Com. v. Wandel, C. ( 2014 )

J-S48010-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee, :
:
v. :
:
CHAD EVERETT WANDEL, :
:
Appellant : No. 484 MDA 2014
Appeal from the Judgment of Sentence January 6, 2014,
Court of Common Pleas, Luzerne County,
Criminal Division at No. CP-40-CR-0004005-2012
BEFORE: DONOHUE, JENKINS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 08, 2014
dgment of
sentence entered on January 6, 2014 by the Court of Common Pleas of
Luzerne County, Criminal Division, following his conviction for driving under
1
After
careful review, we affirm.
The relevant facts and procedural history in this case are as follows.
On April 21, 2011, shortly after midnight, Sergeant Damian Hoover
to a motor vehicle crash on State Route
a silver Audi and a motorcycle. By the time Sergeant Hoover arrived at the
scene, paramedics had transported the driver of the motorcycle to a local
1
75 Pa.C.S.A. § 3802(e).
*Retired Senior Judge assigned to the Superior Court.
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hospital and Wandel, the driver of the silver Audi, had fled the scene of the
crash. However, while Sergeant Hoover was investigating the crash,
questioned Wandel, who was 18-years-old on the night in question, he
rson and breath. Sergeant Hoover
placed Wandel under arrest and transported him to Wilkes-Barre General
On November 25, 2013, following a bench trial, the trial court found
Wandel guilty of DUI minors. On January 6, 2014, the trial court
sentenced Wandel to seven days to six months of house arrest. Additionally,
the trial court also fined Wandel $500.00, required him to enroll in an
alcohol highway safety program, undergo evaluation for drug and alcohol
treatment, and pay $307.00 to Wilkes-Barre General Hospital in restitution
suspension. That same day, Wandel filed post-sentence motions. On
-sentence motions.
On February 3, 2014, Wandel filed a notice of appeal to this Court. On
appeal, Wandel raises the following issue for our review:
Sufficiency of a Blood Test Result. For DUI
minor, blood-alcohol content may not be 0.02% or
higher within two hours after the minor has driven.
Here, the Commonwealth presented admissible
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Commonwealth, however, failed to present evidence
that the result is reliable and likely accurate. The
laboratory improperly calibrates its blood-testing
machine. Therefore, is this weak and inconclusive
concentration was .02% or higher within two hours
of driving?
In reviewing a challenge to the sufficiency of the evidence, our
standard of review is as follows:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
recor
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
Commonwealth v. Widmer, 560 Pa.
deemed sufficient to support the verdict when it
establishes each material element of the crime
charged and the commission thereof by the accused,
Commonwealth v.
Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
ablish
Id.; see also
Commonwealth v. Aguado, 760 A.2d 1181, 1185
established by the Commonwealth need not be
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. See Commonwealth v.
DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence. See
Brewer
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participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled
with the reasonable inferences drawn therefrom
Id.(quoting Commonwealth v. Murphy, 795 A.2d
1025, 1038 39 (Pa. Super. 2002)). Significantly, we
may not substitute our judgment for that of the fact
finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the respective
ions will be
upheld. See Brewer, 876 A.2d at 1032.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.
Super. 2013)).
Section 3802(e) of the Vehicle Code states the following:
A minor 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
is 0.02% or higher within two hours after the minor
has driven, operated or been in actual physical
control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(e). Thus, in order for a person to be in violation of
section 3802(e), the Commonwealth must prove that the person was a
minor,2 was driving, operating, or controlling a vehicle, and had a BAC of .02
percent or higher within two hours after driving, operating, or controlling the
vehicle. See id.
2
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Although Wandel concedes that he is a minor, that he was operating a
vehicle on the night in question, and that Wilkes-Barre General Hospital
obtained his BAC within two hours of operating that vehicle, Wandel asserts
that there was insufficient evidence to conclude that his BAC was .047
minors
statute that Wandel claims the Commonwealth did not sufficiently prove is
that his BAC was greater than .02 percent. Wandel contends that the gas
chromatograph instrument used to measure his BAC was improperly
calibrated, causing results that were both inaccurate and unreliable. Id. at
9-16. Therefore, Wandel argues that the Commonwealth failed to provide
sufficient evidence supporting his conviction for DUI minors. Id. at 16-22.
We conclude that the trial court did not err in finding that Wan
sufficiency of the evidence claim fails.3
challenging the sufficiency of the evidence . . . asserts that there is
insufficient evidence to support at least one material element of the crime
for which Appellant has Commonwealth v. Lyons, 833
A.2d 245, 258 (Pa. Super. 2003) (citation omitted). Thus, as soon as the
trial court has admitted proof of each material element of a crime into
ail. See id.3
We note that our rationale in reaching this conclusion differs from that of
Commonwealth v. McLaurin, 45 A.3d 1131, 1138 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013).
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Wandel readily concedes that the trial court admitted into evidence proof
that his BAC on the night in question was .047 percent. See
4
presented admissibl Id.Therefore, because Wandel concedes that the trial court admitted into
evidence proof that his BAC on the night question was .047 percent, which is
the sole element of the DUI minors statute that he co
sufficiency of the evidence claim fails. See Lyons, 833 A.2d 245, 258 (Pa.
Super. 2003) (citation omitted).
evidence with a challenge to the weight of the evidence. In his appellate
brief, Wandel cites the standard of review for sufficiency of the evidence
refers numerous times throughout the remainder of his brief to the
sufficiency of the evidence. See -4, 6-8, 16, 19, 22-23.
However, the argument that Wandel makes throughout his brief is a weight
of the evidence argument.
Wandel argues that his BAC test results are potentially inaccurate and
unreliable because ac
Wilkes-Barre General Hospital improperly calibrated the gas chromatograph
4
question, without objection. See N.T., 11/25/13, at 121-22.
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-16. Our Court has
held that the challenges to the reliability of BAC test results are challenges
that go to the weight of the evidence. Commonwealth v. Sullivan, 581
A.2d 956, 959 (Pa. Super. 1990); see also Commonwealth v. Shiffler,
541 A.2d 780, 783 (Pa. Super. 1988) (determining that a challenge to the
reliability of BAC results goes to the weight of the evidence).
Moreover, what Wandel asks us to do is afford more weight to the
See 9-
Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009).
Therefore, based on the foregoing authority, it is clear that Wandel has
raised a sufficiency claim in which he presents a weight of the evidence
argument.
suffi
as a challenge to the sufficiency of the evidence, but the argument that
appellant provides goes to the weight of the evidence. Commonwealth v.
Small, 741 A.2d 666, 672 (Pa. 1999). Because Wandel raised a sufficiency
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claim in which he presents a weight of the evidence argument, his
sufficiency claim also fails for that reason.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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