Com. v. Riley, D.

J-S61009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

DARIN JON RILEY,

Appellant No. 106 EDA 2018

Appeal from the Judgment of Sentence Entered October 24, 2017
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000222-2016

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 17, 2018

Appellant, Darin Jon Riley, appeals from the judgment of sentence of six

months’ probation and fines, imposed after he was convicted, following a non-

jury trial, of driving under the influence of alcohol - general impairment (DUI),

75 Pa.C.S. § 3802(a)(1), and careless driving, 75 Pa.C.S. § 3714. We affirm.

Appellant raises two issues for our review:
I. Whether there was sufficient evidence to support the [t]rial
[c]ourt’s finding of guilt[] on Count 1, DUI General
Impairment, when [the] evidence failed to establish that []
Appellant was incapable of safe driving[?]

II. Whether there was sufficient evidence to support the [t]rial
[c]ourt’s finding of guilt on Count 3, Careless Driving, when
the evidence failed to establish that [] Appellant operated
his vehicle with careless disregard for the safety of others
or property?

Appellant’s Brief at 4.
J-S61009-18

We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough opinion of the

Honorable Roger N. Nanovic of the Court of Common Pleas of Carbon County.

We conclude that Judge Nanovic’s well-reasoned opinion accurately disposes

of the issues presented by Appellant. See Trial Court Opinion (TCO), 2/8/18,

at 1-16.1 Accordingly, we adopt Judge Nanovic’s opinion as our own and

affirm the judgment of sentence on that basis.2

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/17/18

____________________________________________

1 We recognize, however, that Judge Nanovic incorrectly states that Appellant
was stopped at 6:30 a.m., see TCO at 11 n. 7., when the record demonstrates
that Appellant was stopped at 6:30 p.m., see N.T. Trial, 5/8/17, at 10.
According to Appellant, this mistake calls into question the trial court’s factual
finding that “it was … dusk outside” at the time of the stop. Appellant’s Brief
at 18. Appellant is incorrect. The arresting officer testified that it was dusk
at 6:30 p.m. when he stopped Appellant’s vehicle. See N.T. Trial at 17.
Additionally, the video recording of the stop, taken by the officer’s dashboard
camera, corroborates the officer’s testimony. Therefore, the record supports
Judge Nanovic’s conclusion that it was dusk when the stop occurred.

2 We do not adopt the portion of Judge Nanovic’s opinion which addresses a
third issue raised by Appellant in his Pa.R.A.P. 1925(b) concise statement, but
which Appellant has abandoned on appeal to this Court. See TCO at 17-20.

-2-
 Circulated 11/20/2018 01:32 PM

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
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Cynthia Dyrda-Hatton, Esquire Counsel for the Commonwealth
Assistant District Attorney

Matthew J. Rapa, Esquire Counsel for the Defendant

MEMORANDUM OPINION

Nanovic, p,J. - February 8, 2018

Darren Jon Riley ("Defendantu) has appealed from the

judgment of sentence entered on October 24, 2017, for his

convictions of driving under the influence (general impairment}1

and careless dri ving2 fol lowing a nonj ury trial held on May 8,

2017. For the reasons which follow, we conclude Defendant's

grounds for appeal are without merit.

PROCEDURAL AND FACTUAL BACKGROUND

On September 4, 2015, at approximately 6: 30 A. M., Trooper

Mark E. Bower of the Pennsylvania State Police initiated a

traffic stop of a vehicle being driven by Defendant eastbound on

State Route 248 for excessive tinting of the front passenger and

driver side windows which obstructed his view into the interior

75 Pa.C.S.A. s 3802(a) (1).
2
75 Pa.C.S.A. § 3714(a).

[FN-3-18]
1

'
of the vehicle. (N.T., 5/8/17, pp.9-10). After Trooper Bower

activated his overhead lights, Defendant exited Route 248 at the

Bowmanstown Exit and brought his vehicle to a stop on the

shoulder of East Lizard Creek Road. Trooper Bower noted that

there was a delayed response between when he activated his

lights and Defendant pulled over. (N.T., 5/8/17, p.40).

Trooper Bower requested to see Defendant's driver's

license, registration and proof of insurance, which Defendant

provided. (N . T . , 5I8I 1 7 , pp . 12 , 29, 44) , During this initial

contact, Trooper Bower detected a strong odor of alcohol

emanating from the vehicle, noticed that Defendant's eyes were

glassy and bloodshot, and that his clothing was a little

disheveled, and observed a front seat female passenger in

Defendant's vehicle. (N.T., 5/8/17, pp.12-14). In response to

Trooper Bower's inquiry from where Defendant was coming,

Defendant stated he was coming from the BoatYard Bar where he

admitted to having two beers with dinner. (N.T., 5/8/17, p.13).

At this point, Trooper Bower noted that Defendant's speech was

slightly slurred and hesitant, (N . T, , 5 I 8 I 1 7, pp . 13, 2 7, 58 -

59) .

After verifying through use of the computer in his patrol

car the information Defendant had provided, Trooper Bower

returned Defendant's documentation and requested Defendant to

(FN-3-18]
2
exit his vehicle to conduct field sobriety tests. As Defendant

did so, Trooper Bower noted that Defendant had difficulty

getting out of the vehicle - he held on to the vehicle's door

for support - and was unsteady on his feet. (N,T., 5/8/17,

pp.15, 29, 47). Defendant commented to the Trooper that he had

a bad back. (N.T., 5/8/17, p.15).

Trooper Bower had Defendant walk to the rear of Defendant's

vehicle - to the area between Defendant's vehicle and the police

cruiser - to perform the field sobriety tests. As Trooper Bower

fallowed Defendant, the strong odor of alcohol Trooper Bower

detected earlier was now noted to be coming directly from

Defendant and Defendant was observed having some difficulty

walking around the rear of his vehicle. ( N. T. , 5I8I 17 , pp. 15,

29-30, 50). The area Trooper Bower had selected for the field

sobriety tests was dry, flat, and even, and there were no

adverse weather conditions. (N.T., 5/8/17, pp.17-18).

In addition to administering a horizontal gaze nystagmus

(HGN) test and portable breath test (PBT), ·both of whose results

were inadmissible and therefore not disclosed at trial, Trooper

Bower instructed and demonstrated for Defendant the "walk and

turnn and "one-legged stand" field sobriety tests. (N. T.,

5/8/17 I PP• 18-22) , During Defendant's performance of each of

these tests, Trooper Bower noted multiple clues of intoxication,

[FN-3-18]
3
 including Defendant's failure to follow instructions, loss of

balance, swaying, walking off the line, and walking backwards

twice to maintain his balance. (N.T., 5/8/17, pp.30-31, 51-56;

Conunonwealth Exhibit No .1 Intoxication Worksheet) . 3 Several

times during these tests, Defendant again advised Trooper Bower

that he had a bad back. (N.T., 5/8/17, pp.17, 21-22, 31, 47).

Trooper Bower next placed Defendant under arrest for

driving under the influence and transported Defendant to the

Palmerton Hospital for chemical testing of Defendant's blood

which Defendant consented to.

Trooper Bower was the only witness at the trial held on May

8, 2017. Defendant was present but did not testify. At this

trial, Trooper Bower expressed his opinion, based in part on his

training in administering field sobriety tests and contact with

3 With respect to these two field sobriety tests, in addition to describing
his observations elsewhere throughout his testimony, Trooper Bower testified
as follows:

Q ... As a result of doing the walk-and-turn, what were your
observations and did you notice that there [were) any clues noted?
A. Yes. Based on the walk-and-turn, the individual clearly did an
improper turn. He stopped walking, took two steps back. He missed
heel to toe. He stepped off the line and he raised his arms, and if
you raise your arms, it means you can't keep your balance because
the one thing we look at as far as keeping your balance is if you
keep your hands at your side.
Q. And the one-leg stand test?
A. The one-leg stand, he swayed and he puts his foot down. He
actually raised his arm once. I did not check that, but he did
raise his arm in the beginning. I had to re-tell him to put his
hands down by his side.

(N.T.1 5/8/17, pp.32-33),

[FN-3-18)
4
 other individuals who were determined to be under the influence,

that Defendant was under the influence of alcohol at the time of

the traffic stop and was incapable of safe driving. (N.T.,

5/8/17, pp.7-9, 33-34, 62-63). Trooper Bower further testified

that Defendant's body movements and speech at the time of trial

exhibited no difficulty with balance or slurred speech, in

contrast to what he had observed at the time of the stop.

(N.T., 5/8/17, pp.25-26). Finally, a DVD of the stop taken from

a camera mounted on the dash board of Trooper Bower's cruiser

was placed in evidence and viewed by the court during the trial.

At the conclusion of Defendant's bench trial, we found

Defendant guilty of the charges of driving under the influence

of alcohol to a degree which rendered him incapable of safe

driving, careless driving and windshield obstruction (sun

screening} . 4 Defendant was acquitted of the summary offense of

reckless driving. 5 On October 24, 2017, Defendant was given a

six-month probationary sentence and a fine of $300. 00 for the

driving under the influence offense and fined $25. 00 each for

careless driving and driving with a windshield obstruction. No

4 75 Pa.c.s.A. § 4524(e) (1). This conviction is not at issue in the instant
appeal.
5 75 Pa.C.S.A. § 3736{a). Additionally, at the outset of trial the
Commonwealth elected not to pursue a second driving under the influence
offense, having a blood alcohol concentration of at least 0.08 percent but
less than 0.10 percent within two hours of driving {75 Pa.C.S.A, §
3802 (a) (2)), the results of Defendant's blood alcohol content having been
suppressed pursuant to our order dated September 13, 2016, on the basis of a
Birchfield motion.

(FN-3-18)
5
 post-sentence motions were filed. Defendant's direct appeal to

the Pennsylvania Superior Court was filed on November 16, 2017.

Defendant raises two primary issues on appeal: (1) that

the evidence was insufficient to sustain his convictions for

driving under the influence and careless driving, and (2) that

the court "improperly shifted the burden of proof to him when

determining whether back injury affected his performance during

field sobriety testing." See Defendant's Concise Statement of

Matters Complained of on Appeal filed on December 18, 2017.6

DISCUSSION

Sufficiency of the Evidence

The elements of the offense of driving under the influence

of alcohol (general impairment) require the Commonwealth to

prove that the Defendant "was driving, operating or in actual

physical control of the movement of a vehicle during the time

when he [ ) was rendered incapable of safely driving due to the

consumption of alcohol." Commonweal th v. Teems, 74 A. 3d 142,

145 {Pa.Super. 2013) (quoting Commonwe2.lth v. Segida, 985 A.2d

8 71, 87 9 (Pa. 2009) (holding that the offense of driving under

6
By order dated November 17, 2017, we directed Defendant to file a concise
statement of the matters he intended to raise on appeal within twenty-one
days. Although this concise statement was not timely filed within this
period, we understand this delay was attributable to delay by the Clerk of
Courts' office in entering our order and having it rnai led to Defendant's
counsel. Accordingly, Defendant should not be held responsible for the delay
in filing his concise statement, and the issues raised therein should be
addr�ssed.

[FN-3-18]
6
the influence set forth at 75 Pa.C.S.A. § 3802(a) {1) is an \\at

the time of driving" offense)), appeal denied, 79 A.3d 1098 (Pa.

2013) . For careless driving, the elements are that the

Defendant was driving a vehicle in careless disregard for the

safety of persons or property. 75 Pa.C.S.A. § 3714(a).

The standard of review for a sufficiency claim is well-

settled:

A challenge to the sufficiency of the evidence is
a question of law, subject to plenary review.
When reviewing a sufficiency of the evidence
claim, the appellate court must review all of the
evidence and all reasonable inferences drawn
therefrom in the light most favorable to the
Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it
establishes each element of the crime charged and
the commission thereof by the accused, beyond a
reasonable doubt. The Commonweal th need not
preclude every possibility of innocence or
establish the defendant1s guilt to a mathematical
certainty. Finally, the 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.

Commonwealth v. Teems, 74 A.3d at 144-45 (quoting Commonwealth

v. Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010)).

It is not within the province of [the reviewing
court] to re-weigh the evidence and substitute
[its] judgment for that of the fact-finder. The
Commonwealth's burden may be met 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.

[FN-3-18]
7
Commonwealth v. Mobley, 14 A. 3d 88 7, 889-90 (Pa. Super. 2011)

(quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super.

2010)).

(1) Driving Under the Influence

Here, Defendant was convicted of driving while under the

influence of alcohol to a degree that rendered him incapable of

safe driving. 75 Pa.C.S.A. § 3802(a) (1).

In order to prove a violation of this section,
the Commonwealth must show: (1) that the
defendant was the operator of a motor vehicle and
(2) that while operating the vehicle, the
defendant was under the influence of alcohol to
such a degree as to render him or her incapable
of safe driving. 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)

(emphasis added) (quoting Commonwealth v. Palmer, 751 A.2d 223,

228 (Pa.Super. 2000)), appeal denied, 841 A.2d 531 (Pa. 2003}.

Additionally,

[w] i th respect to the type, quantum, and quality
of evidence required to prove a general

[FN-3-18]
8
 impairment violation under Section 3802(a){l),
the Pennsylvania Supreme Court in Segida
continued:

Section 3802 { a) ( 1), like its predecessor
[statute], is a general provision and
provides no specific restraint upon the
Commonweal th 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 offender1s
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 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.

Commonwealth v. Teems, 74 A.3d at 145 (quoting Commonwealth v.

Segida, 985 A.2d at 879)).

[FN-3-18)
9
 In this case, there is no evidence of erratic driving or

the occurrence of driving infractions before the traf fie stop.

(N.T., 5/8/17, pp.38-39, 41-42, 62). Notwithstanding the

absence of such evidence, it needs to be emphasized that

"[e]vidence of erratic driving is not a necessary precursor to a

finding of gui 1 t under the relevant statute." Commonweal th v.

Mobley, 14 A. 3d at 890. Rather, "[t)he Commonwealth may prove

that a person is incapable of driving through the failure of a

field sobriety test." Id.

In Mobley, the Superior Court

found the evidence sufficient to prove Mobley was
incapable of safely driving his vehicle, even
though he was not driving erratically before
being stopped by police, where Mobley failed four
field sobriety tests, was disoriented, exhibited
slow speech, and refused to submit to a chemical
blood test. Additionally, an odor of alcohol
permeated from Mobley's person when he exited his
vehicle.

Commonwealth v. Brown, 2017 WL 2610029 *3 (Pa.Super. 2017)

(citations omitted). In Mobley, the defendant also failed to

come to a complete seep at a stop sign. Commonwealth v. Mobley,

14 A.3d at 889.

By comparison, and similar to the facts in Mobley, here

Defendant failed two field sobriety tests, exhibited slurred and

hesitant speech, had glassy and bloodshot eyes, and had a strong

odor of alcohol emanating from his vehicle and from his person

(FN-3-18)
10
 after he exited the vehicle. Additional facts not present in

Mobley, but present here, include Trooper Bower's observations

that Defendant needed to hold onto the car door to exit his

vehicle and was unsteady on his feet before any field sobriety

tests were conducted; that when Trooper Bower requested

Defendant's license and registration, Defendant had difficulty

in retrieving these i terns and rather than pulling these cards

from his wallet as was requested, Defendant handed the trooper

his entire wallet, which Trooper Bower interpreted as a cue that

Defendant would have difficulty retrieving the items alone

(N.T., 5/8/17, pp.12, 28-29, 44, 59); that Defendant admitted to
7
consuming two beers with dinner before the stop; and that the

7 Although no evidence was elicited as to when the Defendant had dinner, the
stop was at 6:30 A.M. and, in all likelihood, at least six or seven hours
after Defendant would have had dinner. If this is true, this clearly throws
doubt either on how much Defendant had to drink or when he last consumed
alcohol, or perhaps both.
In the context of inferences to be made from circumstantial evidence, the
Pennsylvania Supreme Court in Segida in reversing the Superior Court's
determination that the evidence was insufficient to establish when the
Defendant had been driving and hence whether he was incapable of driving
safely at the time that he was driving, stated that the fact-finder is not
required to suspend common sense and that the arresting officer's testimony
that "it was 'doubtful' that the accident had occurred two or three hours or
even ten minutes prior to his arrival on the scene 'due to traffic on the
road,'u was sufficient to establish that Defendant had been driving his
vehicle shortly before the officer's arrival. This inference, combined with
evidence of the strong odor of alcohol coming from Defendant, Defendant's bad
performance on chr ee field sobriety tests, Defendant's high blood alcohol
concentration, and the occurrence of a one vehicle motor vehicle accident,
was found sufficient to prove that the defendant drove when he was incapable
of doing so safely. 985 A.2d at 880-81. Expounding on inferences to be made
from circumstantial evidence, the Pennsylvania Superior Court in Commonwealth
v. Teems stated:

We remind [Defendant], however, that our jurisprudence does not
require fact-finders to suspend their powers of logical reasoning or

(FN-3-18]
11
 arresting officer, Trooper Bower, expressly opined Defendant was

under the influence and incapable of safe driving. Based on all

of this evidence and our acceptance of Trooper Bower's opinion

testimony as an experienced, trained officer who had the

opportunity to observe Defendant up close, we found the evidence

sufficient to establish beyond a reasonable doubt that Defendant

drove while incapable of safely driving, and that such was due

to the consumption of alcohol.8

(2) Careless Driving

The summary offense of careless driving is defined in

Section 3714 of the Motor Vehicle Code as fol lows: "Any person

who drives a vehicle in careless disregard for the safety of

persons or property is guilty of careless driving, a summary

offense." 75 Pa.c.s.A. § 3714. The only proof necessary to

establish this offense is that the defendant drove a vehicle in

careless disregard for the safety and property of others.

common sense in the absence of direct evidence. Instead, juries may
make reasonable inferences from circumstantial evidence introduced
at trial.

74 A,3d 142, 148 (Pa.Super. 2013) (citing Segida).
8
To the extent Defendant seeks to raise a weight of the evidence claim by
contending "f tJ he court erred in failing to properly review and give weight
to the video footage entered into evidence which did not depict the events
Trooper Bower claimed to have observed," ( see Concise Statement of Matters
Complained of on Appeal, paragraph 10), a weight of the evidence claim must
be preserved either in a post-sentence motion, by a written motion before
sentencing, or in an oral motion at sentencing. Commonweal th v. Giron, 155
A.3d 635, 638 (Pa.Super. 2017). Since Defendant did not file post-sentence
motions or preserve his challenge to the weight of the evidence in a written
motion or orally at sentencing, the claim has been waived, and requires no
further discussion. Id. at 638.

[FN-3-18)
12
 Matter of Huff, 582 A.2d 1093, 1097 (Pa.Super. 1990) (en bane),

affirmed, 604 A.2d 1026 {Pa. 1992). "[TJ o sustain the charge

however, there must be evidence of negligent acts, amounting to

a careless disregard of the rights or safety of others, the

consequences of which could reasonably have been foreseen by the

driver of the vehicle." Commonwealth v. Podrasky, 378 A.2d 450,

4 52 (Pa. Super. 1977) ( en bane) ( quoting Commonwealth v. Forrey,

92 A. 2d 233, 234 (Pa. Super. 1952) ) . "There is no causation or

particular result required by the statute." Commonwealth v.

Wood, 475 A.2d 834, 836 (Pa.Super. 1984).

The offense of careless driving has two elements: an actus

reus - driving a vehicle; and a mens rea - careless disregard.

Commonwealth v. Wood, 475 A.2d at 836. The mens rea

requirement, careless disregard, \\ implies 'less than willful or

wanton conduct but more than ordinary negligence or the mere

absence of care under the circumstances.'" Commonwealth v.

Gezovich, 7 A.3d 300, 301 (Pa.Super. 2010) .9 Ordinary negligence

of the type necessary to prove tort liability will not· sustain a

criminal conviction since such does not include the culpability

9
As noted in Commonwealth v. Gezovich, even though the offense under review
in Matter of Huff, Podrasky, and Wood was then called "reckless driving," the
applicable mens rea as interpreted in these cases was that of "careless
disregard." 7 A.3d at 301 n.1. Since these three cases were decided, the new
offense of reckless driving requiring a higher level of culpability, "willful
or wanton disregard for the safety of persons or property," was established,
see 75 Pa.C.S.A. § 3736, with the mens rea of ucareless disregard" as
interpreted in Matter of Huff, Podrasky and �lood, applicable to the offense
now known as careless driving as appears in 75 Pa.C.S.A. § 3714.

(FN-3-18)
13
component of a criminal offense and would offend substantive due

process. See Commonweal th v. O' Hanlon, 653 A. 2d 616, 617-18

{Pa. 1995).

Section 302 of the Crimes Code sets forth the general

requirements of criminal culpability. As pertinent here,

Section 302 provides:

§ 302. General requirements of culpability.

* * *
(b) Kinds of culpability defined.-

* * *
{3) A person acts recklessly with respect
to a material element of an offense when he
consciously disregards a substantial and
unjustifiable risk that the material element
exists or will result from his conduct. The
risk must be of such a nature and degree that,
considering the nature and intent of the
actor's conduct and the circumstances known to
him, its disregard involves a gross deviation
from the standard of conduct that a reasonable
person would observe in the actor's situation.

( 4) A person acts negligently with respect
to a material element of an offense when he
should be aware of a substantial and
unjustifiable risk that the material element
exists or will result from his conduct. The
risk must be of such a nature and degree that
the actor's failure to perceive it, considering
the nature and intent of his conduct and the
circumstances known to him, involves a gross
deviation from the standard of care that a
reasonable person would observe in the actor's
situation.

18 Pa.c.s.A. § 302 (b) (3), (4).

[F'N-3-18]
14
 Criminal negligent requires only that the accused \\should

be aware" of the substantial and unjustifiable risk created by

his conduct, not that he is actually aware of such risk. That

criminal negligence subjects an of fender to criminal liability

is justified given that criminal negligence involves a gross

deviation from reasonable care "such that it would be shocking

to allow the actor's lack of awareness to excuse his actions in

the circumstances." Commonweal th v. Heck, 4 91 A. 2d 212, 226

{Pa.Super. 1985), affirmed, 535 A.2d 575 (Pa. 1987). Criminal

recklessness, in contrast, requires a recognition, consideration,

and conscious disregard of the danger posed by the conduct in

question. "While both criminal negligence and recklessness

involve 'gross' deviations from reasonable conduct, recklessness

includes conscious disregard of a risk whereas criminal

negligence is accompanied by lack of awareness of a risk."

Commonwealth v. Heck, 491 A.2d at 216. See also Commonwealth v.

475 A,2d at 836-37 (noting the distinction between

"conscious" and "careless" disregard \\connotes a definite

difference in the intent requirement with a lesser intent

re qui red to establish [ careless J driving") . It is because of

these differing gradations of mens rea that driving under the

influence of alcohol unaccompanied by evidence of erratic or

unsafe driving does not establish recklessness per se and is

[FN-3-18)
15
 insufficient to support a conviction of reckless driving under

75 Pa.C.S.A. § 3736 (a): there must be other tangible indicia of

unsafe driving to establish the offender's subjective awareness

of the risk which he is charged with having consciously

disregarded. See Commonwealth v. Jeter, 937 A.2d 466, 467-68

(Pa.Super. 2007).

Here, Defendant was driving a motor vehicle with

excessively tinted windows while intoxicated during the early

morning hours when it was still dusk outside. In addition to

himself, a front seat passenger was present in the car. Even

though Defendant may not have known the exact quantity of

alcohol he could consume and still legally drive, certainly he

should have been aware of the possible consequences and dangers

of driving under the influence, and been aware that he was

incapable of safe driving. While we agree that the evidence was

not sufficient to establish a conviction for reckless driving -

that Defendant "consciously disregarded a substantial and

unjustifiable risk" of injury to others we · -conc Luded the

evidence was sufficient under the totality of the circumstances

to establish a "careless disregard" of a substantial and

unjustifiable risk of injury to others and that such involved a

gross deviation from the standard of care that a reasonable

person would observe.

(FN-3-18)
16
 Burden of Proof

Defendant next argues that we "erred and infringed upon

[his] constitutional rights to a presumption of innocence and

the right to remain silent, when (we] improperly shifted the

burden of proof to him when determining whether back injury

affected his performance during field sobriety testing."

(Concise Statement of Matters Complained of on Appeal, paragraph

8). Defendant apparently bases this contention on the following

remarks made by the court at the conclusion of the evidence in

explaining our verdict:

The Court understands that the defense has raised
that several of the items that were clues as
identified by Trooper Bower may be attributable
to back difficulties that Mr. Riley has, and
there was some indication on the video observed
by the Court that Mr. Riley did rub his back on
occasion and also stretched his back.

There was no evidence presented today as to the
nature of any back injury that Mr. Riley has.
The Court would need to speculate with respect to
that. There was no testimony presented or
evidence presented by the passenger in the
vehicle being driven by Mr. Riley. The Court
does not know who that was other than there was
reference in the testimony to the fact it was a
woman.

(N.T., 5/8/17, p.82).

Defendant clearly misunderstands the nature of the court's

comments. Without dispute, the Commonweal th has an unshifting

burden of proving beyond a reasonable doubt all elements of a

[FN-3-18]
17
 crime necessary for conviction. Nothing the court said could

reasonably be interpreted as detracting from that fundamental

precept of due process.

This does not mean, however, that in explaining its

decision the court is forbidden from reviewing or commenting

upon the strength or weight of the evidence. Defendant made it

a point on the morning of his arrest of repeatedly telling

Trooper Bower that he had a bad back in an apparent attempt to

explain this as the reason why he had difficulty getting out of

his car and performing the field sobriety tests. Similarly, at

trial such evidence had a tendency to challenge a key piece of

the Commonwealth's evidence that Defendant was incapable of safe

driving: that Defendant's problems with balance and failure to

follow instructions was not due to intoxication, but to a bad

back.

The court's comments were directed to the evidence that was

presented with respect to Defendant's "bad back," not who had

the burden of proving that evidence. As accurately appears in

the remarks of the court as to this evidence, neither the nature

of Defendant's back problem nor how or why this would

necessarily affect his movements, balance or ability to perform

field sobriety tests was ever explained. Just because a boy in

the woods repeatedly calls "wolf," does not mean there is a

[FN-3-18]
18
 wolf. And just because Defendant repeatedly said he had a bad

back and implied that this somehow affected his movements that

night, does not mean that it did.

Trooper Bower testified that he took into account

Defendant's claim when conducting his tests and evaluating

Defendant {N.T., 5/8/17, pp.31-32, 55), and we found, based on

the evidence presented, that the Commonwealth proved beyond a

reasonable doubt each of the crimes of which Defendant was

convicted. See Commonwealth v. Rose, 321 A.2d 880, 884 (Pa.

1974) (Pomeroy, J. plurality) (''(T]he Commonwealth's burden to

prove beyond a reasonable doubt all elements of the crime does

not require it to disprove a negative."); see also Commonwealth

v. Ragan, 652 A.2d 925, 930 (Pa.Super. 1995) (holding the

Commonweal th had no burden to disprove defendant's claim that

the odor of alcohol on his breath was due to his ingestion of a

mouth deodorizer where the defendant, who was convicted of

driving under the influence of alcohol, presented no evidence of

the source of the odor of alcohol at the time· he was stopped) ,

appeal denied, 664 A.2d 540 (Pa. 1995); Commonwealth v. Segida,

985 A.2d at 879, n.6 (holding that the Commonwealth had no

burden to prove defendant drank no alcohol after a one-car motor

vehicle accident, where defendant, who was convicted of driving

under the influence of alcohol, claimed this was a possibility).

(r:N-3-18]
19
 CONCLUSION

For the foregoing reasons, we find no merit to the issues

Defendant intends to raise on appeal.

BY THE COORT:

P.J.

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