J-A24009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG DORIAN HALL :
:
Appellant : No. 389 MDA 2018
Appeal from the Judgment of Sentence February 14, 2018
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001229-2016
BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 21, 2018
Craig Dorian Hall appeals from the judgment of sentence entered
February 14, 2018, in the Court of Common Pleas of Lebanon County, to serve
a term of imprisonment of six months to two years less one day of
incarceration, after he was found guilty by the trial judge of driving under the
influence (DUI) (highest rate of alcohol), DUI (general impairment), driving
on roadways laned for traffic, and careless driving.1 Hall contends the
evidence presented at his stipulated bench trial was insufficient to prove him
guilty of DUI (highest rate of alcohol), because the Commonwealth did not
establish his blood alcohol content (BAC) in whole blood. Based upon the
following, we affirm.
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1 75 Pa.C.S. §§ 3802(c), 3802(a)(1), 3309(a), and 3714(a), respectively.
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The non-jury trial in this case consisted of a Stipulation (Exhibit 1), with
four exhibits, numbered one through four, entered into evidence. The
Stipulation and exhibits set forth the following:
(1) On April 12, 2016, at approximately 7:30 P.M., [Hall], was
charged with two (2) counts of Driving Under the Influence
of Alcohol and two summary offenses by Trooper Manuel
Cabrera-Maldonado of the Pennsylvania State Police.
(2) The charges relate to an incident that occurred on or about
11:35 A.M. on December 26, 2015 on [R]oute 934,
approximately four (4) miles south of Jonestown Road in
East Hanover Township, Lebanon County, Pennsylvania,
where Trooper Cabrera-Maldonado has jurisdiction.
(3) On December 26, 2015 at 11:35 A.M., Trooper
[Cabrera-]Maldonado of the Pennsylvania State Police
responded to the scene of a single vehicle accident at PA-
9[34] in Lebanon County, PA.
(4) Upon arrival, Tpr. [Cabrera-]Maldonado found [Hall’s]
vehicle, a gold 2000 Chevrolet Malibu with disabling damage
to the front of the vehicle.
(5) Tpr. [Cabrera-]Maldonado observed an ambulance on scene
and entered the rear of the ambulance and observed [Hall]
being treated for injuries.
(6) Tpr. [Cabrera-]Maldonado questioned [Hall] who admitted
to being the driver of the aforementioned vehicle, and [Hall]
accurately provided his name and date of birth.
(7) Tpr. [Cabrera-]Maldonado further questioned [Hall] who
provided a thorough description of the accident.
(8) Tpr. [Cabrera-]Maldonado observed the strong odor of
alcohol emanating from [Hall’s] breath and that he had
slurred speech and blood shot glassy eyes.
(9) Tpr. [Cabrera-]Maldonado questioned [Hall] if he had
consumed an alcoholic beverage prior to him driving and
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[Hall] related the day before he had one-half of a case of
beer, but denied he consumed beer before driving.
(10) [Hall] was transported to the Penn State Hershey Medical
Center for treatment for his injuries sustained during the
vehicle crash at the conclusion of Tpr.
[Cabrera-]Maldonado's questions.
(11) [Hall’s] blood was drawn pursuant to Tpr.
[Cabrera-]Maldonado's request memorialized in a Law
Enforcement Agency Certification of Request for Blood or
Urine Testing under the Pennsylvania Vehicle Code.
(Attached hereto as Exhibit 1).
(12) Hershey Medical Center staff drew [Hall’s] blood and
submitted it to the Department of Pathology and Lab
Medicine for toxicology analysis.
(13) At all times [Hall’s] blood sample was appropriately
maintained and preserved for chain of custody purposes.
(14) Penn State Hershey Medical Center's Department of
Pathology and Lab Medicine is approved to determine the
Blood Alcohol Content (BAC) of blood serum samples under
the Vehicle Code.
(15) Tests for BAC of [Hall’s] blood serum sample were certified
by Monica Straub, a Supervisor in the Automated Testing
Laboratory in the Chemistry Department at the Hershey
Medical Center at 12:41 [P.M.] on December 26, 2015.
(16) Ms. Straub has been appropriately educated and trained to
conduct such work. (Attached hereto as Exhibit 2).
(17) The testing revealed [Hall’s] blood serum to possess a 391
mg/dL ethanol level. [Hall’s] medical records memorialize
the results of the test. (Attached hereto as Exhibit 3).
(18) Ms. Straub would testify that BAC is measured in g/dL.
(19) Ms. Straub would testify that dividing a mg/dL unit of
measurement by 1,000 results in a g/dL measurement,
therefore dividing a blood serum ethanol level measured in
mg/dL by 1,000 would give the sample owner's BAC.
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(20) Ms. Straub would testify that Defendant's BAC was .391.
(21) Ms. Straub's testimony would be consistent with the
statements contained within paragraphs fifteen (15)
through nineteen (19).
(22) Defendant admits to the allegations contained in the
Criminal Information filed in the above–captioned matter as
an accurate description of the events in question. (Attached
hereto as Exhibit 4).
Stipulation, Commonwealth Exhibit 1, 11/20/2017.
The trial judge found Hall guilty of the above stated crimes, and upon
the trial court’s finding of guilt, Hall’s counsel made an oral motion for acquittal
on the DUI – highest rate of alcohol charge, on the basis that Hall’s blood
alcohol reading was not established in whole blood.2 The trial court denied
the motion. Thereafter, the trial court sentenced Hall. Prior to sentencing,
Hall’s counsel renewed his oral motion for judgment of acquittal of the DUI –
highest rate of alcohol charge. The trial court again denied the motion, and
sentenced Hall. This appeal followed.3
The sole issue presented in this appeal is a challenge to the sufficiency
of the evidence to sustain the conviction for DUI (highest rate of alcohol). Our
standard of review of a sufficiency claim is, as follows:
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2Pursuant to Pennsylvania Rule of Criminal Procedure 606, “A defendant may
challenge the sufficiency of the evidence to sustain a conviction of one or more
of the offenses in one or more of the following ways: … a motion for judgment
of acquittal made orally immediately after the verdict.” Pa.R.Crim.P.
606(A)(4).
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The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the [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. Haight, 50 A.3d 137, 140 (Pa. Super. 2012) (citation
omitted).
A conviction of DUI (highest rate of alcohol) requires proof that (1) the
defendant was driving, operating, or in actual physical control of the
movement of a vehicle, and (2) the defendant's blood alcohol content was
0.16% or higher within two hours of driving, operating, or being in control of
the vehicle. 75 Pa.C.S. § 3802(c). Hall concedes he was operating a vehicle
within two hours of when his blood was drawn at the Penn State Hershey
Medical Center. However, Hall contends the evidence stipulated to by the
parties was insufficient because the Commonwealth only presented blood
serum testing results and therefore, the trial court could not determine Hall’s
blood alcohol level, in whole blood, beyond a reasonable doubt. In support,
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Hall cites Commonwealth v. Karns, 50 A.3d 158, 161 (Pa. Super. 2012),
for the proposition that “evidence of testing performed on blood serum,
plasma, or supernatant, ‘without conversion, will not suffice.’” Hall’s Brief at
11.
Hall claims the Stipulation contains no reference to Hall’s blood serum
being converted, and the words “convert,” “conversion factor,” and “whole
blood” are not found in the stipulated facts. Hall argues there is no mention
that Ms. Straub’s dividing the blood serum reading by 1,000 in order to change
the unit of measurement from milligrams per deciliter (mg/dL) to grams per
deciliter (g/dL) was a conversion factor. Hall states that dividing the serum
results by 1,000 changed the unit of measurement for presenting the blood
serum results. Hall asserts the division “did not convert his serum results to
whole blood results; it simply changed the formatting of the presentation.”
Hall’s Brief at 14.
The Commonwealth takes the position that the Stipulation and exhibits
set forth the testimony that would have been provided by Monica Straub. The
Commonwealth maintains:
The stipulation provided clear evidence of a conversion factor to
[Hall’s] BAC from serum. As stipulated by the parties, the
conversion factor that would be testified to by Ms. Straub would
be to divide the serum alcohol concentration by 1,000 to
determine the correct BAC. Defense did stipulate that [Hall’s] BAC
was .391.
Commonwealth’s Brief at 9.
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The trial court found “[t]he Stipulation sets forth that Ms. Straub would
testify to the results of testing on [Hall’s] blood serum and explained how that
result would be converted to indicate [Hall’s] accurate blood alcohol content.
(See Stipulation, at Paras. 17-20). The toxicology report confirms this result.
(Exhibit 3).” Trial Court Opinion, 4/30/2018, at 5.
Based on our review of the record, we conclude there is no basis upon
which to disturb the judgment of sentence. By entering into the Stipulation,
Hall agreed with Ms. Straub’s calculations, and he agreed she would testify
“Defendant’s BAC was .391” — without reservation. Stipulation, supra, ¶20.
Moreover, apart from Hall’s agreement with Ms. Straub’s proposed testimony,
Hall agreed to the allegations in the Information that he
unlawfully drove operated or was in actual physical control of a
vehicle, after imbibing a sufficient amount of alcohol such that
the alcohol concentration in the individuals blood or breath
was at least .16% or higher, to wit .391%, within two hours
after the individual has driven, operated, or been in actual physical
control of the movement of the vehicle.
Stipulation, supra, Exhibit 4 (Information) (emphasis added); see also,
Stipulation, supra, ¶22. Accordingly, the evidence of record was sufficient to
convict Hall of DUI – highest rate of alcohol.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2018
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