J-S48026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

GARY LEWIS 

 Appellant No. 20 MDA 2014 

Appeal from the Judgment of Sentence May 30, 2013

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0003270-2012 

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED AUGUST 06, 2014 

 Gary Lewis appeals the judgment of sentence of a minimum of 21 days 

to a maximum of 6 months of house arrest with electronic monitoring under 

an intermediate punishment program1

 for driving under the influence –

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1

 Additional terms and conditions of Lewis’ sentence included: 

an imposition of an $1,000.00 fine[;] the Defendant was to 

enroll, attend and complete the Alcohol Highway Safety 

Program[;] undergo evaluation for drug/alcohol treatment 

if recommended[;] participate in 15 hours of community 

service and a [Pennsylvania Department of Transportation] 

imposed driver’s license suspension for 12 months. 

Furthermore, [Lewis’] sentence was delayed for 30 days 

with bail continuing throughout appeal proceedings. 

Trial Court Opinion, 02/11/2014, at 1-2. 
J-S48026-14

- 2 - 

general impairment and for driving under the influence – highest rate of 

blood alcohol content convictions.2

 We affirm on the basis of the wellreasoned trial court opinion.3

 Lewis raises two issues on appeal: 

[I.] Whether the [t]rial [c]ourt’s finding of guilt for 

DUI Highest Rate, was against the weight [of the] 

evidence. 

[II.] Whether the [t]rial [c]ourt’s finding of guilt for 

DUI General Impairment was against the weight of 

the evidence. 

Appellant’s Brief at 5.

The standard of review for weight of the evidence claims is as follows: 

The weight of the evidence is exclusively for the 

finder of fact who is free to believe all, part, or none 

____________________________________________ 

2

 75 Pa.C.S. §§ 3802(a)(1), (c), respectively. Lewis’ conviction under 

section 3802(a)(1) merged into his section 3802(c) conviction for sentencing 

purposes. See Trial Court Opinion, at 1; 42 Pa.C.S. § 9765 (relating to 

merger of sentences). 

3

 On May 30, 2013, following a bench trial, the trial court found Lewis guilty 

of the aforementioned charges. On July 23, 2013, the trial court imposed 

Lewis’ sentence. On July 31, 2013, Lewis filed timely post-sentence motions, 

which were denied by operation of law on December 2, 2013. On December 

24, 2013, Lewis filed a timely appeal. 

 

The trial court did not direct Lewis to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. On February 11, 2014, the trial 

court filed its Pa.R.A.P. 1925(a) opinion. Although Lewis only challenged the 

weight of the evidence in his post-sentence motion, the trial court analyzed 

both the sufficiency and weight of the evidence. Lewis did not challenge the 

sufficiency of the evidence in this Court, so we need not address it. See, 

e.g., Commonwealth v. Rush, 959 A.2d 945, 950-51 (Pa.Super.2008). 
J-S48026-14

- 3 - 

of the evidence and to determine the credibility of 

the witnesses. An appellate court cannot substitute 

its judgment for that of the finder of fact. Thus, we 

may only reverse the lower court's verdict if it is so 

contrary to the evidence as to shock one's sense of 

justice. Moreover, where the trial court has ruled on 

the weight claim below, an appellate court's role is 

not to consider the underlying question of whether 

the verdict is against the weight of the evidence. 

Rather, appellate review is limited to whether the 

trial court palpably abused its discretion in ruling on 

the weight claim. 

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.2003). 

When an Appellant attacks the credibility of trial testimony, our review 

is extremely limited. Commonwealth v. Gibbs, 981 A.2d 274, 282 

(Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa.2010). Generally, unless 

the evidence is so unreliable or contradictory as to make any verdict based 

thereon pure conjecture, weight of the evidence claims will fail on appeal. 

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa.Super.2007). 

 In his first issue, Lewis argues that forensic scientist Larissa Sorochka 

failed to test his blood sample properly, and as a result, the 

Commonwealth’s evidence of his blood alcohol content shocks the 

conscience. In support, Lewis asserts that Sorochka lacked knowledge 

regarding the calibration date for the pipettes used for testing, the date of 

expiration of Lewis’ blood sample (or whether testing took palce before the 

sample expired); and the date of expiration or retention times of the control 

sample. Appellant’s Brief at 12-15.
J-S48026-14

- 4 - 

 In his second issue where he challenges the weight of the evidence 

underlying his guilty verdict for DUI – general impairment, Lewis contends 

that based on his first argument, “the blood alcohol concentration should not 

be considered in determining whether he was capable of safe driving[ and 

t]he remaining evidence presented at trial was of insufficient weight to 

establish that [] Lewis was incapable of safe driving.” Appellant’s Brief at 16-

17. In support, he asserts: 

 While it is certainly true and relevant that an 

accident occurred in the present matter, Trooper 

Buznik did not know if something had occurred that 

le[d] to the car being driven up on to the curb. As 

such, the accident alone is not sufficient that Mr. 

Lewis was incapable of safe driving due to 

consuming alcohol. 

During Officer Huntzinger's interaction with Mr. 

Lewis, Officer Huntzinger detected an odor of alcohol 

and saw that Mr. Lewis had bloodshot eyes. (N.T. 

58:7-19). Officer Huntzinger indicated that an odor 

of alcohol and bloodshot eyes do not equate to 

impairment but would at most indicate consumption. 

(N.T. 58:15-20). Officer Huntzinger stated that Lewis

had a slight sway while Lewis was being questioned 

about the accident but indicated that Lewis was not 

using anything to lean against or prop himself on. 

(N.T. 60:11-24). 

Notably, Mr. Lewis's speech was not slurred. 

Additionally, the Officer did not perform Standard 

Field Sobriety Tests. As stated above, there were 

certainly signs of consumption of alcohol. However, 

the absence of standard field sobriety tests provides 

this Honorable Court with little evidence to establish 

that the consumption was of such a level to render 

Mr. Lewis incapable of safe driving. 

Appellant’s Brief at 17-18. 
J-S48026-14

- 5 - 

In denying relief, the trial court reasoned: 

 

In finding [Lewis] guilty, your undersigned 

jurist believed the witnesses presented by the 

Commonwealth after having the opportunity to 

examine the credibility of [forensic scientist] Larissa 

Sorochka, [Pennsylvania State] Trooper [Joseph] 

Buznik, and [Kingston Township Police] Officer 

Huntzinger. It is fair and reasonable to conclude that 

we weighed the evidence affording the necessary 

weight and credibility to the Commonwealth’s 

witnesses and did so beyond a reasonable doubt. 

Trial Court Opinion, 02/11/2014, at 5-6. 

We have reviewed the record, the trial court opinion, the briefs and 

the relevant law and conclude that the opinion authored by Judge Augello 

correctly and thoroughly disposes of the claims raised by Lewis on appeal. 

Accordingly, we affirm on the basis of Judge Augello’s opinion and direct the 

parties to attach copies of said opinion in the event of further proceedings in 

this matter. 

Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/6/2014 
Circulated 07/24/2014 02:57 PM
Circulated 07/24/2014 02:57 PM
Circulated 07/24/2014 02:57 PM
Circulated 07/24/2014 02:57 PM
Circulated 07/24/2014 02:57 PM
Circulated 07/24/2014 02:57 PM