J-S16004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK CHRISTOPHER HESS

Appellant No. 1330 MDA 2014

Appeal from the Judgment of Sentence February 11, 2014

In the Court of Common Pleas of Lebanon County

Criminal Division at No: CP-38-CR-0000401-2013

BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 27, 2015

Appellant, Mark Christopher Hess, appeals from the judgment of 

sentence entered by the Lebanon County Court of Common Pleas after his 

conviction of two counts of driving under the influence (“DUI”) following a 

bench trial. He challenges the admissibility of evidence and the sufficiency 

and weight of the evidence. We affirm.

On December 30, 2012, Hess was driving on State Route 72 when he 

sped past Pennsylvania State Police (“PSP”) Trooper Kara Sadusky at a pace 

of 68 miles-per-hour in a 45 miles-per-hour zone. Trooper Sadusky 

conducted a traffic stop and while reviewing Hess’s identification documents, 

she noticed a strong odor of alcohol. She also observed that he had 

bloodshot and glassy eyes, slurred speech, and acted sluggish. She 

administered a field sobriety test. Hess failed. Trooper John Huffstutler 
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transported Hess to the State Police Jonestown Barracks, where Trooper 

Christopher O’Brien administered a chemical breath test using the 

Datamaster DMT device. The test results showed that Hess had a blood 

alcohol level (“BAC”) of .091% and .095%. He was charged with one count 

DUI – Second Offense pursuant to 75 Pa.C.S.A. § 3802(a)(2); one count DUI 

– General Impairment – Second Offense, pursuant to 75 Pa.C.S.A. § 

3802(a)(1); a speeding violation, and other driving offenses.

At Hess’s bench trial, Trooper Sadusky testified regarding the 

circumstances leading up to his arrest. Trooper Huffstutler testified that 

Hess confessed to him while at the police barracks that he had had four or 

five beers earlier that day. Trooper O’Brien testified at length regarding his 

training on the Datamaster DMT1and the administration of Hess’s breath 

test. Corporal Edward Burns, the trooper in charge of breathalyzer device 

maintenance, testified regarding the procedures he follows in calibrating the 

Datamaster DMT annually and in checking its accuracy on a monthly basis, 

stating that his maintenance regimen complied with the requirements set 

forth in 75 Pa.C.S.A. § 1547(c)(1). The trial court admitted into evidence the 

certificates showing that the calibration and accuracy tests had been 

performed as required. Hess did not object to the admission of those 

certificates. Prior to the admission of Hess’s BAC test results, his attorney 

____________________________________________

1 The court took judicial notice that the Datamaster DMT is an approved BAC 

testing device. Hess did not object. 
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lodged a general foundational objection, stating that the Commonwealth’s 

witnesses had not followed the “policies and protocol as they have a 

responsibility so to do as to codes, as to admissibility of breath testing 

results.” Notes of Testimony, Trial, 2/11/14, at 146. The court overruled 

the objection and admitted Hess’s BAC test results into evidence.

The court found Hess guilty of the DUI and speeding offenses, and 

sentenced him to a term of five days’ to six months’ incarceration. After the 

denial of his post sentence motions, he timely appealed to this Court.

Hess raises the following issues for our review.

a. Did the Commonwealth, as a matter of law, provide 

insufficient evidence to meet its burden of proof with 

regard to Count I, 75 Pa.C.S.A. § 3802(a)(2) where they 

failed to comply with 67 Pa.Code 77.24(d) and 67 Pa.Code 

§ 77.24(e) in that the Commonwealth failed to present any 

evidence concerning the manufacturer of the simulator 

solution; what independent laboratory certified the solution 

based on gas chromatographic analysis; or who the 

manufacturer of the ampoules was; or what generally 

accepted scientific methods were used to insure that the 

ampoules conformed to manufacturer specifications.[2]

____________________________________________

2 Simulator solution is placed in ampoules which are used to test the 

accuracy of a breathalyzer device. The solution is defined as: 

An aqueous standard ethanol solution which, when equilibrated 

with air in a breath simulator device, produces an air-alcohol 

mixture of a predetermined concentration that is designed to 

give a specific reading on breath test equipment and can be used 

to calibrate and verify the accuracy of Type A alcohol breath test 

equipment.

77 Pa.Code § 77.22.

(Footnote Continued Next Page)
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b. Whether the trial court’s verdict of guilt as to 75 

Pa.C.S.A. § 3802(a)(1) – DUI: General Impairment was 

against the weight of the evidence as the Trooper was 

unable to link any observations of unsafe driving to Hess 

and the Commonwealth’s evidence did not establish that 

Hess’ mental and physical faculties were impaired such 

that he could not safely operate a motor vehicle.

Appellant’s Brief at 1.

Hess first avers that the court should not have admitted his BAC test 

results into evidence because the Commonwealth made “no reference” to 

the manufacturer or certification of the simulator solution ampoules used to 

test the PSP’s breathalyzer device and, thus, “failed to comply with 67 Pa. 

Code § 77.24(d) and (e).”3 Appellant’s Brief at 20, 23. Although his 

(Footnote Continued) _______________________

3 67 Pa.Code 77.24(d) and (e) provide:

(d) Simulator solution certification. The manufacturer of 

simulator solution shall certify to the test user that its simulator

solution is of the proper concentration to produce the intended 

results when used for accuracy inspection tests or for calibrating 

breath test devices. This certification shall be based on gas 

chromatographic analysis by a laboratory independent of the 

manufacturer.

(e) Ampoule certification. The manufacturer of ampoules utilized 

in Type A breath testing devices shall certify to the user that its 

ampoules will produce the intended results when used for actual 

breath tests, accuracy inspection tests or for calibrating breath 

test devices. The certification shall be based on laboratory 

testing conducted by a laboratory independent of the 

manufacturer. The laboratory testing shall employ generally 

accepted scientific methods sufficient to insure that the 

ampoules conform to manufacturer specification.
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introductory sentence of this issue is framed in his “Questions Presented” as 

a challenge to the sufficiency of the evidence, Hess does not discuss the 

elements of the DUI offenses or any authority pertaining to review of 

sufficiency of the evidence. Rather, he argues only that the Commonwealth 

should have introduced evidence concerning the manufacturer’s certification 

of the simulator solution ampoules before the court admitted evidence of his 

BAC levels.

It is well-settled that evidence is admitted at trial at the discretion of 

the trial court. See Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 

2009). No evidentiary ruling will be reversed absent a showing that the court 

clearly abused that discretion. See id.

Hess concedes that this Court’s decision in Commonwealth v. Little, 

512 A.2d 674 (Pa. Super. 1986), a case in which the appellant raised the 

identical issue raised here, provides that “the Commonwealth does not bear 

the burden of producing the certificate for the simulator solution or 

ampoules at trial.” Appellant’s Brief at 23. He also acknowledges that there 

is a “rebuttable presumption that placing the simulator solution on the 

market, after independent testing, constitutes certification that the products 

will operate as intended.” Id. at 22 (citing Little).

Hess is correct. The Commonwealth did not have the burden to 

introduce at trial the manufacturer’s certifications for the simulator solution 

or ampoules. In fact, the Little court quite pointedly stated: “Absent some 
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suggestion that the products were in fact defective, the Commonwealth was 

under no burden to show certification of the manufacturer's product.” Id. at 

678. See also Commonwealth v. Starr, 739 A.2d 191, 197 (Pa. Super. 

1999) (observing that Little established “a rebuttal presumption that placing 

the solution or ampoules on the market, after independent testing, 

constitutes certification that the products will operate as intended.”). Our 

Supreme Court has agreed, noting that 

Such a conclusion is consistent with one of the purposes of 75 

Pa.C.S. § 1547 which is to facilitate the acquisition of chemical 

testing under scientifically accepted standards, and to permit 

their utilization in legal proceedings so that intoxicated drivers 

are removed from the roads of the Commonwealth. When 

applied to manufacturer’s certificates, the presumption of 

accuracy can be justified in light of the fact that the 

Commonwealth has no access to the records, test results, or 

laboratories used to prepare the ampoules and, in light of the 

fact that when the preparation is done according to scientifically 

accepted practices, the accuracy of the sample is virtually 

assured.

Commonwealth v. Brosnick, 607 A.2d 725, 729 (Pa. 1992).

Our review of the trial transcript indicates Hess neither questioned the 

quality of the solution or ampoules used in the Datamaster DMT, nor 

requested information regarding the manufacturer or testing of the solution. 

As noted above, the burden was on Hess to raise a defect that would 

necessitate the admission of the manufacturer’s certifications and related 

evidence. This he did not do. Accordingly, the trial court did not abuse its 

discretion in admitting the BAC test results.
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In his next issue, Hess challenges the weight of the evidence by 

asserting that Trooper Sadusky’s “opinion that [he] was incapable of safe 

driving was based on mere subjective factors that do not scientifically 

correlate to levels of impairment.” Appellant’s Brief at 26. That is the sum 

and substance of his weight argument before he concludes, “the finding of 

guilt was so contrary to the evidence presented at trial as to shock one’s 

sense of justice.” Id. Hess utterly fails to develop his weight challenge with 

proper reference to the record, citation to authority, and meaningful 

analysis. Accordingly, his weight challenge is waived. See Pa.R.A.P. 2119, 

and Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super.2014), 

appeal denied, 95 A.3d 275 (Pa. 2014) (finding issue waived because the 

appellant “cited no legal authorities nor developed any meaningful 

analysis”).

Hess also argues, within his weight claim, that the Commonwealth 

“failed to prove ... [that] he [had] consumed ethanol to such a degree that it 

substantially impaired his ability as to the essential acts of safe driving.” 

Appellant’s Brief at 24 (citing 75 Pa.C.S.A. § 3802(a)(1)). He recites the 

elements that must be proven to “sustain a conviction of the common law 

theory of alcohol-related DUI” as set forth in Commonwealth v. Kowalek, 

647 A.2d 948 (Pa. Super. 1994), before summarily concluding that the 

Commonwealth “relied entirely on speculative, non-specific, circumstantial 

evidence to support its accusation that Hess had imbibed alcohol.” 
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Appellant’s Brief at 25 and n.4. This argument is a challenge to the 

sufficiency, not the weight, of the evidence, and it is without merit.

Our standard of review of a sufficiency challenge is well-settled.

The standard we apply in reviewing the sufficiency of the 

evidence 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 fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above 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 fact-finder 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.

Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa. Super. 2014) 

(citation omitted).

The DUI statute provides, in relevant part, that “[a]n 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.A. § 3802(a)(1). As 

noted above, the crime may be proven by means of wholly circumstantial 

evidence. Valentine, 101 A.3d at 805. 
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There is no doubt that in addition to Trooper Sandusky’s testimony 

regarding Hess’s physical demeanor, other record evidence indicated that 

Hess had been driving while impaired by alcohol. That evidence included (1) 

testimony from Trooper Sandusky regarding the radar reading showing him 

driving at 23 miles per hour over the speed limit; (2) the field sobriety test 

result; (3) the BAC breathalyzer test result; and (4) Hess’s confession to 

Trooper Huffstutler that he had consumed four or five beers on the day he 

was stopped by Trooper Sandusky.

In light of our standard of review, we conclude that the evidence was 

sufficient to support the court’s conclusion that Hess had “imbibe[ed] a 

sufficient amount of alcohol such that [he was] rendered incapable of safely 

driving.” 75 Pa.C.S.A. § 3802(a)(1). Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2015