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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER W. LEBER,
Appellant No. 1862 MDA 2015
Appeal from the Judgment of Sentence September 28, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002753-2007
BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED APRIL 21, 2016
Appellant, Christopher W. Leber, appeals from the September 28,
2015 judgment of sentence of ten days to six months of imprisonment
entered following his conviction at a bench trial of driving under the
influence, general impairment. Following our careful review, we affirm.
The trial court summarized the facts of the crime as follows:
At approximately 2:00 A.M. on September 24, 2006 1,
Pamela Wilson was traveling south on Pennsylvania state Route
441 when she observed a white Ford Explorer in front of her
being driven erratically. She followed the vehicle for
approximately 3 to 4 miles and saw the vehicle repeatedly
swerve “over the center line into the other lane,” then called
911, reporting that she was following what appeared to be a
drunk driver.2 In all she observed the vehicle swerve across the
center line approximately 15 times before entering Columbia
Borough. She was 2 or 3 car lengths behind [Appellant’s]
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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vehicle as it traveled down a hill into Columbia Borough when
she saw it strike a concrete barrier, go airborne, and “land . . .
half on the sidewalk and half on the back of a parked car that
was there.”
1
The delay between the charge and [Appellant’s]
bench trial was caused by [Appellant’s] failure to
appear and being wanted on a Bench Warrant for
more than seven years.
2
Pennsylvania State Route 441 is a two-lane road.
Officer Ryan Clingan of the Columbia Borough Police
Department responded to the 911 call and observed the white
Ford Explorer as it descended the hill and entered the Borough. 3
The officer saw [Appellant’s] vehicle, “coming down the hill south
on 441” followed by the vehicle in which Pamela Wilson was a
passenger. He recalled that he clearly saw [Appellant’s] vehicle
“swerve . . . over the center line,” crash into a sign on a corner,
go onto the sidewalk and then into a parked car with the “sign
embedded into the hood of the vehicle.”
3
On the date of the accident, [Officer] Clingan was
employed as a Patrolman in Columbia Borough.
Immediately after witnessing the accident, Officer Clingan
called for EMS assistance and approached the driver’s side
window of the vehicle. [Appellant] Christopher W. Leber was the
only occupant and was found in the driver’s seat. When he
looked into the vehicle, Officer Clingan observed an “open
cooler” with bottles and cans of beer and “an open beer in the
front of the car” within reach of [Appellant]. This container “was
open as if [Appellant] was consuming it.” The cooler was upright
and the lid was open although some beer cans and bottles had
spilled out of the cooler. Officer Clingan testified that
[Appellant] had slurred speech, glassy eyes, and that
[Appellant’s] breath smelled of alcohol. He also noticed that
[Appellant] had slow movements and was bleeding from his
head. Officer Clingan concluded, based on his training and
experience, that [Appellant] was most likely DUI.4 Based on this
conclusion, Officer Clingan charged [Appellant] with DUI, general
impairment.5
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4
Officer Clingan did not have [Appellant] perform
the standard field sobriety tests due to [Appellant’s]
head injury and, despite requesting a blood sample
from Lancaster General Hospital (“LGH”) almost
immediately after the accident, was unable to obtain
[Appellant’s] blood sample because LGH did not
collect one.
5
75 Pa.C.S.A. § 3802(a)(1).
Trial Court Opinion, 12/1/15, at 1–3 (citations to record omitted).
Appellant was charged with one count of DUI, general impairment and
as noted, apparently failed to appear for trial in 2006. A bench warrant
issued, and on September 28, 2015, Appellant, who resided in Florida,
appeared for a bench trial.1 N.T., 9/28/15, at 47. Pamela Wilson and
Officer Clingan testified, as did Appellant. The trial court found Appellant
guilty of DUI, general impairment and sentenced him to ten days to six
months of incarceration, imposed a $1,000 fine, and suspended his driver’s
license for twenty-two months. Id. Appellant filed a timely notice of appeal.
Both the trial court and Appellant complied with Pa.R.A.P. 1925.
Appellant raises the following single issue on appeal:
WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICIENT TO
SUSTAIN A CONVICTION FOR DRIVING UNDER THE INFLUENCE
UNDER 75 PA.C.S.A. 3802(a)(1)?
Appellant’s Brief at 4.
____________________________________________
1
The record does not reveal the actions leading to Appellant’s custody and
incarceration prior to the instant trial.
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In reviewing a sufficiency challenge, “we must decide whether the
evidence admitted at trial, and all reasonable inferences drawn therefrom in
favor of the Commonwealth, as verdict winner,” are sufficient to support all
elements of the offense. Commonwealth v. Hitcho, 123 A.3d 731, 746
(Pa. 2015). The trial court, sitting as the finder of fact, is free to believe
some, all, or none of the evidence. Commonwealth v. Cousar, 928 A.2d
1025 (Pa. 2007); Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa.
Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Roberts, ___ A.3d ___, ___, 2016 PA
Super 22, at *5 (Pa. Super. filed February 2, 2016) (quoting
Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super. 2010)). As
an appellate court, we may not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d
994 (Pa. Super. 2015).
Appellant was convicted of DUI pursuant to 75 Pa.C.S. § 3802(a),
which provides as follows:
(a) General impairment.--
(1) 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.
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75 Pa.C.S. § 3802(a)(1). In order to be found guilty of DUI—general
impairment, “the Commonwealth [must] prove the following elements: the
accused was driving, operating, or in actual physical control of the
movement of a vehicle during the time when he or she was rendered
incapable of safely doing so due to the consumption of alcohol.”
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). Unlike the
other subsections of DUI, general impairment does not require proof that the
accused had a blood alcohol level in excess of the legal limit. Id. While a
blood alcohol level may be relevant, it is not necessary. Id. What is
necessary, however, is evidence that the accused was unable to drive safely
due to the consumption of alcohol. Id.
Our Supreme Court described the types of evidence the
Commonwealth may use to prove DUI, general impairment as follows:
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 offender’s 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. . . . The weight to be assigned these various types of
evidence presents a question for the factfinder, who may rely on
his or her experience, commonsense, 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.
Id. at 879.
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Appellant asserts that the Commonwealth failed to produce evidence
of his blood-alcohol level or evidence of performance of field-sobriety tests.
Appellant’s Brief at 9. Segida teaches that such evidence is not required.
Segida, 985 A.2d at 879; see also Commonwealth v. Griffith, 32 A.3d
1231, 1238 (Pa. 2011) (“Although the Commonwealth may proffer evidence
of alcohol level . . . to establish that the defendant had imbibed sufficient
alcohol to be rendered incapable of driving safely, it is not required to do so
under subsection 3802(a)(1) . . . . This is well-established, long-standing
law in Pennsylvania.”).
Appellant suggests that his glassy eyes, slow movements, and odor of
alcohol from his breath could have been attributed to the fact that he was
“bleeding from his head” and the spilling of beverages in his car. Appellant’s
Brief at 9. Appellant’s contention, however, ignores our standard of review,
which requires us to view the evidence in the light most favorable to the
Commonwealth, as verdict winner. Hitcho, 123 A.3d at 746. At trial,
witness Pamela Wilson testified that Appellant was driving erratically by
crossing into oncoming traffic fifteen times. N.T., 9/28/15, at 6. In fact, the
witness, who followed Appellant for “probably a half hour,” testified that
Appellant’s vehicle “was over the whole way on the other side of the road. . .
.[H]e was actually on the other side of the road. So if there was a vehicle
coming towards him, they would have hit head-on.” Id. at 5.
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Officer Clingan, who responded to Ms. Wilson’s 911 call, also saw
Appellant drive over the center line, hit a sign, swerve onto a sidewalk, and
crash into a parked car. N.T., 9/28/15, at 11–12. The officer observed that
Appellant had bloodshot, glassy eyes, slurred speech, and slow movements.
Id. at 15. Officer Clingan observed an open, upright cooler in the back of
the vehicle and an open can of beer in the front. Id. The officer testified
that he “immediately smell[ed] the odor of alcohol” as he spoke to
Appellant. Id.
The trial court found Appellant’s explanation at trial “incredible” and
that it “defies belief.” Trial Court Opinion, 12/1/15, at 7. Moreover, it found
no merit to Appellant’s claim that “containers of alcohol in the front of his
vehicle were opened only by the impact of the crash.” Id. at 8.
Upon review of the parties’ briefs, the certified record, and our
standard of review, we conclude that the trial court properly determined that
sufficient evidence was produced at trial to support a finding of guilt of DUI,
general impairment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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Com. v. Leber, C.
Combined Opinion