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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VIRGINIA GOLDSMITH :
:
Appellant : No. 1971 EDA 2019
Appeal from the Judgment of Sentence Entered June 14, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): Cp-46-CR-0005634-2018
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED MAY 19, 2020
Appellant, Virginia Goldsmith, appeals from the judgment of sentence
imposed following her non-jury trial conviction of driving under the influence
(“DUI”)-general impairment.1 We affirm.
At approximately 1:30 am on April 14, 2018, Officer Thomas Lawson of
the Souderton Borough Police Department pulled Appellant’s vehicle over after
he noticed her driving erratically. Officer Lawson attempted to administer field
sobriety tests to Appellant, but she was not able to complete the tests. Officer
Lawson arrested Appellant, and she was charged with the DUI-general
impairment offense. Appellant proceeded to a June 14, 2019 bench trial at
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1).
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which she and Officer Lawson testified. At the conclusion of trial, the trial
court found Appellant guilty of the DUI offense and sentenced her to a six-
month term of probation and to pay a $300 fine and court costs. Appellant
filed a timely appeal of the judgment of sentence.2
Appellant presents the following issue for our review:
Was the evidence insufficient as a matter of law for the court to
convict [Appellant] of 75 Pa.C.S. § 3802(a)(1) DUI/Unsafe Driving
when there was insufficient evidence that she operated a vehicle
“after imbibing a sufficient amount of alcohol such that the
individual is rendered incapable of safely driving, operating or
being in actual physical control of the movement of the vehicle.”
Appellant’s Brief at 2. Appellant argues that the evidence was insufficient to
establish her conviction because the Commonwealth did not prove that she
had imbibed a sufficient amount of alcohol that she was incapable of driving
safely. Appellant argues that no blood test was performed showing the
concentration of alcohol in her blood and she notes her testimony that she
had not been drinking in the hours before her arrest and she had only had “a
couple drinks” of brandy at approximately 1:00 pm on the day before. N.T.,
6/14/19, at 47-48. Appellant further cites her testimony that she was not
asked to perform field sobriety tests at the scene of her arrest. Id. at 45-46.
Our standard of review when considering a challenge to the sufficiency
of the evidence is well-settled:
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2Appellant filed her concise statement of errors complained of on appeal on
August 5, 2019, and the trial court filed its opinion on September 3, 2019.
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[w]hen reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. As an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa. Super. 2019) (citations,
quotation marks, and brackets omitted).
Section 3802(a)(1) of the Vehicle Code, the statute under which
Appellant was convicted, provides that: “An individual may not drive, operate
or be in actual physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the individual is rendered incapable of
safely driving, operating or being in actual physical control of the movement
of the vehicle.” 75 Pa.C.S. § 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 incapable of safe driving.” Commonwealth v. Gause, 164 A.3d 532,
541 (Pa. Super. 2017) (en banc). To establish the second element of the DUI-
general impairment offense, the Commonwealth must show 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
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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.
Id. (citation omitted).
At trial, Officer Lawson testified that he was parked in a marked police
car observing traffic from a parking lot adjacent to state route 113 in
Souderton Borough. N.T., 6/14/19, at 6. Officer Lawson observed a blue Kia,
which was later determined to be Appellant’s vehicle, pass by, and the vehicle
appeared to him to be operating at a speed in excess of the posted speed
limit. Id. Officer Lawson pulled out of the parking lot and began to follow
Appellant’s vehicle on route 113 and then North School Lane; he observed
Appellant’s vehicle twice swerve into the parking lane and then swerve back
into the travel lane in order to avoid parked cars. Id. at 6-8. Officer Lawson
also observed Appellant’s vehicle drift across the center of the roadway into
the lane for oncoming traffic and come to a nearly complete stop in the middle
of the roadway even though there was no stop sign or traffic light. Id. at 8-
11. Officer Lawson initiated a traffic stop by activating his lights and sirens;
Appellant, however, did not immediately stop but continued to drive for
several more blocks and at one point drove up onto the sidewalk before
veering back into the roadway. Id. at 10-12. Appellant finally made a left
turn onto East Summit Street before traveling an additional block and finally
bringing the vehicle to a complete stop. Id. at 12.
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Officer Lawson approached on foot, asked Appellant to turn off the car,
and observed that Appellant was the only person in the vehicle. Id. at 16-17.
While speaking to Appellant, Officer Lawson detected the odor of alcohol on
her breath, but she denied having drunk alcohol that night. Id. at 17. Officer
Lawson asked Appellant to exit the vehicle onto the sidewalk; as Appellant
exited and began to walk, the officer noticed that Appellant was unsteady on
her feet. Id. at 19. Officer Lawson asked Appellant to perform two field
sobriety tests: the “walk and turn” test and the “finger count” test; Appellant
was not able to follow the instructions to be able to attempt the first test and
she likewise could not perform the second test. Id. at 19-22.
Officer Lawson then placed Appellant under arrest. Id. at 23. Officer
Lawson twice requested that Appellant submit to a blood test and read the
Department of Transportation’s DL-26 implied consent warning form. Id. at
23-24. After the first request, Appellant stated that she would not consent to
the test and on the second reading Appellant refused to answer, which Officer
Lawson interpreted to a be a refusal to submit to testing. Id.
Upon a full review of the record and viewing the evidence in the light
most favorable to the Commonwealth, we conclude that the evidence was
sufficient to establish Appellant’s conviction for DUI-general impairment.
First, it is uncontested that Appellant was operating a motor vehicle on April
14, 2018. Furthermore, Officer Lawson’s testimony that he “could detect the
odor of an alcoholic beverage coming from her breath and her person”
supports that she had consumed alcohol prior to driving. Id. at 17. While
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Appellant denied having drunk alcohol within the 12 hours prior to her arrest,
the trial court as fact-finder was free to believe all, part, or none of Appellant’s
testimony offered in her defense. Hill, 210 A.3d at 1112.
In addition, the Commonwealth proved that Appellant’s mental and
physical faculties were substantially impaired such that she was incapable of
safely driving her vehicle. Officer Lawson testified that, while he was following
Appellant’s vehicle, he observed Appellant twice swerve into the parking lane
and narrowly avoid hitting parked cars; drift across the center of the road into
the opposite lane; come to nearly a complete stop while on the roadway where
no stop was required; and briefly drive onto the sidewalk before turning back
onto the roadway. When Officer Lawson asked Appellant to exit her vehicle
to perform the field sobriety tests, Appellant was unsteady on her feet.
Finally, Appellant failed two field sobriety tests that Officer Lawson asked her
to perform. This evidence was sufficient to establish Appellant’s substantial
impairment under Section 3802(a)(1). Cf. Commonwealth v. Mobley, 14
A.3d 887, 890 (Pa. Super. 2011) (evidence was sufficient to show substantial
impairment under the DUI-general impairment statute where the defendant
“failed four separate field sobriety tests, smelled of alcohol, and proceeded to
coast through a stop sign despite a police officer being in plain view”);
Commonwealth v. Smith, 904 A.2d 30, 39 (Pa. Super. 2006) (evidence was
sufficient to show substantial impairment where the defendant “drove onto a
grassy median, drove in the wrong lane of traffic, smelled of alcohol, was
unsteady on her feet, was combative, failed the field sobriety tests, and
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refused a blood alcohol test”); Commonwealth v. Kowalek, 647 A.2d 948,
952 (Pa. Super. 1994) (evidence was sufficient to support DUI-general
impairment conviction where the defendant smelled of alcohol, had difficulty
producing his license and registration, had slurred speech, and was unable to
stand on one foot for more than three seconds).
Finally, we reject Appellant’s claim that the evidence was insufficient to
establish her conviction because no blood test was performed. Unlike the
offenses set forth in subsection (a)(2), (b), and (c) of Section 3802 that
require that a test to determine blood alcohol level be performed within two
hours of the time the defendant drove, see 75 Pa.C.S. § 3802(a)(2), (b), (c),
the DUI-general impairment offense set forth in subsection (a)(1) does not
limit the evidence that the Commonwealth can use to prove the defendant’s
substantial impairment. Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.
2009); Commonwealth v. Eichler, 133 A.3d 775, 790 (Pa. Super. 2016).
Therefore, evidence of the defendant’s blood alcohol level is not necessary to
show substantial impairment under Section 3802(a)(1). Segida, 985 A.2d at
879; Eichler, 133 A.3d at 790.
Accordingly, Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2020
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