J-S29039-12

_____________________ 

* Former Justice specially assigned to the Superior Court. 

** Retired Senior Judge assigned to the Superior Court. 

2014 PA Super 213

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

ROBERT HOUCK 

 Appellant No. 2709 EDA 2011

Appeal from the Judgment of Sentence July 28, 2011

In the Court of Common Pleas of Pike County 

Criminal Division at No(s): CP-52-CR-0000282-2010 

BEFORE: GANTMAN, J., FITZGERALD, J. * and PLATT, J.** 

OPINION BY GANTMAN, J.: FILED SEPTEMBER 26, 2014 

 Appellant, Robert Houck, appeals from the judgment of sentence 

entered in the Pike County Court of Common Pleas, following his jury trial 

conviction for driving under the influence (“DUI”).1

 We affirm. 

 The trial court opinion set forth the relevant facts of this case as 

follows: 

On March 21, 2010[,] Trooper Ives was on patrol working 

from three p.m. to eleven p.m. Trooper Ives was traveling 

on Roemersville Road in Greentown, Pike County, when he 

came behind a large Ford pickup truck. Traveling behind 

the truck for approximately two miles, Trooper Ives 

observed the vehicle weaving across the lane of travel 

____________________________________________ 

1

 75 Pa.C.S.A. § 3802(b). To the extent the certified record indicates 

Appellant’s conviction was for 75 Pa.C.S.A. § 3802(c), that is error and must 

be corrected. 
J-S29039-12

- 2 - 

crossing the double yellow line and onto the fog line for 

some distance before Trooper Ives activated his lights. 

Trooper Ives identified Appellant as the person driving the 

vehicle. He then approached the vehicle and after 

initiating a conversation with Appellant detected an odor of 

an alcoholic beverage emanating from Appellant’s breath. 

Appellant indicated that he had [drunk] two beers. 

Trooper Ives transported Appellant, in custody, back to the 

Pennsylvania State Police barracks. 

Trooper Ives stopped Appellant at 20:32 and began to 

transport Appellant back to the barracks at 21:19. At the 

barracks, Trooper Ives read Appellant his Implied Consent 

Warnings, after which Appellant agreed to give a breath 

sample. 

Appellant blew into the Data Master DMT which is 

approved in the Commonwealth for purposes of performing 

blood alcohol concentration tests. Prior to administering 

the test, Trooper Ives observed [Appellant] for twenty

minutes to determine that he had not vomited or smoked 

or consumed alcohol. 

Trooper Ives also was required to run a blank test with

Appellant in an adjacent room. Between the two rooms is 

a two way mirror so Appellant could be observed, and 

Appellant was no more than five to ten feet from Trooper 

Ives. Given the arrangement of the rooms, Trooper Ives 

admitted that he could not observe Appellant while Trooper 

Ives was running the blank test. However, when entering 

the room, Trooper Ives did not see any indications that

Appellant drank an alcoholic beverage or had smoked or

vomited. The test was reported on the machine as 20:34. 

Trooper Ives determined the time stamp on the machine 

was incorrect and left a note for his supervisor. Trooper 

Ives noted that the correct time of the test was 21:34. 

There were two samples of Appellant’s breath taken that 

night: the first registered a 0.170 per cent; the second

registered a 0.171 per cent. As Trooper Ives is required 

by law to take the lower sample, the final result of 

Appellant’s breath test was a 0.170 per cent. 
J-S29039-12

- 3 - 

Trooper Kevin Varco, is the Maintenance Officer for the 

Data Master DMT. He testified regarding the various

calibrations that must be done to maintain the machine’s 

accuracy. The machine was tested for accuracy on March 

21, 2010, the day Appellant’s breath was tested. He also 

explained that the machine’s time was incorrect due to a 

failure in adjusting it to daylight saving's time. 

At the beginning of [Appellant’s] case in chief, James

Gifford testified that the condition of Roemersville Road is 

rated as the worst it could be. The road is in deplorable 

condition with pot holes. He also testified that people 

drive over the center lines in order to avoid the hazards on 

the road. However, he could not testify as to how the

road’s condition related to Appellant’s blood alcohol 

concentration. 

Trooper Ives was recalled for rebuttal and testified that he 

took into account the road’s condition when he decided to 

pull Appellant’s vehicle over. Trooper Ives observed areas 

of the road that Appellant could have safely kept his 

vehicle in the lane of traffic and there were several areas 

that the road was in good condition in which Appellant did 

not have to cross the center lines in order to drive safely. 

With that both sides rested. 

(Trial Court Opinion, dated December 5, 2011, at 1-4). We add the 

following from the certified record. The Commonwealth charged Appellant 

with one count of DUI under 75 Pa.C.S.A. § 3802(c) and two summary 

traffic offenses. Appellant filed a motion to suppress the traffic stop for lack 

of reasonable suspicion/probable cause, which the court denied after a 

hearing. The case proceeded to a jury trial on Count 1, Section 3802(c) 

DUI; the parties agreed the court would adjudicate the summary offenses. 

At the close of the trial, the court instructed the jury to first determine 

if Appellant had driven his vehicle and, within two hours of driving, Appellant 
J-S29039-12

- 4 - 

had a blood alcohol content in excess of 0.08%. If the jury answered “yes” 

to that inquiry, the court instructed the jury to select the highest BAC range 

that the Commonwealth had proven beyond a reasonable doubt: 0.08% to 

0.09%; 0.10% to 0.159%; or 0.16% and above. The verdict slip contained 

identical instructions. Significantly, Appellant did not object to the jury 

charge or to the verdict slip. On May 18, 2011, the jury found Appellant 

guilty of DUI of 0.08% or higher and selected a BAC range of 0.10% to 

0.159%. Appellant did not object to that verdict when entered. The court 

also found Appellant guilty of the summary offenses of careless driving and 

driving on roadways laned for traffic. 

 Over two months later, Appellant filed a motion for extraordinary relief 

at sentencing on July 28, 2011. Appellant asserted the Commonwealth had 

charged him with only one count of DUI (BAC in excess of 0.16%) under 

Section 3802(c). According to Appellant, the jury’s chosen BAC range of 

0.10% and 0.159% meant that the jury had actually acquitted Appellant of 

Section 3802(c) as charged. Based on the jury’s factual finding of a BAC 

range lower than charged, Appellant asked the court to enter a verdict of 

“not guilty” on the only charge in the information. (See Motion for 

Extraordinary Relief, filed 7/28/11, at 1-2.) The court denied the motion. 

The court then sentenced Appellant to thirty (30) days to six (6) months’ 

imprisonment, plus fines and costs covering the DUI and summary 

convictions. The court’s sentence was consistent with a sentence for a 
J-S29039-12

- 5 - 

Section 3802(b) DUI conviction. The court continued Appellant’s bail 

pending an appeal, provided an appeal was timely filed. Appellant timely 

filed a post-sentence motion on August 4, 2011, asserting essentially the 

same challenge to his DUI conviction and sentence. Following a hearing on 

the post-sentence motion, on September 6, 2011, the court denied the 

motion.2

 Appellant timely filed a notice of appeal on October 5, 2011. On 

October 11, 2011, the court ordered Appellant to file a concise statement of 

errors complained on appeal pursuant to Pa.R.A.P. 1925(b). Appellant 

timely complied on November 1, 2011. 

 Appellant raises three issues for our review: 

DID THE TRIAL COURT [ERR] WHEN IT REFUSED TO 

ENTER A VERDICT OF NOT GUILTY AS IT EFFECTIVELY DID

NOT ACCEPT THE JURY’S FINDING OF FACT THAT 

APPELLANT DID NOT HAVE A BLOOD ALCOHOL CONTENT 

OF 0.160% OR HIGHER, A NECESSARY ELEMENT OF 

COUNT I? 

DID THE TRIAL COURT COMMIT ERROR WHEN IT ENTERED 

A VERDICT NOT SUPPORTED BY SUFFICIENT EVIDENCE IN 

LIGHT OF THE JURY’S FINDING OF FACT? 

DID THE TRIAL COURT COMMIT ERROR IN HOLDING THAT 

PROBABLE CAUSE EXISTED TO TAKE APPELLANT INTO 

CUSTODY, SUBJECT HIM TO A BREATH TEST AND 

SUBSEQUENTLY ADMITTING THE BREATH TEST AFTER THE 

EVIDENCE SHOWED THE SAME TO BE UNRELIABLE?

(Appellant’s Brief at 7). 

____________________________________________ 

2

 Appellant requested and included in the certified record only the trial 

transcript; he did not request or include transcripts from the suppression, 

sentencing, or post-sentence motion hearings. 
J-S29039-12

- 6 - 

 In issues one and two, Appellant argues the Commonwealth charged 

him with only one count of DUI, under Section 3802(c), which requires proof 

beyond a reasonable doubt that, within two hours of driving, Appellant had a 

BAC of 0.16% or higher. Appellant claims the criminal information did not 

list a charge under Section 3802(b), where the BAC is between 0.10% and 

0.159%. Appellant avers the jury’s finding of a BAC of 0.10% to 0.159% 

was inconsistent with a conviction under Section 3802(c), which requires a 

BAC of 0.16% or higher. Appellant complains the Commonwealth did not 

move to amend the information to include the lower BAC levels. Appellant 

asserts the jury’s finding of a BAC in the range of 0.10% to 0.159% 

precludes a conviction under Section 3802(c) as a matter of law, because 

the jury effectively convicted Appellant of Section 3802(b) DUI, an offense 

not charged. Appellant contends the jury’s factual finding of a BAC of 0.10% 

to 0.159% meant that the court was obligated to enter a “not guilty” verdict 

on the only charge in the information. Appellant rejects any notion that the 

guilty verdict on Section 3802(b) DUI was permissible as a conviction of a 

“lesser-included offense.” Appellant relies on Commonwealth v. Jackson, 

82 Pa. D. & C.4th 225 (Crawford County 2007) to suggest that a Section 

3802(b) offense cannot be a lesser-included offense of a Section 3802(c) 

offense because they are “mutually exclusive.” Appellant likewise rejects 

the court’s conclusion that his conviction was simply the result of an 

inconsistent or compromise verdict, because Appellant was charged with 
J-S29039-12

- 7 - 

only one offense. 

 Appellant further maintains the jury specifically determined the 

evidence did not prove one of the necessary elements of Section 3802(c) as 

charged, i.e., a BAC of 0.16% or higher. Appellant states: “The jury 

concluded that the evidence of a BAC of 0.160% or higher was ‘so weak and 

inconclusive’ that it found a BAC...between 0.10% and 0.159%.” 

(Appellant’s Brief at 14). Appellant submits the jury found the evidence was 

insufficient to support an element of the crime charged. For these reasons, 

Appellant concludes his conviction is at odds with the crime charged; and the 

court should have set aside the verdict. We disagree. 

When examining the sufficiency of evidence: 

The standard we apply...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 factfinder to find every element of the crime beyond a 

reasonable doubt. In applying [this] 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 factfinder 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. Moreover, in applying the above 

test, the entire record must be evaluated and all evidence 

actually received must be considered. Finally, the [finder] 

of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, 

part or none of the evidence. 
J-S29039-12

- 8 - 

Commonwealth v. Barnswell Jones, 874 A.2d 108, 120-21 (Pa.Super. 

2005) (quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

The Crimes Code defines the relevant offense of DUI as follows: 

§ 3802. Driving under influence of alcohol or 

controlled substance

(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. 

(2) 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 alcohol concentration in the individual’s blood or 

breath is at least 0.08% but less than 0.10% within 

two hours after the individual has driven, operated or 

been in actual physical control of the movement of 

the vehicle. 

(b) High rate of alcohol.—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 alcohol concentration in the 

individual’s blood or breath is at least 0.10% but less 

than 0.16% within two hours after the individual has

driven, operated or been in actual physical control of the 

movement of the vehicle. 

(c) Highest rate of alcohol.—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 alcohol concentration in the 

individual’s blood or breath is 0.16% or higher within two 
J-S29039-12

- 9 - 

hours after the individual has driven, operated or been in 

actual physical control of the movement of the vehicle. 

75 Pa.C.S.A. § 3802. 

Established Pennsylvania law states a defendant can be convicted of a 

crime that was not actually charged when the uncharged offense is a lesserincluded offense of the charged crime. See Commonwealth v. Sims, 591 

Pa. 506, 919 A.2d 931 (2007) (citing Commonwealth v. Carter, 482 Pa. 

274, 393 A.2d 660 (1978)). “As long as the conviction is for a lesserincluded offense, the defendant will have been put on notice of the charges 

against him and can adequately prepare a defense.” Commonwealth v. 

Reese, 725 A.2d 190, 191 (Pa.Super. 1999), appeal denied, 559 Pa. 716, 

740 A.2d 1146 (1999). At the heart of this issue is whether the defendant 

had fair notice and an opportunity to present an adequate defense. 

Commonwealth v. Pemberth, 489 A.2d 235, 237 (Pa.Super. 1985). “This 

end has frequently been achieved in one of two ways: either the 

Commonwealth will give an accused express notice by charging him with the 

less culpable offense or it will give him implicit notice through the 

information where the proven, but uncharged crime is a lesser-included 

offense of the charged, but unproven, offense.” Id. 

There are “three varying approaches” to determine what constitutes a 

lesser-included offense: the statutory-elements approach, the cognatepleadings approach, and the evidentiary approach. Sims, supra at 517, 
J-S29039-12

- 10 - 

919 A.2d at 938. The Supreme Court summarized these approaches as 

follows: 

The statutory-elements approach began at common law 

and is used in the federal courts and in various state 

courts. Under this approach, the trial court is required to 

identify the elements of both the greater charge and the 

lesser charge and determine whether it is possible to 

commit the greater offense without committing the lesser

offense. If it is not possible, then the lesser offense is 

considered a lesser-included offense of the greater crime. 

Pursuant to the cognate-pleading approach, there is no

requirement that the greater offense encompass all of the 

elements of the lesser offense. Rather, it is sufficient that 

the two offenses have certain elements in common. The 

focus of this approach is on the pleadings as the trial court 

must determine whether the allegations in the pleadings 

charging the greater offense include allegations of all of 

the elements of the lesser offense. If so, the lesser charge 

is considered a lesser-included offense of the greater 

charge. As this approach centers on the pleadings of the 

case, notice and due process violations are not generally 

grave concerns. 

Finally, the evidentiary approach looks to the actual

evidence established at trial to assess the relationship 

between the greater and lesser charges. The lesser 

offense may have elements that are distinct from the 

greater offense and still be considered a lesser-included 

offense, as long as the evidence presented at trial to prove 

the greater offense actually establishes the elements of the 

lesser offense. Generally, courts adopting this approach

require that the same underlying conduct establish the

elements of both offenses. 

Sims, supra at 517-518, 919 A.2d at 938. Sims held the defendant could 

be convicted of an “attempt” crime, although the Commonwealth had 

charged the defendant only with the completed offense, because the attempt 

crime was a cognate offense of the completed crime. Id. at 524, 919 A.2d 
J-S29039-12

- 11 - 

at 942. Sims represents the proposition that a jury can convict a defendant 

of an uncharged lesser-included offense but not of an uncharged greater

offense. Id. See, e.g., Commonwealth v. Haight, 50 A.3d 137 

(Pa.Super. 2012) (affirming conviction for uncharged Section 3802(b) as 

cognate offense of charged Section 3802(c), where defense strategy called 

into question accuracy of blood test results; defense strategy led to 

conviction under Section 3802(b)); Commonwealth v. Sinclair, 897 A.2d 

1218, 1222 (Pa.Super. 2006) (ensuring consistency in case law to declare 

Section 3802(b) as cognate offense of Section 3802(c), where case arose 

from same facts already known to defendant and offenses involved same 

basic elements). 

Additionally, the trial court is required to instruct the jury as to the 

applicable law of the case. Commonwealth v. Washington, 549 Pa. 12, 

700 A.2d 400 (1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 

L.Ed.2d 742 (1998). A jury charge on a lesser-included offense is 

permissible so long as it does not offend the evidence presented, i.e., there 

is some disputed evidence concerning an element of the greater 

charge or the undisputed evidence is capable of more than one rational 

inference. Commonwealth v. Hawkins, 614 A.2d 1198, 1203 (Pa.Super. 

1992) (en banc). If a rational jury, given the record evidence, can find the 

defendant guilty of the lesser-included offense, the court should instruct the 

jury on the law of the lesser-included offense. Commonwealth v. Ferrari, 
J-S29039-12

- 12 - 

593 A.2d 846, 848 (Pa.Super. 1991), appeal denied, 533 Pa. 607, 618 A.2d 

398 (1992). See also Commonwealth v. Phillips, 946 A.2d 103, 110 

(Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. 

denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (reiterating 

jury charge on lesser-included offense should be given if record evidence 

would reasonably support verdict on lesser offense). 

Moreover, the failure to make a timely and specific objection before 

the trial court at the appropriate stage of the proceedings will result in 

waiver of the issue. See Commonwealth v. Shamsud-Din, 995 A.2d 

1224, 1226 (Pa.Super. 2010) (reiterating failure to object to jury instruction 

constitutes waiver of error in charge); Commonwealth v. duPont, 730 

A.2d 970, 984-85 (Pa.Super. 1999), appeal denied, 561 Pa. 669, 749 A.2d 

466 (2000), cert. denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d 276 

(2000) (stating failure to object to particular verdict sheet constitutes waiver 

of its use). 

Well-settled Pennsylvania law permits inconsistent verdicts, provided 

sufficient evidence supports the conviction. Commonwealth v. Miller, 613 

Pa. 584, 35 A.3d 1206 (2012); Commonwealth v. King, 990 A.2d 1172, 

1178 (Pa.Super. 2010), appeal denied, 617 Pa. 624, 53 A.3d 50 (2012); 

Commonwealth v. Trill, 543 A.2d 1106, 1111 (Pa.Super. 1988), appeal 

denied, 522 Pa. 603, 562 A.2d 826 (1989). “[I]nconsistent verdicts, while 

often perplexing, are not considered mistakes and do not constitute a basis 
J-S29039-12

- 13 - 

for reversal.” Commonwealth v. Rose, 960 A.2d 149, 158 (Pa.Super. 

2008), appeal denied, 602 Pa. 657, 980 A.2d 110 (2009) (citation omitted). 

“An acquittal cannot be interpreted as a specific finding in relation to some 

of the evidence.” Miller, supra at 596, 35 A.3d at 1213. 

Instantly, the Commonwealth charged Appellant with one count of DUI 

under Section 3802(c), plus related summary offenses, and presented 

evidence that Appellant’s Breathalyzer results indicated a BAC of 0.17% 

within two hours of the traffic stop. At trial, the defense disputed the BAC 

level by challenging the accuracy of the testing machine because it had not 

been adjusted for daylight savings time. Counsel sought to characterize the 

time calibration as suggestive of a malfunction of the testing equipment to 

call into question the BAC measurement. The court’s unopposed jury 

instructions allowed the jury to decide if the Commonwealth had proved 

Appellant was DUI and, if so, to select from one of three separate BAC 

ranges according to the evidence presented at trial. The jury found 

Appellant guilty of DUI with a BAC between 0.10% and 0.159%, a range 

consistent with Section 3802(b). Appellant did not object to the verdict 

when entered. 

In response to Appellant’s issues one and two challenging the validity 

of his conviction, the trial court reasoned as follows: 

Pursuant to 75 Pa.C.S.A. § 3802(c), 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 concentration in the individual’s blood or breath 
J-S29039-12

- 14 - 

is 0.16 per cent or higher within two hours after the 

individual has driven, operated or been in actual physical 

control of the movement of the vehicle. Appellant argues 

in essence that this [c]ourt erred in not concluding that the 

jury acquitted Appellant of the charge of driving under the 

influenceふhighest rate in determining that Appellant's BAC 

was below 0.160 per cent. However, this [c]ourt finds the 

verdict to be similar to an inconsistent or compromise 

verdict and not a basis for reversal. 

* * * 

Viewing the evidence in the light most favorable to the 

Commonwealth and drawing all reasonable inferences 

therefrom, the jury was justified in concluding that 

Appellant operated a vehicle after imbibing a sufficient 

amount of alcohol that the alcohol concentration in his 

breath was not less than 0.10 per cent and not more than 

0.159 per cent. Trooper Ives testified that he followed 

Appellant’s vehicle before initiating the stop and 

subsequently administered the breath test in accordance 

with the laws of the Commonwealth. The test result was a 

0.170 per cent concentration. This is more than sufficient 

to allow the jury to determine the elements of the above 

offense beyond a reasonable doubt. 

Given the cross-examination by Appellant’s trial counsel, 

this [c]ourt recognizes that apparently the jury may not 

have felt comfortable with the complete accuracy of the

test or the manner in which it was administered, however, 

it is for the jury to decide as the finder of fact and assessor 

of credibility whom to believe and how to weigh the 

evidence. 

Further, the jury was given choices on the verdict for 

establishing Appellant’s blood alcohol concentration. The 

fact that the jury chose a BAC below 0.16 per cent despite 

the claim in the criminal information that this BAC was 

over 0.16 per cent represents a decision of the jury based 

upon the fact[s] presented. The jury was free to weigh the 

evidence and conclude for itself what the evidence proved 

and what they were satisfied was proven by that evidence. 

Inconsistent verdicts or compromise verdicts are not a 

basis for reversal. 
J-S29039-12

- 15 - 

(Trial Court Opinion at 5-7) (internal citations omitted). Here, the 

Commonwealth charged Appellant with one count of DUI under Section 

3802(c). Usually, inconsistent verdicts involve multiple counts. See Rose, 

supra at 157-58 (reiterating general principle that inconsistent verdict 

occurs when findings of fact with respect to one charge are seemingly 

incompatible with findings of fact on separate charge). Although the 

outcome of the trial was not technically an “inconsistent” verdict as we 

generally understand that term, we do agree with the court’s ultimate 

conclusion that Appellant’s conviction should be affirmed. 

In general, Section 3802(c) forbids an individual to drive, operate or 

be in actual physical control of the movement of a vehicle after imbibing a 

sufficient amount of alcohol such that the alcohol concentration in the 

individual’s blood or breath is 0.16% or higher within two hours after the 

individual has driven, operated or been in actual physical control of the 

movement of the vehicle. See 75 Pa.C.S.A. § 3802(c). As the relevant 

statute makes clear, Section 3802(c) includes all of the elements of Section 

3802(b), notwithstanding the ranges provided in the two sections, because a 

BAC of 0.16% necessarily subsumes all lesser BAC ranges as set forth in 

Section 3802(b) and Section 3802(a)(2). In other words, an individual with 

a BAC of 0.16% or above will unavoidably have a BAC of at least 0.08% to 

0.159%. Applying the three methods of Sims, supra, under the statutory 

elements approach to lesser-included offenses, it is not possible to commit a 
J-S29039-12

- 16 - 

Section 3802(c) offense without committing a Section 3802(b) offense. 

Under the cognate pleading approach to lesser-included offenses, an 

allegation of Section 3802(c) includes the elements of Section 3802(b). 

Finally, under the evidentiary approach to lesser-included offenses, we look 

to the actual evidence established at trial to assess the relationship between 

the greater charge and the lesser offense. Although the lesser offense of 

Section 3208(b) may call for a BAC range lower than the range in the 

greater offense of Section 3802(c), Section 3802(b) can still be considered a 

lesser-included offense, because the evidence at trial to prove the Section 

3802(c) offense established the elements of the Section 3802(b) offense. 

Consistent with courts adopting this approach, here the same underlying 

conduct established the elements of both offenses. See Sims, supra. The 

jury was therefore free to convict Appellant under Section 3802(b), even 

where the Commonwealth charged only Section 3802(c), as the record 

evidence at trial reasonably supported a verdict on the lesser offense of 

Section 3802(b). See Haight, supra. 

Furthermore, Appellant’s reliance on the Jackson case from Crawford 

County is misplaced for the following reasons. In Jackson, the defendant 

was charged with DUI at Sections 3802(a)(1) and 3802(c), based on a blood 

serum test result of 0.30%. The defendant asked for a jury instruction on 

Section 3802(a)(2) and Section 3802(b) as lesser-included offenses, which 

the court denied. Without any analysis, the court concluded the offenses 
J-S29039-12

- 17 - 

described in Sections 3802(a)(2), 3802(b), and 3802(c) were “mutually

exclusive.” Further, the court said the defendant had not properly 

contradicted the Commonwealth’s evidence, where the defendant relied on a 

chart “lifted from the Pennsylvania Liquor Control Board website without the 

cautionary disclaimers appearing elsewhere on the website. It is clearly not 

scientific evidence.” Jackson, supra at 229-30. 

On appeal, the defendant asked this Court to determine “whether the 

evidence presented could be viewed as supporting a conviction of a lower 

BAC level such that it was error for the trial court to refuse, upon request, to 

charge the jury with the lesser included BAC levels.” The defendant 

presented his issue in terms of a requested and denied jury instruction. This 

Court said: 

Appellant argues that, given his body weight and 

eyewitness testimony as to the amount of alcohol he 

consumed during the course of the evening in question, 

the jury could have concluded that his BAC was low 

enough to be convicted under § 3802(a)(2) or (b). 

Appellant testified that he was unsure how much he had to 

drink on the night in question, though it was probably six 

or seven beers. The Commonwealth’s expert testified that 

not all people metabolize alcohol at the same rate, 

depending upon how often they drink. Also, the visible 

effects of intoxication at a given BAC can vary from person 

to person. Appellant introduced a chart created by the 

Pennsylvania Liquor Control Board indicating that an 

individual of Appellant’s approximate weight who 

consumed six or seven beers would have a BAC of less 

than 0.16%. 

In light of Appellant’s vague testimony as to how much he 

drank, and in light of the Commonwealth’s expert’s 
J-S29039-12

- 18 - 

testimony summarized above, we do not believe the record 

contained any basis upon which a jury may find a precise

BAC for Appellant other than the one offered by the

Commonwealth. Sections 3802(a)(2) and (b) depend 

upon precise measurements of a defendant’s BAC. A 

conviction under either of those two provisions would have 

been based on conjecture. On the facts presented in 

this case, the jury could convict Appellant under § 

3802(c) or not at all. 

Commonwealth v. Jackson, No. 1342 WDA 2007, unpublished 

memorandum at 3-4 (Pa.Super. filed on December 9, 2008) (emphasis 

added). This Court concluded the defendant was not entitled to a jury 

instruction based on speculation. Both the trial court and this Court 

recognized that the defendant in Jackson had not properly contradicted the 

Commonwealth’s evidence, so a jury charge on Sections 3802(a)(2) and 

3802(b) would have offended the evidence presented at trial; and no 

rational jury could have found the defendant guilty of a lesser offense than 

the one charged.3

 See Washington, supra; Phillips, supra; Hawkins, 

supra; Ferrari, supra. Under the circumstances of the present case, 

Jackson is neither persuasive nor dispositive. 

____________________________________________ 

3

 To the extent the Jackson trial court and this Court on appeal suggested 

Sections 3802(a)(2) and 3802(b) were not lesser-included offenses of 

Section 3802(c), those decisions have no precedential value. See 

Commonwealth v. Phinn, 761 A.2d 176, 179 (Pa.Super. 2000), appeal 

denied, 567 Pa. 712, 785 A.2d 89 (2001) (reiterating rule that published 

decisions of Courts of Common Pleas and unpublished memorandum 

decisions of this Court lack precedential value beyond law of case as to 

parties directly involved). 
J-S29039-12

- 19 - 

Additionally, our Supreme Court recently held: “[T]he failure to 

forward a contemporaneous objection to the court’s verdict cannot be 

excused by resort to an ‘illegal sentence’ doctrine. Of course, every criminal 

defense claim on direct appeal, if successful, will result in some effect upon 

the ‘sentence,’ since it is the judgment of sentence that is the appealable 

order. But, that does not convert all claims into sentencing claims, much 

less into claims that a sentence was ‘illegal.’ For example, a sufficiency of 

the evidence claim, if successful, will result in a vacatur of sentence and 

outright acquittal; but, the Court has never held that such claims are nonwaivable merely because of the relief involved.” Commonwealth v. 

Spruill, ___ Pa. ___, ___, 80 A.3d 453, 461-62 (2013). Here, Appellant did 

not make a contemporaneous objection to the jury instruction, the verdict 

sheet, or the verdict. Under Spruill, Appellant arguably waived for purposes 

of this appeal his claim of error respecting the verdict. See id. As a result, 

we conclude Appellant is not entitled to relief on his first or second issues. 

In his third and last issue, Appellant argues Trooper Ives executed an 

illegal vehicle stop. Notwithstanding Appellant’s issue as presented that the 

police lacked probable cause to arrest Appellant (see Appellant’s Brief at 7), 

Appellant states the real issue here is whether reasonable suspicion actually 

existed to support the stop. (See id. at 15.) Appellant concedes the best 

evidence of his driving on the night in question is the dash cam tape of 

Trooper Ives following Appellant over a period of just less than 4 minutes, 
J-S29039-12

- 20 - 

when Appellant crossed the centerline four (4) times, rode the centerline 

(12) times and crossed the fog line two (2) times. Nevertheless, Appellant 

claims this evidence is not determinative of the issue. Notably, avers 

Appellant, when Trooper Ives conversed with Appellant on the tape, the 

trooper suggested Appellant’s driving was “a little much,” in response to 

Appellant’s protest that his maneuvers were due to the condition of the road. 

Appellant contends the tape would lead one to agree with Trooper Ives, if 

one could ignore the readily apparent poor condition of the road. To 

highlight the condition of the road, Appellant called Skip Gifford to testify at 

trial. Mr. Gifford is a 36-year veteran of the Department of Transportation 

and a nearly 50-year resident of the area immediately served by 

Roemersville Road described the road as “deplorable.” According to 

Appellant, he was forced to cross both the center and the fog lines due to 

potholes and ragged edges in the road. Appellant characterizes his actions 

as ordinary driving maneuvers necessitated by poor road conditions. Given 

the road conditions, Appellant insists he was not violating the Motor Vehicle 

Code, and Trooper Ives lacked justification for the traffic stop. Appellant 

concludes the court erred in refusing to suppress all evidence which flowed 

from the illegal traffic stop. We cannot agree. 

Appellate review of the denial of a suppression motion involves the 

following principles: 

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is limited to 
J-S29039-12

- 21 - 

determining whether the factual findings are supported by 

the record and whether the legal conclusions drawn from

those facts are correct. 

[W]e may consider only the evidence of the 

prosecution and so much of the evidence for the 

defense as remains uncontradicted when read in the 

context of the record as a whole. Where the record 

supports the findings of the suppression court, we 

are bound by those facts and may reverse only if the 

court erred in reaching its legal conclusions based 

upon the facts. 

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en 

banc) (internal citations and quotation marks omitted). Further, “It is within 

the suppression court’s sole province as factfinder to pass on the credibility 

of witnesses and the weight to be given their testimony.” Commonwealth 

v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth 

v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)). 

Section 6308 of the Motor Vehicle Code provides: 

§ 6308. Investigation by police officers

* * * 

 (b) Authority of police officer.ろWhenever a police 

officer is engaged in a systematic program of checking 

vehicles or drivers or has reasonable suspicion that a 

violation of this title is occurring or has occurred, he may 

stop a vehicle, upon request or signal, for the purpose of 

checking the vehicle’s registration, proof of financial 

responsibility, vehicle identification number or engine

number or the driver’s license, or to secure such other 

information as the officer may reasonably believe to be 

necessary to enforce the provisions of this title. 

* * * 
J-S29039-12

- 22 - 

75 Pa.C.S.A. 6308(b) (emphasis added). “If the officer has a legitimate 

expectation of investigatory results, the existence of reasonable suspicion 

will allow the stop−if the officer has no such expectations of learning 

additional relevant information concerning the suspected criminal activity, 

the stop cannot be constitutionally permitted on the basis of mere 

suspicion.” Commonwealth v. Chase, 599 Pa. 80, 92, 960 A.2d 108, 115 

(2008). “Indeed, the language of [Section] 6308 reflects this very intent. 

Stops based on reasonable suspicion are allowed for a stated investigatory 

purpose: ‘to secure such other information as the officer may reasonably 

believe to be necessary to enforce the provisions of this title.’ 75 Pa.C.S. § 

6308(b). This is conceptually equivalent to the purpose of a Terry4

stop. It 

does not allow all stops to be based on the lower quantum—it merely allows 

this for investigatory stops, consistent with the requirements of both federal 

and state constitutions. We interpret the legislature’s modification of 

[Section] 6308 as merely eliminating the statutory requirement of a greater 

level of information for a stop under the Vehicle Code than is constitutionally 

required for all other stops. As such, it is not unconstitutional.” Id. at 94-

95, 960 A.2d at 116. 

“To establish grounds for ‘reasonable suspicion’...the officer must 

articulate specific observations which, in conjunction with reasonable 

____________________________________________ 

4 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 
J-S29039-12

- 23 - 

inferences derived from these observations, led him reasonably to conclude, 

in light of his experience, that criminal activity was afoot and the person he 

stopped was involved in that activity.” Commonwealth v. Fulton, 921 

A.2d 1239, 1243 (Pa.Super. 2007), appeal denied, 594 Pa. 686, 934 A.2d 72 

(2007) (quoting Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa.Super. 

2006)). 

[T]o determine whether the police officer had reasonable 

suspicion, the totality of the circumstances must be 

considered. In making this determination, we must give 

due weight...to the specific reasonable inferences [the 

police officer] is entitled to draw from the facts in light of 

his experience. Also, the totality of the circumstances test 

does not limit our inquiry to an examination of only those 

facts that clearly indicate criminal conduct. Rather, even a 

combination of innocent facts, when taken together, may

warrant further investigation by the police officer. 

Fulton, supra at 1243 (quoting Commonwealth v. Hughes, 908 A.2d 

924, 927 (Pa.Super. 2006)) (internal citations and quotation marks 

omitted). If an objective view of the facts indicates an officer had specific, 

articulable facts to support the investigative stop, the law deems the stop 

reasonable. Chase, supra at 92, 960 A.2d at 114. 

Additionally, well-settled Pennsylvania law makes clear “an appellate 

court is limited to considering only the materials in the certified record when 

resolving an issue.” Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super. 

2006) (en banc), appeal denied, 591 Pa. 663, 916 A.2d 632 (2007). Where 

the appellant has not made the transcript of the proceedings at issue a part 

of the certified record, we have said: 
J-S29039-12

- 24 - 

With regard to missing transcripts, the Rules of Appellate 

Procedure require an appellant to order and pay for any 

transcript necessary to permit resolution of the issues 

raised on appeal. Pa.R.A.P.1911(a). ... When the 

appellant...fails to conform to the requirements of Rule

1911, any claims that cannot be resolved in the absence of 

the necessary transcript or transcripts must be deemed 

waived for the purpose of appellate review. 

Id. at 7. 

Of course, if a party is indigent, and is entitled to 

taxpayerふprovided transcripts or portions of the record, he 

will not be assessed costs. But, that does not absolve the

appellant and his lawyer of his obligation to identify and 

order that which he deems necessary to prosecute his 

appeal. The plain terms of the Rules contemplate that the 

parties, who are in the best position to know what they 

actually need for appeal, are responsible to take 

affirmative actions to secure transcripts and other parts of 

the record. ... [Appellant] cannot fault the trial court for 

his own failures. Instead, it is only when an appellant can 

show that a request was made and erroneously denied, 

which is not the case herein, that such a claim would have 

merit. ... And that sort of claim ripens, and should be 

pursued upon, the very appeal that supposedly was 

impeded by a missing portion of the record.... 

Commonwealth v. Lesko, 609 Pa. 128, 237-38, 15 A.3d 345, 410 (2011). 

If the defendant is appealing the denial of a suppression motion and fails to 

have the suppression hearing transcript made part of the appellate record, 

we can take such action as we deem appropriate, including dismissal of the 

issue. Commonwealth v. Dennis, 618 A.2d 972 (Pa.Super. 1992), appeal 

denied, 535 Pa. 654, 634 A.2d 218 (1993). 

Instantly, Appellant filed a notice of appeal on October 5, 2011, 

purporting to challenge the “Order of Court entered on the 6th day of 
J-S29039-12

- 25 - 

September, 2011, denying his Post-Trial/Post-Sentencing Motion as well as 

the Sentence pronounced on July 28, 2011, and the denial of his Motion for 

Extraordinary Relief and the entry of the verdict on the 18th of May, 2011, 

and the denial of his Pre-Trial Motion.” (See Notice of Appeal, filed 

10/5/11.) In the same document, Appellant requested only “the Transcript 

of the Trial held in the above captioned case which occurred on May 18, 

2011....” (See id.) Consistent with this request, the trial transcript is the 

only transcript in the certified record. Thus, Appellant’s argument 

concerning suppression error based on the legality of the stop is arguably 

waived. 

Nevertheless, the trial court issued contemporaneous findings, based 

on the motion to suppress and the hearing, in relevant part as follows: 

The defendant claims the police lacked reasonable 

suspicion to stop the defendant’s vehicle and therefore the 

stop and subsequent investigative detention of the 

defendant was improper and all evidence derived 

therefrom should be suppressed. The critical piece of 

evidence admitted in this matter is a video tape taken 

from the dashboard of the police vehicle which depicts the 

observations made by the police officer prior to the initial 

stop. The applicable period of time relevant to these 

proceedings occurs on the video disc between one minute 

and 17 seconds and four minutes and 56 seconds 

representing the period of time the arresting officer was 

behind the defendant in close proximity to observe the 

defendant driving prior to the point where the arresting 

officer actually activated his emergency lights to pull the 

defendant over. Between the times of one minute 17

seconds and four minutes 56 seconds, a time comprised of 

approximately 33⁄4 minutes, the defendant crossed over the 

centerline with the driver’s side vehicle tire on the yellow 
J-S29039-12

- 26 - 

line at least 12 times and crossed over the fog line with 

the passenger tires at least twice. 

The road in question is a two lane road with double yellow 

centerline and white fog line. The road is paved but

appears to have been repaired on multiple occasions and,

as a result, appears to be only in fair condition. In 

addition, the road has several moderate curves to the left 

and right. Some of the defendant’s deviations out of his 

lane of traffic occur on these curves. 

The question then becomes whether or not approximately

18 moderate lane violations within a period of 33⁄4 minutes 

constitutes a reasonable basis for a police officer to pull 

over the defendant. On review of the video tape, this 

[c]ourt concludes that the defendant’s operation of the

motor vehicle that evening clearly justifies the officer’s 

reaction in pulling over the defendant. Certainly, the 

driver’s actions were not isolated events of crossing the 

centerline or fog line not can the multiple lane deviations 

simply be blamed upon the condition of the road. Based 

upon the observations of the police officer, this [c]ourt 

concludes that the officer had a reasonable suspicion to

stop the vehicle and therefore the evidence obtained as a 

result of the stop should not be suppressed. 

(Order Denying Appellant’s Suppression Motion, filed January 4, 2011, at 1-

2). Appellant does not dispute these facts; he objects only to the conclusion 

drawn from the facts. The court observed that Trooper Ives followed 

Appellant’s vehicle for approximately four minutes before initiating a traffic 

stop. During that time, Trooper Ives watched Appellant cross the centerline 

four times, drive on the centerline twelve times, and cross the fog line twice. 

The police vehicle contained a video camera that recorded the entirety of 

Trooper Ives’ observations, and the trial court reviewed that video before 

denying Appellant’s motion to suppress. We accept the court’s conclusion. 
J-S29039-12

- 27 - 

This Court has consistently rejected challenges to traffic stops in cases 

where police observed a driver operate his vehicle in an erratic manner by 

veering over the center and fog lines. See Fulton, supra at 1243 (holding 

reasonable suspicion of violation of Motor Vehicle Code existed when police 

saw vehicle swerve out of lane of travel three times in 30 seconds); 

Commonwealth v. Cook, 865 A.2d 869, 874 (Pa.Super. 2004), appeal 

denied, 584 Pa. 672, 880 A.2d 1236 (2005) (concluding officer had 

reasonable suspicion for traffic stop where vehicle drifted over fog line three 

times and then jerked back into lane of travel). Appellant’s argument on 

this issue attempts to re-litigate the court’s determinations. Appellant’s 

efforts do not disprove the fact that his manner of driving gave Trooper Ives 

reasonable suspicion for the traffic stop. Consequently, we conclude the 

court correctly denied Appellant’s motion to suppress. 

Based on the foregoing, we hold Section 3802(b) of the DUI statute 

was a lesser-included offense of Section 3802(c), given the facts established 

at trial. Further, the trial court properly denied Appellant’s motion to 

suppress. Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

*JUDGE PLATT JOINS THIS OPINION. 

**JUSTICE FITZGERALD FILES A DISSENTING OPINION. 
J-S29039-12

- 28 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/26/2014