J-S27005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRISTOPHER W. LEBER,

Appellant No. 1862 MDA 2015

Appeal from the Judgment of Sentence September 28, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002753-2007

BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED APRIL 21, 2016

Appellant, Christopher W. Leber, appeals from the September 28, 

2015 judgment of sentence of ten days to six months of imprisonment 

entered following his conviction at a bench trial of driving under the 

influence, general impairment. Following our careful review, we affirm.

The trial court summarized the facts of the crime as follows:

At approximately 2:00 A.M. on September 24, 20061, 

Pamela Wilson was traveling south on Pennsylvania state Route 

441 when she observed a white Ford Explorer in front of her 

being driven erratically. She followed the vehicle for 

approximately 3 to 4 miles and saw the vehicle repeatedly 

swerve “over the center line into the other lane,” then called 

911, reporting that she was following what appeared to be a 

drunk driver.2 In all she observed the vehicle swerve across the 

center line approximately 15 times before entering Columbia 

Borough. She was 2 or 3 car lengths behind [Appellant’s] 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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vehicle as it traveled down a hill into Columbia Borough when 

she saw it strike a concrete barrier, go airborne, and “land . . . 

half on the sidewalk and half on the back of a parked car that 

was there.”

1 The delay between the charge and [Appellant’s] 

bench trial was caused by [Appellant’s] failure to 

appear and being wanted on a Bench Warrant for 

more than seven years.

2

Pennsylvania State Route 441 is a two-lane road.

Officer Ryan Clingan of the Columbia Borough Police 

Department responded to the 911 call and observed the white 

Ford Explorer as it descended the hill and entered the Borough.3 

The officer saw [Appellant’s] vehicle, “coming down the hill south 

on 441” followed by the vehicle in which Pamela Wilson was a 

passenger. He recalled that he clearly saw [Appellant’s] vehicle 

“swerve . . . over the center line,” crash into a sign on a corner, 

go onto the sidewalk and then into a parked car with the “sign 

embedded into the hood of the vehicle.”

3 On the date of the accident, [Officer] Clingan was 

employed as a Patrolman in Columbia Borough.

Immediately after witnessing the accident, Officer Clingan 

called for EMS assistance and approached the driver’s side 

window of the vehicle. [Appellant] Christopher W. Leber was the 

only occupant and was found in the driver’s seat. When he 

looked into the vehicle, Officer Clingan observed an “open 

cooler” with bottles and cans of beer and “an open beer in the 

front of the car” within reach of [Appellant]. This container “was 

open as if [Appellant] was consuming it.” The cooler was upright 

and the lid was open although some beer cans and bottles had 

spilled out of the cooler. Officer Clingan testified that 

[Appellant] had slurred speech, glassy eyes, and that 

[Appellant’s] breath smelled of alcohol. He also noticed that 

[Appellant] had slow movements and was bleeding from his 

head. Officer Clingan concluded, based on his training and 

experience, that [Appellant] was most likely DUI.4 Based on this 

conclusion, Officer Clingan charged [Appellant] with DUI, general 

impairment.5
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4 Officer Clingan did not have [Appellant] perform 

the standard field sobriety tests due to [Appellant’s] 

head injury and, despite requesting a blood sample 

from Lancaster General Hospital (“LGH”) almost 

immediately after the accident, was unable to obtain

[Appellant’s] blood sample because LGH did not 

collect one.

5 75 Pa.C.S.A. § 3802(a)(1).

Trial Court Opinion, 12/1/15, at 1–3 (citations to record omitted).

Appellant was charged with one count of DUI, general impairment and 

as noted, apparently failed to appear for trial in 2006. A bench warrant 

issued, and on September 28, 2015, Appellant, who resided in Florida, 

appeared for a bench trial.1 N.T., 9/28/15, at 47. Pamela Wilson and 

Officer Clingan testified, as did Appellant. The trial court found Appellant 

guilty of DUI, general impairment and sentenced him to ten days to six 

months of incarceration, imposed a $1,000 fine, and suspended his driver’s 

license for twenty-two months. Id. Appellant filed a timely notice of appeal. 

Both the trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant raises the following single issue on appeal:

WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICIENT TO 

SUSTAIN A CONVICTION FOR DRIVING UNDER THE INFLUENCE 

UNDER 75 PA.C.S.A. 3802(a)(1)?

Appellant’s Brief at 4.

____________________________________________

1

 The record does not reveal the actions leading to Appellant’s custody and 

incarceration prior to the instant trial.
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In reviewing a sufficiency challenge, “we must decide whether the 

evidence admitted at trial, and all reasonable inferences drawn therefrom in 

favor of the Commonwealth, as verdict winner,” are sufficient to support all 

elements of the offense. Commonwealth v. Hitcho, 123 A.3d 731, 746 

(Pa. 2015). The trial court, sitting as the finder of fact, is free to believe 

some, all, or none of the evidence. Commonwealth v. Cousar, 928 A.2d 

1025 (Pa. 2007); Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. 

Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015). “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. Roberts, ___ A.3d ___, ___, 2016 PA 

Super 22, at *5 (Pa. Super. filed February 2, 2016) (quoting 

Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super. 2010)). As 

an appellate court, we may not re-weigh the evidence and substitute our 

judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d 

994 (Pa. Super. 2015).

Appellant was convicted of DUI pursuant to 75 Pa.C.S. § 3802(a), 

which provides 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.
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75 Pa.C.S. § 3802(a)(1). In order to be found guilty of DUI—general 

impairment, “the Commonwealth [must] 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, 985 A.2d 871, 879 (Pa. 2009). Unlike the 

other subsections of DUI, general impairment does not require proof that the 

accused had a blood alcohol level in excess of the legal limit. Id. While a 

blood alcohol level may be relevant, it is not necessary. Id. What is 

necessary, however, is evidence that the accused was unable to drive safely 

due to the consumption of alcohol. Id.

Our Supreme Court described the types of evidence the 

Commonwealth may use to prove DUI, general impairment as follows:

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. . . . The weight to be assigned these various types of 

evidence presents a question for the factfinder, who may rely on 

his or her experience, commonsense, 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 879.
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Appellant asserts that the Commonwealth failed to produce evidence 

of his blood-alcohol level or evidence of performance of field-sobriety tests. 

Appellant’s Brief at 9. Segida teaches that such evidence is not required. 

Segida, 985 A.2d at 879; see also Commonwealth v. Griffith, 32 A.3d 

1231, 1238 (Pa. 2011) (“Although the Commonwealth may proffer evidence 

of alcohol level . . . to establish that the defendant had imbibed sufficient 

alcohol to be rendered incapable of driving safely, it is not required to do so 

under subsection 3802(a)(1) . . . . This is well-established, long-standing 

law in Pennsylvania.”).

Appellant suggests that his glassy eyes, slow movements, and odor of 

alcohol from his breath could have been attributed to the fact that he was 

“bleeding from his head” and the spilling of beverages in his car. Appellant’s 

Brief at 9. Appellant’s contention, however, ignores our standard of review, 

which requires us to view the evidence in the light most favorable to the 

Commonwealth, as verdict winner. Hitcho, 123 A.3d at 746. At trial, 

witness Pamela Wilson testified that Appellant was driving erratically by 

crossing into oncoming traffic fifteen times. N.T., 9/28/15, at 6. In fact, the 

witness, who followed Appellant for “probably a half hour,” testified that 

Appellant’s vehicle “was over the whole way on the other side of the road. . . 

.[H]e was actually on the other side of the road. So if there was a vehicle 

coming towards him, they would have hit head-on.” Id. at 5.
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Officer Clingan, who responded to Ms. Wilson’s 911 call, also saw 

Appellant drive over the center line, hit a sign, swerve onto a sidewalk, and 

crash into a parked car. N.T., 9/28/15, at 11–12. The officer observed that 

Appellant had bloodshot, glassy eyes, slurred speech, and slow movements. 

Id. at 15. Officer Clingan observed an open, upright cooler in the back of 

the vehicle and an open can of beer in the front. Id. The officer testified 

that he “immediately smell[ed] the odor of alcohol” as he spoke to 

Appellant. Id.

The trial court found Appellant’s explanation at trial “incredible” and 

that it “defies belief.” Trial Court Opinion, 12/1/15, at 7. Moreover, it found 

no merit to Appellant’s claim that “containers of alcohol in the front of his 

vehicle were opened only by the impact of the crash.” Id. at 8.

Upon review of the parties’ briefs, the certified record, and our 

standard of review, we conclude that the trial court properly determined that 

sufficient evidence was produced at trial to support a finding of guilt of DUI, 

general impairment.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2016