Commonwealth v. Jordan

1

COMMONWEALTH OF PENNSYLVANIA v. RAYMOND LEWIS JORDAN, JR. Appellant

No. 1233 WDA 2021

No. J-S29040-22

Superior Court of Pennsylvania

December 19, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered June 30, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008591-2020

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J. ^{1 [*]}

MEMORANDUM

COLINS, J.

Appellant Raymond Lewis Jordan, Jr., appeals from the judgment of sentence imposed for his convictions for Driving Under the Influence (DUI) General Impairment and two summary Vehicle Code offenses, Failure to Stop at Red Signal and Improper Left Turn. ^[2] For the reasons set forth below, we affirm.

At approximately 11:00 p.m. on September 5, 2020, Appellant was driving in West Mifflin Borough and made a left turn from a non-turning lane when the left turn light at the intersection was red. N.T. Trial and Sentencing at 4-6; Defendant's Ex. A. A police officer driving behind Appellant saw Appellant making this turn and followed Appellant's car. N.T. Trial and Sentencing at 5-6, 11-12. After following Appellant's car for approximately five minutes and observing it veering to the right side of the road and going over the fog line several times and going onto the berm once, the police officer activated his lights and Appellant pulled over and stopped his car. Id. at 6-7, 15-16; Defendant's Ex. A.

When the officer approached the driver side window and made contact with Appellant, the officer detected a strong smell of alcohol coming from the car and observed that Appellant's eyes were bloodshot and glassy and that Appellant's speech was slurred. N.T. Trial and Sentencing at 7. The officer conducted field sobriety tests and Appellant failed these tests. Id. at 8-9. The officer then placed Appellant under arrest for DUI. Id. at 9. The officer asked Appellant if he would submit to a preliminary breath alcohol test and Appellant declined. Id. at 9-10. The officer also asked Appellant submit to a blood test and Appellant initially agreed, but ultimately refused the blood test. Id. at 10. Appellant's illegal left turn, his driving while the officer followed him and the traffic stop were captured on the police car's dashboard video camera, but that video did not record sound or capture the sobriety tests that Appellant failed, which were conducted to the right of the vehicles. Id. at 6, 8, 12-15, 22; Defendant's Ex. A. Appellant was charged with DUI General Impairment and the summary Vehicle Code offenses of Failure to Stop at Red Signal, Disregard Traffic Lane, and Improper Left Turn. On June 30, 2021, a non-jury trial was held at which the arresting officer testified and the video recording was introduced in evidence and played. The trial court found Appellant guilty of DUI General Impairment, Failure to Stop at Red Signal and Improper Left Turn and acquitted Appellant on the Disregard Traffic Lane charge. N.T. Trial and Sentencing at 37-38. The trial court then sentenced Appellant to six months' probation and a $300 fine on the DUI conviction and imposed no further penalty for the Failure to Stop at Red Signal and Improper Left Turn convictions. Id. at 40-41; Sentencing Order.

Appellant filed a timely post sentence motion on July 8, 2021 in which he asserted that the evidence at trial was insufficient to prove that he was incapable of safe driving and therefore was insufficient to support his DUI conviction and alternatively sought a new trial on the ground that the DUI guilty verdict was against the weight of the evidence. On September 17, 2021, the trial court entered an order denying Appellant's post sentence motion. Trial Court Order, 9/17/21. This timely appeal followed.

Appellant presents the following two issues for our review:

I. Did the Commonwealth fail to provide sufficient evidence to support Mr. Jordan's conviction for DUI?

II. In the alternative, should the guilty verdict in this case shock the conscience of the Court because the finding of guilt on the DUI charge is contrary to the weight of the evidence provided at trial?

Appellant's Brief at 7 (suggested answers omitted). Neither of these issues merits relief.

Our standard of review in a challenge to the sufficiency of the evidence is well-settled:

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.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en banc) (quoting Commonwealth v. LaBenne, 21 A.3d 1287 (Pa. Super. 2011)).

The Vehicle Code defines the offense of DUI General Impairment in relevant part 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.

75 Pa.C.S. § 3802(a)(1) (emphasis in original). The elements that the

Commonwealth must prove to convict a defendant of this offense are (1) that the defendant operated 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. Donoughe, 243 A.3d 980, 985 (Pa. Super. 2020); Gause, 164 A.3d at 541. To prove the second element, the Commonwealth must show that alcohol substantially impaired the normal mental and physical faculties required to safely drive. Commonwealth v. Banks, 253 A.3d 768, 775 (Pa. Super. 2021); Donoughe, 243 A.3d at 985-86; Gause, 164 A.3d at 541.

Substantial impairment of the faculties necessary to safely drive is a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Banks, 253 A.3d at 775; Gause, 164 A.3d at 541; Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000). Substantial impairment from alcohol can be proved by evidence concerning the defendant's manner of driving, the defendant's performance on field sobriety tests, the defendant's demeanor, the defendant's physical appearance, particularly bloodshot eyes and other physical signs of intoxication, whether there is an odor of alcohol, and whether the defendant's speech is slurred. Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009); Donoughe, 243 A.3d at 986; Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013). A police officer who observed the defendant's appearance and behavior is competent to express an opinion that the defendant was impaired by alcohol. Banks, 253 A.3d at 775; Palmer, 751 A.2d at 228.

Here, the police officer who stopped Appellant and arrested him for DUI testified that he smelled a strong odor of alcohol coming from the car when he spoke to Appellant at the driver's side window, that Appellant's eyes were bloodshot and glassy, that Appellant's speech was slurred, and that Appellant failed sobriety tests that the officer conducted. N.T. Trial and Sentencing at 7-9. There was also evidence that Appellant exhibited diminished judgment in his driving, as both the officer's testimony and the video recording showed that Appellant made a left turn from the wrong lane against a red light, and diminished driving ability, as the video showed Appellant drifting in his lane, going over the fog line several times, and going onto the berm once. Id. at 5-6; Defendant's Ex. A. In addition, the officer testified that in his opinion, based on his observations, Appellant was impaired by alcohol. N.T. Trial and Sentencing at 10-11.

This evidence was sufficient to prove that Appellant was driving while substantially impaired by alcohol and therefore under the influence of alcohol to a degree that rendered him incapable of safe driving. Donoughe, 243 A.3d at 986 n.8 (evidence that there was a strong odor of alcohol and that the defendant had glassy and bloodshot eyes, moved very slowly, and failed one field sobriety test was sufficient to support DUI conviction); Commonwealth v. Giron, 155 A.3d 635, 637-38 (Pa. Super. 2017) (evidence that the defendant sideswiped a parked car, had difficulty walking, and had glassy and bloodshot eyes and slurred speech and that the defendant's vehicle smelled of alcohol was sufficient to support DUI conviction); Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (evidence that the defendant failed field sobriety tests, smelled of alcohol, and had committed a traffic violation of coasting through a stop sign without coming to a full stop was sufficient support to DUI conviction); Palmer, 751 A.2d at 228 (evidence that the defendant failed field sobriety tests, smelled of alcohol, had difficulty walking, and had glassy and bloodshot eyes and police officer's opinion that the defendant was impaired were sufficient to support DUI conviction).

Appellant argues that the evidence was not...