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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 min imum of 21 days to a maximum of 6 months of house arrest with electroni c monitoring under an intermediate punishment program 1 for driving under the influence

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* Retired Senior Judge assigned to the Superior Court.

1 Additional terms and conditions of Lewis’ sentence incl uded: an imposition of an $1,000.00 fine[;] the Defendant was to enroll, attend and complete the Alcohol Highway Safet y Program[;] undergo evaluation for drug/alcohol treat ment if recommended[;] participate in 15 hours of community service and a [Pennsylvania Department of Transportatio n] 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

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general impairment and for driving under the influe nce – 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 cla ims is as follows: The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or n one

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2 75 Pa.C.S. §§ 3802(a)(1), (c), respe ctively. Lewis’ conviction under section 3802(a)(1) merged into his section 3802(c) convicti on for sentencing purposes. See Trial Court Opinion, at 1; 42 Pa.C.S. § 9765 (relat ing 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 Februa ry 11, 2014, the trial court filed its Pa.R.A.P. 1925(a) opinion. Although L ewis 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 no t 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 i s 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 test imony, 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 mak e 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 resul t, the Commonwealth’s evidence of his blood alcohol content shock s the conscience. In support, Lewis asserts that Sorochka lacked knowledge regarding the calibration date for the pipettes used f or testing, the date of expiration of Lewis’ blood sample (or whether testing took palce before the sample expired); and the date of expiration or reten tion times of the control sample. Appel lant’s Brief at 12

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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 con centration should not be considered in determining whether he was capable of safe driving[ and t]he remaining evidence presented at trial was of insuf ficient weight to establish that [] Lewis was incapable of safe d riving.” 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 establi sh 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

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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 author ed by Judge Augello correctly and thoroughly disposes of the claims raised by Lewis on appeal.
Acco rdingly, we affirm on the basis of Judge Augello’s op inion 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: 8/6/2014Circulated 07/24/2014 02:57 PMCirculated 07/24/2014 02:57 PMCirculated 07/24/2014 02:57 PMCirculated 07/24/2014 02:57 PMCirculated 07/24/2014 02:57 PMCirculated 07/24/2014 02:57 PM