admitted to drinking

alcohol, or engaged in any extreme behavior. Id. Rather, Kohli claims that

he was coherent at the time of the stop. Id. Kohli also contends that there

was no blood alcohol or drug testing conducted to demonstrate that he was

under the influence. Id. Kohli argues that he refused to submit to a blood

test because he was battling a skin disorder and was prone to infection from

a needle. Id. Kohli asserts that he should have been provided an

alternative chemical test, and that such a test could have rebutted the

Commonwealth’s allegations. Id. at 9-10.

The trial court set forth the relevant law, addressed Kohli’s sufficiency

claim, and determined that it is without merit. See Trial Court Opinion,

3/10/16, at 2-21.3 We adopt the trial court’s sound reasoning for the

purpose of this appeal. See id.

In his second claim, Kohli contends that his mandatory minimum

sentence was illegal based upon Alleyne v. United States, 133 S. Ct. 2151

3
We note that Kohli’s claim regarding the failure to conduct blood alcohol
testing does not render the evidence insufficient to support his DUI
conviction under section 3802(a)(1). See Commonwealth v. Teems, 74
A.3d 142, 145 (Pa. Super. 2013)

-3-
J-S75035-16

(2013). Brief for Appellant at 11.4 Kohli argues that his sentence is illegal

because the jury did not find beyond a reasonable doubt all facts necessary

to require imposition of a mandatory minimum sentence. Id.5

Section 3804(c)(3) states the following:

(c) Incapacity; highest blood alcohol; controlled
substances.--An individual who violates section 3802(a)(1) and
refused testing of blood or breath or an individual who violates
section 3802(c) or (d) shall be sentenced as follows:

***

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $2,500; and

(iii) comply with all drug and alcohol treatment requirements
imposed under sections 3814 and 3815.

75 Pa.C.S.A. § 3804(c)(3).

Here, the mandatory minimum sentence was imposed based upon

Kohli’s prior convictions, his violation of section 3802(a)(1), and his failure

4
Kohli’s failure to include this legality claim in his Rule 1925(b) Concise
Statement does not result in waiver. See Commonwealth v. Henderson,
938 A.2d 1063, 1065 n.1 (Pa. Super. 2007) (stating that appellant’s failure
to include a legality of sentence challenge in his Rule 1925(b) concise
statement did not result in waiver, as such a claim cannot be waived where
jurisdictional requirements are met).
5
We note that Kohli does not identify the “fact” that the trial court utilized in
imposing the mandatory minimum sentence. See Pa.R.A.P. 2119(a) (stating
that the argument must contain “such discussion and citation of authorities
as are deemed pertinent.”). Here, Kohli was subject to the mandatory
minimum sentence under 75 Pa.C.S.A. § 3804(c)(3). See N.T., 10/21/13,
at 21.

-4-
J-S75035-16

to consent to a blood test. See N.T., 8/6/13, at 63-64. Prior to addressing

Kohli’s claim on appeal, we will first determine whether the imposition of the

mandatory minimum sentence violated the recent United States Supreme

Court holding in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).6

In Birchfield, the Supreme Court concluded that “a breath test, but

not a blood test, may be administered as a search incident to a lawful arrest

for drunk driving.” Birchfield, 136 S. Ct. at 2185. Additionally, the

Supreme Court held that blood tests taken pursuant to implied consent laws

are an unconstitutional invasion of privacy. Id. at 2186. The Supreme

Court stated that “motorists cannot be deemed to have consented to submit

to a blood test on pain of committing a criminal offense.” Id.; see also id.

(concluding that the petitioner could not be convicted of refusing a

warrantless blood draw following an arrest for driving under the influence).

As the Birchfield Court held that the practice of criminalizing the

failure to consent to blood testing following a driving under the influence

arrest was unconstitutional, the trial court improperly relied upon section

3804(c)(3) in imposing a mandatory minimum sentence upon Kohli. See

Commonwealth v. Giron, 2017 PA Super 23, *4 (Pa. Super. 2017)

(holding that “pursuant to Birchfield, in the absence of a warrant or exigent

6
We note that sentencing issues relating to a court’s statutory authority to
impose a sentence implicate the legality of sentence. Commonwealth v.
Foster, 17 A.3d 332, 342 (Pa. 2011). While this issue was not raised by the
trial court, the Commonwealth, or Kohli, it is well-settled that legality of
sentence questions may be raised sua sponte by this Court. See
Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014).

-5-
J-S75035-16

circumstances justifying a search, a defendant who refuses to provide a

blood sample when requested by police is not subject to the enhanced

penalties provided in 75 Pa.C.S.A. §§ 3803-3804.”). Because there was no

statutory authority to impose the sentence, we must vacate the judgment of

sentence and remand for resentencing. See id.7

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2017

7
Based upon our disposition, we need not further address Kohli’s bald
Alleyne challenge.

-6-
 Circulated 02/02/2017 04:09 PM

11
'
COMMONWEAL TH OF PENNSYLVANIA IN THE COUR.T OF COMMON PL.EA.S

!!..,I • CHESTER COUNTY, PENNSYLVANI/\
I.. , .vs
ji
I j
CRIMINAL ACTION
"!
I! !,
f [
Hf::~vlAf\JT f,.•,•--------·-•••••---··------,...,,_,,_·,-·.·--~··'"-·-N--- . ··~··-·•-- ---
however, the verdict of guilty v,ras found by a jury, not the judge.
I
3
I
i J
I

I Stevenson, 894 /-\.2ci 759, 773 (Pa.Super. 2006), app. denied, 917 A.2cl 846 (Pa.
ii
I! 2007).
Il The uncorroborated testimony of one victim, if believed by the trier of fact, is
11
1,
II sufficient to convict a defendant, if all the elements of a crime are established beyond a
II
i lI
I I
reasonable doubt. Q..9mrno.nyve9_Wl.Y.,J\1E\Q.t~. 850 A.2d 690, 693 (Pa.Super. 2004), citing!

1
I
.G.Qn:Jll'tQll\/vealtl:1._v._D_sl...'{iS, 650 A.2d 452, 455 (Pa.Super. 1994), app. granted, 659 A.2d
I
I I
I! 557, affirmed, 674 A.2d 214 (Pa. '1996). The Commonwealth presented two witnesses
11
ii and the Defendant presented four witnesses.
II
Fingin_g§. of Fact I
11
Ii I I Officer David Warclle testified at trial that he had been a patrol officer with Caln I
i
I
I

i Township Police Department for over eleven years. (N.T., 8/5/13, p. 38). Prior to Caln I
Ii i
! Township he served in three other police departments. Id.:.. Overall, he had served over I
'II
· 1
fifteen years as a police officer. J..Q_,_

11 Office Wardle testified that on January 1, 20"!3, at approximately 5:20 AM, he
I
11 was driving in an unmarked patrol vehicle northbound on Municipal Drive in Caln
'1
1·
! I Township. Chester County. (N.T., 8/5/13, pqs. 3fJ, 71 and 76). His vehicle was the only I
!
11
lI one on Municipal Drive at the time. (N.T., 8/5/'!3, p. 70). He stopped at the four vvay
11
II
i I stop sign at the intersection of G.O. Carlson Boulevard. (N.T., 8/5/13, pgs. 39, 7·1 and
II
76). Out of habit, he had his vehicle window cracked open. (N.T., 8i5/13, pgs. 39 and
I 70). While stopped, he heard a vehicle coming toward the intersection at a high rate
I! I
i . I
I
I'
I
of speed; it was going eastbound on G.O. Carlson Boulevard. (N.T., 8/5/13, pqs. 39-40 I
Ij
II and7'1-72). I
I!
i ! I
I I
II
I I
 Specifically, he heard the sounds of the engine and the wheels on the road,

' which sounded like they vvere going fast. (ts.LT., 8/5/13, p.40). Office Wardie testified
I i

that he stayed stopped because he did not want to go through the intersection. kl He
II
11 observed the headlights corninq and they appeared to be corning at a high rate of
1,
l!
speed. Id.:_ The officer clid not think the vehicle would stop. lg_,_ At the last second, the
I
Ii driver" applied the brakes and the vehicle came to a screeching halt, "as much as
Ii
11
Ii antilock brakes can come to a screeching halt." kl He heard the wheels chirping as
,I
11 the brakes clicked on and off. .l~L.
The officer testified that the vehicle did stop but that it was partially past the stop
Il II sign and into the intersection. (N.T., 8/5i13, pgs. 40 and 73). He used Exhibits C-1

11 and C-2 as visual aids to demonstrate the roadways, the directions of travel and

I
locations of his vehicle and Defendant's vehicle. (r~.T.. 8/5/13, pgs. 4'1-45). When
I:' i
I Defendant's vehicle came to a stop, most of the vehicle had crossed over the stop line.

11
I (f\l.T., 8/51'!3, pgs. 45 and 73). ;

11 Office Wardle initialed his emergency red and blue ligh1s, put his window down I
i the rest of the way and turned left onto G.O. Carlson Boulevard to pull up right next to I
II I Defendant's vehicle. (N.T., 8/5/13, pgs. 45 and 77-78). The officer testified that he put
!
I
jI his hand out the window in an open manner and motioned for Defendan11o stop. (N.T., J

I 8/5/13, pgs. 45-46 and 78). He wanted to get Defendant's attention to slop and talk lo I
l, hi111. (N.T., 8/5/13, p.45), He demonstrated in court how he signaled to Defendant, with

his left hand, the universal sign for stop. (N.T., 8/5/13, p.46).
ii.,. I
I I
Ii
!I
iI
11 . .. ·----·-·-··· ··--·----···-··· ······ · ··-'·-····
11 ? Officer Wardle ideutilied Defendant as the driver of the vehicle. {I\J.T., 8/5/13, pgs 53-54).
11
Ii
'!

I ..c)
 I'
, 1

11 Defendant failed to stop and accelerated eastbound at a high rate of speed.
I,1
1 (N.T., 8/5/13, pgs. 46 and 78). Officer Wardle kept his emergency lights on, made a
i
Ii
Ii three-point turn to start following Defendant and activated his siren as well. (N.T.,
11
11 8/5/13, pgs. 46-48). The officer followed Defendant into the Thornridge development
I,! 1
,I where Defendant stopped his vehicle and got out. (N.T., 8/5i13, pgs. 48, 54. 78 and

I 80). Officer Wardle stopped his patrol car behind Defendant's vehicle. (N.T., 8/5/13,

IIi! p. 48).
ll
iI,I Defendant had exited his vehicle and the officer instructed him to get back in the

11 car. (N.T., 8/5/13, pgs. 48 and 52-53). Defendant failed to comply. (N.T., 8/5/13, I
11

II p.53). Defendant stated that he did not see the police vehicle at the stop sign. (N.T., I
I
11
8/5/13, p. 188). Office Wardle observed that Defendant was unsteady on his feet when I
11
standing, svvaying frorn side to side, almost staggering. (N.T., 8/5/13, pgs. 53-54 and I
11 81). Defendant was not faliing over, but the officer testified that he had to assist him a
,I' I
11 couple of times during the encounter. (N.T., 8/5/13, pgs. 54 and 81). The officer could ;
!
11
I I
I j smell a strong odor of alcoholic beverage coming from Defendant. (N'L, 8/5/13, pgs.

53-54).
11
Officer \/Vard!e described the training and experience he had received with
I 1

11 regard to interacting with people that may be under the influence of alcohol. (N. T.,

I!' 8/5/13, p. 55). He had training at the police academy for one year, including training in

I DUI detection, field testing and how to properly stop a vehicle. (N.T., 8/5/-13, pgs. 55

I! and 69-70). Officer Wardle takes updated mandatory training once a year. (N.T.,

i11 8/5/'13, p. 69).
11
,1
1

Ii
i!
I'
6
1
I I

iI
He had personally investigated about 75 DUI cases and had assisted numerous
11
li officers with their cases and field tests (N.T., 8/5/13, p. 55). Also, during his 15 years
I
as a police officer. he very frequently dealt with people who were under the influence of
i alcohol in non-DUI related settings. ~ In his personal life, he has frequently had the I
I
11

I! opportunity to come into contact with people who are under the influence of alcohol. Id, l
11
Based on his training and experience, when he does a traffic stop Officer Wardle I
! j I
!I
'I
II
looks at the following for indicia of someone being under the influence of alcohol: " ...
I
1 physical observations, how they move, how they talk, the look in their eyes, the things I
1 I
i

I
that they say, the manner of their speech, whether it's slurred or clear." (N.T., 8/5/'13.
I
I I,
pgs. 55-56).

I Officer Wardle testified that Defendant told him that he had a few drinks at a I
1 .,1.I friend's house earlier and that he was trying to go home. (N.T., 8/5/13, p.56). The II

1
i,- I officer further testified that Defendant then asked him " ... numerous times if I knew who! I

11 :
.I he was. He asked me numerous times, also, if we had reached the point in life that we I
II 1·,

were all losing. And then, again, he was going to be the next President of the United

States. And he asked me if l would like him to have Obama call to verify it." Jg.,,
II, l Defendant started making the statements almost immediately when the officer started I
11 interacting with him, well before he was placed under arrest for DUI. (N.T., 8/5/'!3, p. I
I
j'
188). l
II Their encounter lasted a little over a half an hour and during that time, Defendant]
I
l! asked the officer five or six times if he knew who Defendant was and that he wouid be
l
I
iI II I
iI
! l
the next President of the United States. (N.T., 8/5/'13, pgs. 56-57 and 188). Defendant I
!: II
lI
11
Il
I
I

I II I
11 7 I
 i I
!I!l
11 also told him five or six times that he would have President Obama give the officer a

I call. (N.T., 8/5/13, p.57):.

Based on Officer Wardle's life experience he would not describe Defendant as

11 saying it in a joking or sarcastic manner. (N .T., 8/5/13, p. 188). It sounded like drunken
If
rambling to the officer. Id. Based on his training and experience, the officer formed the I
11
1,
1,
l !
opinion that Defendant was under the influence of alcohol and/or drugs and that giving I
11
field sobriety tests would be appropriate. (N.T., 8/5/13, pgs. 57 and 82). This opinion
IIil I

was based upon Defendant's unsteady gait, his swaying side to side; his cryptic
Ii
I questions; the things he Was saying, his slurred speech and the odor of alcohol. (N .T., I
iI
,I
,. 8/5/13, p.57). I
I!
, 1
,I Officer Wardle testified that that he generaliy uses three field sobriety tests and
Ii
j I he gave Defendant the three tests during the incident in question. (N.T., 8/5/13. pgs.

1' 58 and 83). First. he asked Defendant to say the alphabet and Defendant recited it
II
fine. kl Next, the officer used two physical tests to determine Defendant's ability to
I hold his balance and follow instructions. (N.T., 8/5/13, p. 58).
I
For the one leg stand test, Officer Wardle testified that he instructs suspects to
I
stand with the.r feet together, hands at their side so that they can focus on what he is

telling them. kl Officer Wardle holds that position as well. Id. He stated, "[Tjhe

instruction is to lift whichever foot you choose six inches off the ground. then count to

30 by thousands, one, 1 ,OOO: w10, 1,000. And I do explain, not all the way to 30, but I

will count and say to three or four, just so they understand the test." kl He also asks if

there is anything wrong with the suspect's legs, knees or hips that might prohibit doing 1.
I
!
'
, the physical test. (N.T., 8/5/13, pgs. 59-60). Officer \/1/ardle demonstrated for the jury
I
I
.I
!
I:
I I
i! !I i
!
1'I how he instructed Defendant to do the test. kL He testified that Defendant said he was I
'I fine in response to the question about any leg, knee or hip issues. (N.T., 8i5i13, p.

I 60).
I
I I The officer stated that ideal road conditions for field sobriety tests, would be a

11 flat surface with no obstructions or gravel. (N.T., 8/5/'13, pgs. 58-59). During the
I'I I
! I
Ii 1
! incident in question, Defendant and Officer VVardle were on a good, flat, level, dry
! I
11
surface. (N.T., 8/5/13, p. 59).
11
Iil I When asked how.Defendant performed on the test, the officer responded, "[a]!

the count of three, he had to put his foot down for balance. He started over at the count

d of four. He had to put his foot down for balance again." (I\J.T., 8/5/'13, pgs. 60 and 83).

II At that point. Defendant asked the officer if he could perform another test. (NT.
·,
11

8/5/13. p. 60).
II
Ii
i Officer Wardle explained the walk and turn test to Defendant. lfL He

demonstrated and described the test to the jury as he had described it to Defendant on
I
11 the morning in question. (N.T., 8/5/13, pgs. 60-61). Specifically, the officer stated, "I,
II
, I
ll ! again. would have them hold position. in a mirror position.
I Have them put their right
11
II;i foot in front. i mirror the left foot in front of the right foot so there is no confusion, keep
Ii
Ii hands at side while I explain the test. He is to walk heel to toe nine steps, counting out

with each step, turn, come back nine heel to toe steps. I will generali:/ demonstrate
I how to do it appropriately." (N.T., 8/5/1~3. p. 61).

The officer testified that he did not recall if he demonstrated all nine steps for
I
Defendant, it might have been five or six, but he did demonstrate the steps and the turn I
for him. lei.. He demonstrated for the jury how he showed Defendant how to make the I
l
 !I
11
i
I turn, as a "pivot where you are, nothing extravagant," before taking the heel to toe steps

! i back. li;L Regarding Defendant's performance of the test, Officer Wardle stated that
!
1,
I
iiI; Defendant was able to put one foot in front of the other, but used his arms out at the
11
I I side for- balance. Id.
I' The purpose of field sobriety tests is to help the officer determine whether
11
11

Ii someone is under the influence of alcchol. (N.T, 3/5/13, p. 62). To make that
I
11
r I determination, the officer looks for "how they pay attention to the instructions, how they I
11 I
perform. Also, with the counting, it helps to see what their mental facilities are. Are
11
i they counting in order? Are they hesitating, thinking about what the next number is?
I And, then also, their balance, how well they carry themselves." &_
II
, I
''i'
11 Based upon his training and experience, the officer determined that Defendant
i
I
failed the one legged stand test. Id. This opinion was formed because Defendant was

only able to go to three or four steps before putting his foot down for balance. (f\J.T.,
II
!
8/5/13, pgs. 62-63). Officer \;\/ardle also detennined that Defendant failed the walk and
11
11 turn test because he did not follow instructions and he used his arms outstretched for
I!
I! balance. (r\/.T., 8/5/13, p. 63).

I
I
I
At this point during their interaction, the officer had formed the opinion that

Defendant was under the influence of alcohol and incapable of safe driving. Lii. He

based this opinion on the totality of the circumstances, including the following: his

observation of Defendant rolling through the stop sign, the high rate of speed, applying

the brakes heavily at the last second, not following the officer's instruction to get back in
I
the car, Defendant's unsteady manner, the swaying, slurred speech, the odor of

alcoholic beverage, his questions to the officer of "have we reached a point where we're
 11

I;i i
:l,: ,·
all losing? Do I know who he is. that he is going to be the next president" and the field

!I
I. sobriety testing results. (NT, 8/5/13, pgs. 63-64 and 88).

11
At some point durin9 the officer's interactions with Defendant, he called Officer

11 Pohlig to assist at the scene. (N.T., 8/5/13, p. 64). Officer VVardle placed Defendant

under arrest, put him in the back of the patrol car and told Defendant that they were
11
goino to go to Brandywine Hospital for a chemical test of his blood. (N.T., 8/5/13, pgs.
11
I'
11 64 and 84). The procedure for a chemical test entails a phlebotornist drawing two tubes
11
i ! of blood that wi!I get sent to the State Police lab where an analysis will be done to
Ii
I!11 determine the blood alcohol content. (NT., 8/5/B, p 64).

Ii
, I
Prior to leaving the scene, Officer Vvardle asked Defendant if he would submit to I
11 the blood test. (N.T., 8/5/'!3, p. 189). Defendant responded that he would not submit tol
!I
11 the test because he had a couple of prior DU!s and Defendant did not mention that he
11
11
had a skin rash or medical condition as the reason to not submit to the test.' (N.T.,
i 8/5/13, pgs. ·J 89-'191 ). Defendant did not rnention a fear or concern of needles to the

Ii officer, .nor did Defendant ask for another form of testing for alcohol. (N.T., 8/5/'13, p.
i I
! I
190).
11

'\ Once at the hospital, but prior to the blood draw, the officer is required by law to

read the Implied Consent Form to all people that are requested to submit to a chemical

test. (N.T., 8/5/13, pqs. 64-65). The Implied Consent form is Form DL 2G issued by

PennDOT. (N.T., 8/5/13. p. 65, Exhibit C-3). Officer vvardle read the DL 26 form to

Defend ant as follows:

---- .. --·-·--·····-----
3
The court gave a cautionary instruction to ihe jury about Defendant's statement to the officer. Tho court
instructed the jury that the evidence can only be considered in assessing the credibitlty of the witness and
it is not to be used as evidence of his guilt or innocence of the crimes charged in this case. {N.T, 8/5/13,
pqs. 189-190).

11
 II
. !
It is my duty as a police officer to inform you that of the
following: You are under arrest for driving under the influence of
alcohol or controlled substance in violation of Section 3802 of the
Vehicle Code.
I am requesting that you submit to chemical test of blood."
If you refuse to submit to the chemical test, your operating
privileges will be suspended for at least ·12 months. If you
previously refused a chemical test, or previously weee convicted of
driving under the influence, you wil! be suspended for up to ·1 s
months. ·
!n addition, if you refuse to submit to the chemical test, and
you are convicted of violating Section 3802(a)(1), relating to
impaired driving of the Vehicle Code, and because of your refusal,
you will be subject to more severe penalty set forth in Section
3804(c) relating to penalties of the Vehicle Code.
These are the same penalties that would be imposed if you
I were convicted of driving with a high rate of alcohol, which included

I l a minimum of 72 consecutive hours in jail and minimum fine of
$'1,000, up to maximum five years in jail and maximum fine of
II $10.000.
You have no right to speak with an attorney or anyone else
before deciding whether to submit to testing. If you request to
11
!
'1
i speak with an attorney 01· anyone else after being provided these
j I warnings, or you remain silent when asked to submit to chemical
11 testing, you will refused (sic) the test resulting in the suspension of
I J
your operating privilege and other enhanced criminal sanctions if
'II I
you are convicted of violating Section 3802(a) of the Vehicle Code,
11
11 (I\JT., 8/5/13, pgs. 65-68, 85 and Exhibit C-3).

After the officer finished reading this to him, Defendant refused to submit to the
I testing. (f\J.T., 8/5/13, pqs. GS and 85). Defendant essentially said, "no." (N.T., 8/5/13,

I,
'1 pgs. 68 ancl 191). Officer Wardle asked him to submit to the chemical testing of blood

II twice. once at the scene of the stop and once at the hospital. (I\LT., 8/5/13, pqs. 68, 84

11 and'191). After Defendant refused to give a sample, the officer took him home. (N.'! .
II
iI 8/5/13, p. GS).

I
I ----·-··--· .. ------
,: At trial. Ofiicer Wardle explained lo the jury that the DL2f3 tcrrn has a blank line in which they handwrite
the substance which they are requesting to test. In this case the substance was blooci. (N.T., 8i5/13, p.
66 and Exhibit C-3).
I

I
 I;
i !

11 Officer Timothy Patrick Pohliq testified that he has been a police officer with Caln
11
'I
j Township Police Department since ·1999. (N.T., 8/5/13, p. 89). He has completed

numerous trainings with the Pennsylvania State Police on identifying people under the
II influence and standardized field sobriety tests. (NT, 8/5/13, pgs. g·J-92). Within the
I
training, test subjects would consume different amounts of alcohol so that they could

view various levels of sobriety and intoxication. (i'J.T., 8/5/13, p. 92).

Officer Pohlig testified that sorne indicia of being under the influence that they

are trained to look for in people include slurred speech, unsteady gait and odor of

alcohol. Jd0 Atthe time of trial he had made almost a hundred DUI arrests throughout

his 15 year career as an officer. (N.T., 8/5/13, p. 9·1). He also had a lot of interactions
'i
I!
with people who were under the influence, but not in a DUI setting. (N.T., 8/5/'13, p.
:I
II O')\
V•-)·
JI
l
He was on duty on January 1, 2013 when he was asked to assist Officer Wardle I
I
with the traffic stop on Thornridge Drive. (N.T., 8/5/13, pgs. 89-90). Officer Pohlig
1,
I11 I observed that Defendant had a staggering gait, he stumbled a bit when he walked, his

I! speech was slurred and he appeared to be under the influence of some sort of
i

iI I substance. (N.T .. 8/5/13, pgs. 90-91 and 93). The officer did not get close enough to

Defendant to smell any alcohol because he was there to assist and needed to keep a

reactionary distance avray from him. (N.T., 8/5/13, p. 93).

Defendant tried to.enqaqe Officer Pohlig in conversation, but the officer did not

respond. (i\J.T., 8/5/13, pgs. 93 and 95-96). Defendant was rarnbllnq about being the

next president and saying "mumbo jumbo." (N.T., 8/5/13, p. 94). Defendant's speech

was slurred and ver''J' incoherent. !d. "It just didn't make any sense." Jsi

13
 lryian Chaudhry, a friend of Defendant for a couple of years, testified that he and

Defendant went to a ~Jew Year's Eve party on December 31, 2012 at a restaurant
I
Defendant's other friend owns .. U,J.T., 8/5/13. pgs. ·109-·110). Defendant picked up Mr. j
IiI Chaudhry and drove him to the restaurant. JJ;L Trlf!J arrived at about 10:00 P.M. (f\J.T.,
I
I
1. 8/5/13. p. 111 ). Defendant introduced him to some people, they ate some food and I
I 1
J then had a drink. kl j

'I Mr. Chaudhry further testified that Defendant owns an entertainment business I
and was comfortable getting on the microphone to engage the crowd. (N.T., 8/5/13,
'1 ,!.·:.. I
j! pgs. 109. 111-i ·12) He testified that Defendant had an alcoholic mixed drink with I
, I I
11
orange juice and drank champagne for the rnirlnight toast. (I\J.T., 8/5/13, pgs. 1 ·12-·114).1

They left the restaurant between midnight and ·1 :00 A.M. (N.T. 1 8/51'13, p. 113).
11

fv1r. Chaudhry was not sure if Defendant was able to safely drive; the restaurant
I
I
owner asked him to drive Defendant, so Mr. Chaudhry drove Defendant's car when they
I
!I
l! iI
I I
left. (N .T., 8/5/13, pgs. ·113-11 S). He knows that Defendant talks a lot when he has

11
had too much to drink and is incapable to safely driving. (i"J.T., 8/5/13, pgs 114-11Ci).
11
They fast went to Mr. Chaudhry's house so that his sister could follow them to
iI
Defendant's house. (N.T., 8/5/13, p. 113). That way Mr. Chaudhry would have a ride

home from Defendant's house in the Thornridge development. (N.T., 8/5/'13, pgs. '113

and 'i15). They arrived at Defendant's house between 1:00 A.. M. and 1:30 AM. (N.T.,

8/5/13. p. 115).

Ruchi Kumar also testified as follows. Defendant is her younger brother and

1,
they live together on Thornridqe Drive. (N,T., 8/5/13, pgs. '117-118). Her family was
1 /
having a get--together at the house on the night in question (New· Year's Eve), but they
I
11

11
ii
11
. I
11

ij: did not serve alcohol (N.T., 8/5/"13, pqs. 1 '18-'119). Defendant left the house about
I, 10:00 P.M. and returned about 1:00 /'\.M. (N.T., 8/5i13, p. ·119). Upon his return,

I!. I Defendant appeared normal and not under the influence of alcohol. kL.
!I
iI: l Ms. Kumar stated that she was with Defendant until about 4:00 /-\.rill. or 4:30
;
'I
I1 A.M. because they were watching their dog and puppies. (N.T., 8/5/13, pgs. 120-121).
11
!I Defendant did not have anything to drink during that time because they do not have i

I'I alcohol in the house. ld.,
-
Thereafter, she went to sleep and did not see what Defendant,
I
il Ii C;-1,.I C.:.after
I \... I t_ "T,.,.,0 r:-'\ . f1·,j1
,i '-) . (N T
I . , t 8/'11'"1 .J') !
'-.• p ·122\ l,
,

i
i I
!i /..;.nne Coswamy testified as follows Defendant is her youngest brother. (N.T.,
1

I
3/5/13, p. '123). On December 31, 20·12 into January 1, 20'13, she was at Defendant's I
i I ,
I. house, where her father also resides. (N.T .. 8/5/13, pgs. ·123-124). When she arrived
11 . 11
!I about 7:00 P.M., Defendant was there and appeared fine and not under the influence of!
I
I alcohol. (N.T., 8/5/13, pgs. 124-125). There is no alcohol in the house. (N.T., 8/5/13, I
I pgs. ·125 and 127-128). Ms. Goswamy stated that her dad does not drink and would I
I not like it if any of his children drank. (N.T., 8/5/13, p, 128j. I
, She stated that Defendant left the house and returned about ·1 :00 A.M. (N.T., II
8/5/13, p. 125). Defendant appeared fine and not under the influence at that time. JiL
Ms. Goswarny \Nas leaving when Defendant returnee! so they only said hello and had

brief contact. (N.T.. 8/5/13, pqs. '125-'!2f3). She did not see him swaying or s!urring his

words. (N.T., 815/13, p. 126). She asked him how he got home and Defendant told her

that a friend dropped him off (N.T., 8/5/13, pgs. 127-128). Ms. Goswarny did not see

Defendant between 1:30 A.,fv1. and 5:30 A.M. (N.T., 8/5/13, p. 128).

15
11

11
Defendant testified as follows. He said he was not driving under the influence of
I11 I drugs or alcohol on January 1, 2013 (N.T, 8/5/13, pgs. 130 and 169). He is a thirty-

!. five year old entertainer and IT director. & He holds multiple certifications in

!I technology, software development and LiteCyc!e. (N.T.. B/5/"13, p. 13'1).

!I r~egarding December 3·1, 2012, Defendant said he was home until 9:00 1::i.rv1.
11
I, (N.T., 8/5t13, p. 132). He left to pick up Mr. Chaudhry ancl drove to Chateau Granieri,

which is a banquet facility owned by his very good friend. (N.T., 8/5/13, pgs. 132 and
I
I
I;
170). Defendant testified that he did not have any alcoholic beverages at his house,
Ii Mr. Chaudhry 's house or while driving to Chateau Granieri that night. (N.T., 8/5/13,
I pgs. 132-'i33).

11 While at the venue, Defendant stated that he hung out and socially networkec!

I
I<
: I
I
I
with the entire clientele base. (N.T., 8/5/'!3, pgs. 132-133 anc! 171). He admitted to

i I havinq a clrink at about 10:30 P.ivl., which he got from the bar with Mr. Chaudhry. (N.T.,1

11
:I: i
8/5/13. p. 134). He had a screwdriver, a Captain and Coke and a charnpag ne toast at I
Ii rnidniqht. (N.T., 8/5/13, pqs. '134-135). He was an ivlC for about a half hour, during
I
which he was tal!dng loudly and chatting up the crowd. l~L
j1 At about ·12:30, Defendant and Mr. Chaudhry left the venue because Defendant
i
had finished up his toasting duties and he wasn't feeling well. (t\J.T .. 8/5/'13, pgs. 135-
I
i I 136). When asked to describe how he was feeling, Defendant stated, "Just wasn't
II' I
I I

I feeling well. I was kind of a little nauseous, exerted a lot of energy. Sornetin-ies when

you scream that loud behind the microphone, it kind of hits your stomach. So I just
I
wasn't feeling well, kind of like cold sweats." (N.T., 8/5/13, pgs. 137-138). Defendant

also testified that the owner of the venue, Venkat Reddy, "likes to bust rny chops a little
11 bit. So he pretty much looked at lryian and said, don't let him drive," (N .T, 8i5/13, pqs

136-137 and 172-173), Mr. Chaudhry drove Defendant's car home. (N .T,, 8/5/13, pqs, I
172-173).
Ii
Defendant testified he did not have any further alcoholic beverages because he i
II I
I

·1 was not feeling well and just wanted to hang out. (N.T., 8/5/"13, pgs. '138 and 174). J

J Once home, he watched his dog and puppies. kl. He left his residence at 5:00 /Uv1. to I
I
J go to WaWa for Tylenol, water and a pack of cigarettes. (N.T., 8/5/13, pgs. ·139 and 'i
Il jI 174). The V1JaWa is a mile to a mile and a half from his house. (N.T., 8/5/13, p. 140).
I
I
Ii On his way back home, Defendant claimed he was driving down G.O. Carlson j

11 Boulevard approaching Municipal Drive doinq the normal speed limit, about 35 or 37 I

111 miles an hour. (NT, 8/5/13, pgs. '140-14.1). He 1.;vas aware that there was a stop sion I
at the intersection. (N.T., 8/5/13, p. 140). He testified that he stopped behind the stop I
I sign without applying his breaks in a hard manner. (N .T, 8/5/13, p. 141), l 1
I, 1

iI He did not see a vehicle to the right side of his vehicle. Id. Defendant testified
11
that he saw a clear intersection without any vehicles. (N.T., 8/5/'13, p. 142). After the
I intersection, he was traveling east and saw police strobe lights turn on from the police

iiI station parking lot. (N.T., 8/5/13, pgs. 14i-142 and 144). He didn't thinic much about it

I because he thought they may be going out on a call, so he continued to travel normally

at about 35 or 37 mph (NT, 8/5/13, p. 145).

I Defendant testified that he continued to travel on G.O. Carlson Boulevard until

he made a left turn into the Thornbridqe Development. Js:t He then noticed the police

iiqhts and pulled over. (N.T., 8/5/13, p. 146). He exited his car because Officer Wardle

I
I pulled up behind him even though he knew that the standard procedure when your
I I
!I, I
11

Ii 17
 vehicle is stopped by police that you are to not exit the vehicle. (N.T., 8/5/13, pgs. 148

and 177). Defendant asked the officer if everything was okay. (N.T .. 8/5113, p. '148).

Defendant admitted to the officer that he had tv110 drinks at a friend's place, the mixed

drink and champagne. (N.T., 8/5/13, pgs. 148-149). Defendant stated that he tried to ;
i
'
say something to Officer Pohlig because he has run into him on multiple occasions in I
I the neighborhood. (i\l.l,:, 8/5/13, p. 149). He said, "I run into a lot of the guys, a lot of ·
iI I

11
i I
them p:J8~::~:~:: :::;i~:.:ut::~::g15 ~:;c~~cv::;:I::;:v: ::::n::~'t :,: was running J
I

I
11 President of the United States. (f\J.T, 8/5/13, pgs. 162 and 164). When asked why he Ii
11 did it, Defendant responded as follows: ";\t that point l was pretty charged. I could I
11 have told him I was a spawn of satan. It would have been okay because it wouldn't I
I have really made any difference. It vvas more of a sarcastic remark, rather than me just [
I 1 1
I i I
II [ kind of randomly going off on a tangent. Multiple requests onto the entire situation of I

I .I the night. nothing was really said. My word meant absolutely nothing." (N.T., 8/5/13, I
1 '1·
pgs. 162-'163). Defendant said he was frustrated. (N.T., 8/5/13, p. 164). Defendant ,'

11
' also aclrnitted that he told the officer several times that he could call President Obama

to explain the situation. (N.T., 8/5/13, pgs. ·155 and 177-181).
I
Defendant testified that after the officer informed him that he was going to take

him for blood work, he told the officer that he "cannot go underneath the needle"
I
because he was battling a skin disorder with a rash. (N.T., 8/5/13, pgs. 165-'166 and

·181-182). Photos Defendant had taken of his rash on January 4, 20131.,vere admitted

into evidence. (f'J.T., 8/5/'13, pqs. i66 and ·167). He said they reflected what his body

looked like on January 1, 2013. (N.T., 8/5/13, p. ·167).

18
11

When asked why he was afraid to go under the needle, Defendant replied,
I
11 "Further infections. f\.~y mother passed away from an infected needle from a dialysis

center by getting blood MRSA when she had very similar rashes on her body. And she

II was diabetic. So I wasn't sure what these were at the time." (N.T., 8/5/13, p. 168).
I
I
!I·i I
Defendant acknowtedqed that Officer Wardle read him the !mplied Consent Form at the I
i
hospital and admitted that he refused to do the blood test. (N .T., 8/5/13, pgs. 169, 181 I
I, and 186). I

: 1 Defendant stated he Wc1S very concerned about getting a driving under the
:i' !
i I
influence charge. (NT., B/5/'i3, p. 184). He is a permanent resident and a DUI
11
i I conviction would affect his residency status. (t,J.T., 8/5/13, p. 185). Even though he
II knew that the only way he could prove that he was not under the influence was by
!I
Ii giving a sample of his blood, he was not willing to submit to the test. ls;L
I I
li
The crime of driving under the influence is set forth in 75 Pa.C.S ...6... § 3802. !t
11

states that "An individual may not drive, operate orbs in actual physical control of the
I movement of a vehicle after imbibing a sufficient amount of alcohol such that the
I
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 ).

Pennsylvania courts have heid that "Subsection 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

19
I!
11 to the consumption of alcohol." Cormnonwealthv c., Teerns, 74 A.3d '142, 145
11
ii (Pa.Super. 20-13), quoting 0n•Dill9DY'£~{i)t!]_:[,_~~ciid~. 985 /\.2d 871, 1379 (Pa. 2.009).
I I
i!
VVith respect to the type, quantum, and quality of evidence required to prove a

!i II qeneral impairment violation under Section 3802(a)(1 ), the Pennsylvania Supreme
!
Court in Segida set forthlhe following:
I
l! I Section 3802(a)(1), like its predecessor [statute], is a
general provision and provides no specific restraint upon the
I! Commonwealth in the manner in which it may prove that an
11 accused operated a vehicle under the influence of alcohol to a
iI degree which rendered him incapable of safe drivtng .... The types
of evidence that the Commonwealth may proffer in a subsection
11 3802(a)('1) prosecution include but are not limited to, the following:
tile offender's actions and behavior, including manner of driving
i and ability to pass field sobriety tests; demeanor, including toward
.1
the investigating officer; physical appearance, particularly
!I' i bloodshot eyes and other physical signs of intoxication; odor of
1' alcohol, and slurred speech. Blood alcohol level may be added to
:! II
this list, although it is not necessary and the two hour time limit for
11 measuring blood alcohol level does not apply. Blood alcohol level is
, 1 admissible in a subsection 3801 (a)('l) case only insofar as it is
relevant to and probative of the accused's ability to drive safely at
I the time he or she was driving. The weight to be assiqned these
various types of evidence presents a question for the fact-finder,
I 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 tile inability of the individual to drive safely
clue to consumption of alcohol-not on a particular blood alcohol
level.

Ii2e1J1s, 74 A.3d at 145, quoting Seqida, 985 A.2d at 879.

Examining the evidence in the. record, viewed in the light most favorable to the

Commonwealth as verdict winner, it is abundantly clear that there was sufficient

evidence to support the jury's finding that Defendant was guilty of driving under the

influence of alcohol. Each element of the crime was established beyond a reasonable

doubt.

20
 I'

11
Ii
II I
1 '1
Defendant's actions and behavior, including manner of driving and failing to pass

iI field sobriety tests; his demeanor at the scene; his unsolicited comments and his

II physical appearance establish that he was under the influence and incapable of safe

· 1
driving. Specifically, his driving at a high rate of speed, applying the brakes heavily at

the last second, rolling through the stop sign, failing to acknowledge the officer's
! I
motions to stop, not following the officer's instruction to get back in the car, unsteady
II I manner, swayinc, slurred speech, the odor of alcoholic beverage, his bizarre questions
I I
Il
11
and statements to the officer and the failed field sobriety tests establish that Defendant

I,· I was driving a vehicle when he was incapable of safely doing so due to the consumption

of alcohol.
II!' I. It is abundantly clear that the jury rejected Defendant's version of the events and
I
I
i, 1

iI found the other witnesses to be credible. As set forth above, the fact-fin de, is free to I
Ii believe all, part or none of the evidence presented. The jury's determination that
I
iI
11 Defendant was guilty of driving under the influence was supported by sufficient
I'I.,1 evidence and Defendant's argument on appeal is without merit.

11
Weight Qf the Evidence: I
i I
li "A motion for new trial on the 9rm.:nds that the verdict is contrary lo the weight of I
Ii i
11
the evidence, concedes that there is sufficient evidence to sustain the verdict." i
I
! i

JI
~.QlTlt}J.Q!J.\v_0_~11lLY..:.....Yi.l9.DJ§L 744 ;;_2d 745, 751 (Pa. 2000), citing Comrr1onwealth v .
11
' White.rn_gn, 485 A.2d 459'.(Pa.Super. 1984). "Thus, the trial court is under no obligation

to view the evidence in the light most favorable to the verdict winner." Wigmer, 744

,, "'
..1-\.L.0 at -n::1·
ci / ._) , · .. .; r
Clllllg Tibb
I ·. Fi ,QJJ_.9.,
S v. id 4c:-
:){ U .:::i.~ 31 , ~)\,
')8 102
. ,S . Ct . 22-11, (··19s2· ), [I.- 11 , 1,02

S.Ct. 2211. An allegation that the verdict is against the weight of tile evidence is

21
!I
i'1 l
i;
11 addressed by and al the. discretion of the trial court. y'Vi;-Jrne[. 744 A.2d at 751-752,
Il i
i I citing Commonwealth v.. Brown, 648 A.2d ·1177 (Pa. 1994).
I
,A. new trial should not be wanted due to a mere conflict in the testimony or
i
I
I I
I because the judge on the same facts would have arrived at a different conclusion. \
I

I \C:/Jg_rner, 744 A.2d at 752, citing Thomp..§.Q.!J.L(:.lt.Y of P_tJ.iladelphia, 493 A.2d 669, G73 I
Ij (Pa. 1985) "A trial judge must do more than reassess the credibility of the witnesses I
II I I
and allege that he wouid not have assented to the verdict if he were a juror. Trial ·
iI: I . I
, I .iudqes,
~ in reviewing a claim that the verdict is against the weiqht of the evidence do not I I
\i
11
sit as the thirteenth juror. Rather, the role of the trial judge is to deterrnme that
II, I I
I I I
1 · 'notwithstanding all the facts. certain facts are so clearly of greater weiqht that to i~inore I
i11 I i
\i
! I
them or to give them equal weiqht with all the facts is to deny justice." ld. !
; 1
I!
i
"'[P.,J new trial should be awarded when the jury's verdict is so contrary to the
11

j I evidence as to shock one's sense of justice and the award of a new trial is imperative

iI so that right may be given another opportunity to prevail." Commonwealth v. Sullivan,
II
1 •
820 A.2d 795, 806 (Pa.S~1per. 2003), app. denied, 833 .A..2d 143 (Pa. 2003), quoting
I Ii
Ii l ~omrnonwec:1lth v. Goodvvine, 692 t.... 2d 233, 236 (Pa.Super. 1997), app. denied, 700

11
11, I l\.2d 438 (Pa. 1997). Stated another way, the evidence must be "so tenuous, vague
11
'
and uncertain that the verdict shocks the conscience of the court.'" .§_ullivan, 820 A.2cl

I at 806, quoting Cornrnonwe~lib...Y-'-'=£, 640 A.2d 1336, 1351 (Pa.Super. 1994), app.

11 denied, 655 A.2d 986 (P?. 1994).
11
, 1
,I In addition, the Pennsvlvania Sup1·eme Court has been clear that "appellate
Ii
iI. I review of a weiqht claim is a review of the exercise of discretion, not of the underlying
! l
i'
I
I.
!Ii I
11 ??
11

11 question of whether the verdict is against the weight of the evidence." §_l!i1[vaJ_1. 820
i
I,
I
J\ 2d at 806, quoting VVidQ1er, 744 Jl,.2d at 75·1-752.
iI Accordingly, this court applied the above standard when reviewing the evidence
1 ·
I I
11 presented at trial. Since in this claim, Defendant conceded that there was sufficient
iI I
II
1I' 1 evidence to support each material element of driving under the influence, we examined I
I, the testimony of the witnesses and evidence presented to determine if the evidence I
111
I! was so tenuous, vague and uncertain that the verdict shocks the conscience of the
i!
! I
I

11 court.
il )
The Pennsylvania Supreme Court has clearly said that "it is the trial court's Ij

I II sense of justice that must be shocked before a new trial may be granted on a claim that I'
II I
Ii the verdict was against the weight of the evidence." .§uliiv~in, 820 /.\.2d at 807, n. ·11, !
I!I citing, ~rown, 648 A.2d at '1 rn·i (Pa. 1994). After review of the evidence, this court
II
I! unequivocally determines that the guilty verdict of driving under the influence is not !
! against the weight of the evidence. To the contrary, the evidence strongly supports the
!
li
I! verdict. The jury's verdict on this charge is not contrary to the evidence as to shock I
Ij one's sense of justice. For the above listed reasons, Defendant is not entitled to a new jl

I
I trial. Accordingly, this issue on appeal is without merit. I
I'I:
I I
BY THE COURT:
11
11
!I
11
, I,
I

.1
!I ·7 l. / .
I,i I D!\TE: J/ . :; I IC~-
I
?
-----
I

I
11
'')~
L ,.J
11