J-S41013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ZACHARY ALAN BAYLER,

Appellant No. 3173 EDA 2015

Appeal from the Judgment of Sentence October 20, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0001325-2015

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 14, 2016

Appellant, Zachary Alan Bayler, appeals from the judgment of 

sentence of three to six months’ incarceration, imposed after he was 

convicted of driving under the influence (DUI) - general impairment, 75 

Pa.C.S. § 3802(a)(1), and speeding, 75 Pa.C.S. § 3361(a)(3). Appellant 

challenges the sufficiency of the evidence to support his DUI conviction. 

After careful review, we affirm.

Appellant was charged with the above-stated offenses and proceeded 

to a non-jury trial on July 20, 2015. There, Officer Andrew Adams of the 

Plymouth Township Police Department testified that he was conducting 

routine patrol when he observed Appellant’s silver Mercedes traveling “much 

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*

Former Justice specially assigned to the Superior Court.
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faster if not double the posted speed limit.” N.T. Trial, 7/20/15, at 4, 5-6. 

Officer Adams immediately activated his lights and siren and began following 

Appellant’s car. Id. at 7. As the officer pursued Appellant’s car for 

approximately one-half mile, he observed Appellant “swerve[] two times 

from the direct travel lane into the turning lane.” Id. at 8, 9. Once 

Appellant stopped his vehicle and Officer Adams made contact with him, the 

officer noticed Appellant “had red glassy eyes” and “an odor of alcoholic 

beverage coming from what appeared to be his person.” Id. at 6, 7. Officer 

Adams further testified that Appellant “had severely slurred speech.” Id. at 

7. 

Officer Andrew Monaghan of the Plymouth Township Police Department 

also testified at trial, stating that he responded to Officer Adams’ traffic stop 

of Appellant’s vehicle. Id. at 15. Officer Monaghan, who has training in the 

detection of impaired drivers, explained that when he came into contact with 

Appellant, he noticed an odor of alcohol emanating from Appellant’s person, 

and observed that Appellant’s eyes were glassy and bloodshot. Id. at 15, 

17. The officer also noticed that Appellant was “slurring his speech.” Id. at 

17. Officer Monaghan asked Appellant if he had been drinking, and 

Appellant admitted that “he had [consumed] two beers.” Id.

The officer further testified that he conducted three field sobriety tests 

with Appellant, including “the fingertip to the tip of [the] nose[,]” the “nine 

steps heel to toe[,]” and “the one leg stand” tests. Id. at 17-18. During the 

“finger to nose test,” Officer Monaghan observed that Appellant “was 
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swaying and he was having a hard time maintaining his balance.” Id. at 18. 

Officer Monaghan also testified that during the next “heel to toe contact” 

test, Appellant “failed to make heel to toe contact and also ... took ten steps 

out, nine steps back and the entire time he did not count his steps.” Id. at 

18. Finally, the officer asked Appellant to perform the “one legged stand” 

test. Officer Monaghan described Appellant’s performance on this test, as 

follows:

[Officer Monaghan]: On that night [Appellant] raised his ... right 

foot off the ground first. He was able to hold his foot off the 

ground for approximately three to four seconds before placing it 

down. He then tried the test again. He raised it up, again, once 

again he maintained about three to four seconds before placing 

it on the ground. At which point he then advised me that he had 

broken his left ankle at some point and I advised him that he 

could then lift his left leg off the ground and stand on his right 

leg. At which point he advised me again that he had broke [sic] 

his left leg and he refused to continue with the test.

Id. at 19. Based on Appellant’s performance on these three field sobriety 

tests, and considering “the smell of alcohol, the glassy bloodshot eyes, [and] 

the slurred speech,” Officer Monaghan concluded that Appellant was 

committing the offense of DUI. Thus, Appellant was arrested and taken to 

the police department. Id. 

Once there, Appellant was asked to submit to a certified breath test. 

Id. at 20. In response, Appellant asked to speak to an attorney. Id. 

Officer Monaghan informed Appellant “that he has no right to speak to an 

attorney or ask to talk to anyone else[,]” but Appellant again asked to talk 
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to an attorney. Id. The officer then asked Appellant if he was refusing the 

test, and Appellant responded, “yes.” Id. at 21.

Based on this evidence, the trial court convicted Appellant of DUI and 

speeding.1 On October 20, 2015, the court sentenced him to three to six 

months’ imprisonment, as well as to fines and court costs.2 Appellant filed a 

timely notice of appeal, and also timely complied with the trial court’s order 

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. Herein, he presents one issue for our review:

Whether Appellant’s conviction of [DUI-]Incapable of 

Safely Driving must be reversed where the record indicates that 

the trial judge, sitting as fact finder, concluded that under the 

law, a fact finder had no choice but to find Appellant guilty of 

[DUI] because Appellant refused to submit to blood alcohol 

testing, where there was otherwise insufficient evidence for the 

judge to make a determination as to whether or not Appellant 

was impaired beyond a reasonable doubt?

Appellant’s Brief at 5.

Preliminarily, we note that, 

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1 We note that in rendering its verdict, the trial court stated that it was 

“totally disregard[ing]” the evidence about field sobriety tests performed on 

Appellant, as Appellant testified at trial that he had a medical condition that 

impacted his ability to perform those tests. See N.T. Trial at 45-46, 48 

(Appellant’s testifying regarding his medical condition); Id. at 59-60 (court’s 

explaining it would not consider the evidence regarding the field sobriety 

tests).

2 Appellant’s sentence of incarceration stemmed from the fact that this was 

his second DUI offense, and he refused to take a breathalyzer test. See 75 

Pa.C.S. § 3804(c)(2)(i) (setting forth a minimum sentence of 90 days under 

such circumstances). 
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[a]s a general matter, our standard of review of sufficiency 

claims requires that we evaluate the record “in the light most 

favorable to the verdict winner giving the prosecution the benefit 

of all reasonable inferences to be drawn from the evidence.” 

“Evidence will be deemed sufficient to support the verdict when 

it establishes each material element of the crime charged and 

the commission thereof by the accused, beyond a reasonable 

doubt.” Nevertheless, “the Commonwealth need not establish 

guilt to a mathematical certainty.” Any doubt about the 

defendant's guilt is 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. 

The Commonwealth may sustain its burden by means of 

wholly circumstantial evidence. Accordingly, “[t]he fact that the 

evidence establishing a defendant's participation in a crime is 

circumstantial does not preclude a conviction where the evidence 

coupled with the reasonable inferences drawn therefrom 

overcomes the presumption of innocence.” 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 

elements of a defendant's crimes beyond a reasonable doubt, 

the appellant's convictions will be upheld. 

Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013) 

(internal citations omitted).

Here, Appellant challenges his conviction for DUI under section 

3802(a)(1), which states:

(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). This Court has also explained:
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“[S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense, 

requiring that the Commonwealth 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, 604 Pa. 

103, 114–116, 985 A.2d 871, 879 (Pa.2009). With respect to the 

type, quantum, and quality of evidence required to prove a 

general impairment violation under Section 3802(a)(1), the 

Pennsylvania Supreme Court in Segida continued:

Section 3802(a)(1), like its predecessor [statute], is a 

general provision and provides no specific restraint upon 

the Commonwealth in the manner in which it may prove 

that an accused operated a vehicle under the influence of 

alcohol to a degree which rendered him incapable of safe 

driving.... 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 and 

the two hour time limit for measuring blood alcohol level 

does not apply. Blood alcohol level is admissible in a 

subsection 3801(a)(1) case only insofar as it is relevant to 

and probative of the accused's ability to drive safely at the 

time he or she was driving. The weight to be assigned 

these various types of evidence presents a question for the 

fact-finder, who may rely on his or her experience, 

common sense, 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 115–116, 985 A.2d at 879.

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013).
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In challenging the sufficiency of the evidence in the present case, 

Appellant essentially attacks the basis upon which the court allegedly 

premised its verdict. Specifically, he avers that, 

[t]he trial judge found [him] guilty based upon an error of law 

under which the court believed it had no[] choice but to adjudge 

Appellant guilty due to his failure to submit to [breathalyzer] 

testing. While the trial judge concluded that Appellant’s blood 

shot eyes, slurred speech and smell of alcohol gave probable 

cause to arrest [Appellant], [the court] acknowledged that other 

than the foregoing indicia of impairment, there was no evidence 

to permit the court to make any further determination as to 

whether Appellant was impaired. In this regard the trial judge 

indicated that while she could conclude that the indicia of 

impairment established probable cause, she could not conclude 

based upon the evidence presented that Appellant was impaired 

beyond a reasonable doubt as to find Appellant guilty of [DUI-] 

Incapable of Safely Driving.

On the contrary, the trial judge’s finding of guilt was 

predicated on her mistaken belief that a fact[-]finder had no 

choice but to find Appellant guilty because he refused to submit 

to blood or breath testing when police had probable cause to 

arrest [Appellant] for driving under the influence. The judge’s 

legal error in this regard is no different than if the judge sitting 

with a jury instructed the jury that they must find [Appellant] 

guilty if the police had probable cause to arrest him for [DUI] 

and if they concluded that Appellant refused Blood Alcohol 

Testing. Such a standard of law contravenes the wellestablished burden of proof in a criminal trial and the provisions 

of 75 Pa.C.S. § 1547(e) which prohibit presumptions based 

upon an accused’s refusal of testing. 

Appellant’s Brief at 16-17. 

Initially, Appellant’s comparison of his case to a court’s providing a 

jury with a legally incorrect instruction is unavailing. We are not reviewing 

the propriety of the court’s jury instructions; instead, we are evaluating the 

sufficiency of the evidence to sustain Appellant’s conviction. Our standard of 
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review of a sufficiency claim does not include an assessment of the reasons 

for the fact-finder’s verdict, which is precisely what Appellant is asking us to 

do in this case.3 Rather, it is well-settled that in reviewing a sufficiency 

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3

In any event, we note that Appellant’s interpretation of the court’s 

reasoning is questionable. In rendering its verdict, the court stated, in 

pertinent part:

[The Court:] [T]his Court has heard overwhelming evidence, 

consistent evidence, that there was slurred speech, red, glassy, 

bloodshot eyes, an odor of alcohol about the person that would 

give or justifiably or even reasonably give an officer reasonable 

suspicion or cause to make an arrest in this matter.

...

So today I have heard convincing evidence ... that there 

was probable cause for an arrest in this matter, but I don’t have 

anything other than the indicia of impairment to tell me whether 

or not [Appellant] was intoxicated or impaired, and that’s 

because [Appellant] refused [testing]. So there is a statute for 

that and in that case this statute is captured under Count 1 of 

the criminal charge in this matter, which is 1325 of 2015. On 

that Bill of Information it states 3804(c) where [Appellant] 

refused testing of the blood, and in this case that happened, so I 

have to find you guilty of that because it happened. I haven’t 

heard anything where it didn’t happen, and I heard credible 

testimony and evidence that you did refuse the request for 

blood. 

So I find you guilty, [Appellant], of Count 1 [DUI] based 

on the evidence that was presented before me.

N.T. Trial, 7/20/15, at 60-61.

The court’s statement, read as a whole, is rather confusing. Again, 

Appellant interprets the court’s remarks as indicating that the court believed 

it must convict him of DUI simply because he refused the breathalyzer test. 

However, an equally reasonable interpretation of the court’s statement, 

especially considering the court’s reference to 75 Pa.C.S. § 3804(c) 

(Footnote Continued Next Page)
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claim, we are required to evaluate the record, in the light most favorable to 

the verdict winner, and to determine if the evidence proved each material 

element of the crime charged beyond a reasonable doubt. See Teems, 74 

A.3d at 145. Having done so in this case, we easily conclude that the 

evidence was sufficient to convict Appellant of DUI under section 3802(a)(1).

Namely, the testimony of Officer Adams established that Appellant’s 

vehicle was speeding, and Appellant twice swerved into the turning lane 

while the officer was following him. Both Officers Adams and Monaghan 

noticed a smell of alcohol on Appellant’s person, and observed that his eyes 

were glassy, red, and bloodshot, and he was slurring his speech. Appellant 

also admitted that he was drinking that evening. He then failed two field 

(Footnote Continued) _______________________

(discussing the penalties where the defendant refused testing of blood or 

breath), is that the court was explaining why it must conclude that Appellant 

refused chemical testing, thus triggering the penalty provisions set forth in 

section 3804(c). The court’s discussion, in its Rule 1925(a) opinion, 

regarding why it found the evidence sufficient to convict Appellant of DUI, 

supports our interpretation, rather than Appellant’s. See Trial Court Opinion 

(TCO), 12/12/15, at 4 (discussing the totality of evidence that proved 

Appellant committed DUI, including the officers’ testimony regarding 

Appellant’s driving, his physical appearance and smell, his admission to 

drinking, and his refusal to submit to a breathalyzer). Moreover, the court 

was permitted to consider Appellant’s refusal to submit to a breathalyzer as 

evidence of his guilt. See 75 Pa.C.S. § 1547(e) (permitting the defendant’s 

failure to submit to chemical testing to be admitted as evidence where the 

defendant is charged with a violation of section 3802, and stating that such 

evidence “may be considered along with other factors concerning the 

charge”).
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sobriety tests, and essentially refused to participate in a third.4 Based on his 

performance on those tests, and Officer Monaghan’s observations of 

Appellant’s physical appearance, his slurred speech, and the odor of alcohol 

emanating from his person, the officer concluded that Appellant was DUI. 

After Appellant was arrested, he refused to take a breathalyzer test to 

establish his level of intoxication. This evidence was sufficient to 

demonstrate that Appellant was driving a vehicle when he was incapable of 

safely doing so due to the consumption of alcohol. See Commonwealth v. 

Hartle, 894 A.2d 800, 804 (Pa. Super. 2006) (finding sufficient evidence to 

sustain Hartle’s conviction of DUI (general impairment) where an officer 

testified that Hartle’s breath smelled of alcohol, his eyes were bloodshot and 

glassy, he kept repeating himself, he refused to participate in field sobriety 

tests or take a breath test, and he swayed when standing outside his 

vehicle). 

Judgment of sentence affirmed.

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4 The trial court’s decision to “totally disregard the field sobriety tests” was 

essentially an assignment of weight (or lack thereof) to that evidence. 

However, in reviewing a sufficiency claim, we consider “all the evidence 

admitted at trial....” Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 

2008) (citations omitted; emphasis added). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2016