J-S18015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ARDEN C. OLDT, III,

Appellant No. 871 EDA 2014

Appeal from the Judgment of Sentence Entered October 21, 2013

In the Court of Common Pleas of Carbon County

Criminal Division at No(s): CP-13-CR-0001025-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 02, 2015

Appellant, Arden C. Oldt, III, appeals from the judgment of sentence 

of 48 hours’ to six (6) months’ imprisonment, imposed after he was 

convicted of driving under the influence of alcohol incapable of safe driving 

and reckless driving. Appellant challenges the sufficiency of the evidence to 

sustain his convictions and alleges the verdict is against the weight of the 

evidence. After careful review, we affirm. 

Appellant’s convictions stem from an incident on August 2, 2012, 

where Appellant caused a three-car accident on State Route 248 in Carbon 

County, Pennsylvania. Appellant was arrested for suspicion of drunk driving 

and was ultimately found guilty of the following charges at a non-jury trial 

held on August 9, 2013: driving under the influence of alcohol incapable of 
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safe driving,1and reckless driving.2 The court sentenced Appellant to 48 

hours’ to six (6) months’ incarceration. Following the denial of his postsentence motions, Appellant filed a notice of appeal. 

Subsequently, the court issued an order dated March 10, 2014, in 

conformance with Pa.R.A.P. 1925(b)(3), directing Appellant to:

within twenty-one (21) days from the date of this Order’s entry 

on the docket, to file of record and serve upon the undersigned, 

a Concise Statement of the Matters Complained of in the appeal 

to the Superior Court pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b). Any issue not properly included in the 

Concise Statement shall be deemed waived.

Order of Court, 3/10/14. Accordingly, the deadline for filing a concise 

statement was March 31, 2014.3 Appellant’s 1925(b) statement was not 

served on the court or docketed until April 2, 2014.4 The trial court found 

____________________________________________

1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 3736(a).

3

“When any period of time is referred to in any statute, such period in all 

cases ... shall be so computed as to exclude the first and include the last day 

of such period.” 1 Pa.C.S. §1908. Accordingly, we will exclude March 10, 

2014, the entry date of the order directing the concise statement, from our 

computation of the relevant filing deadline and begin counting from March 

11, 2014. We calculate that the twenty-first day after the entry of the trial 

court’s order was March 31, 2014, which did not fall on a Saturday or 

Sunday, or on a legal holiday.

4 Appellant did file a certificate of service dated March 30, 2014, claiming 

that the 1925(b) statement was mailed to all relevant parties by first class 

mail. Trial Court Opinion (TCO), 4/30/14, at 13. However, Appellant failed 

to provide the court with any evidence as per Rule 1925(b)(1) as verification 

of the mailing date. Furthermore, the court notes that Appellant’s cover 

letter attached to the 1925(b) statement, indicating that the original concise 

(Footnote Continued Next Page)
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that Appellant failed to timely file his concise statement of errors in 

compliance with the 1925(b) order. TCO, at 11. We agree. However, “if 

there has been an untimely filing, this Court may decide the appeal on the 

merits if the trial court had adequate opportunity to prepare an opinion 

addressing the issues being raised on appeal.” Commonwealth v. Burton, 

973 A.2d 428, 433 (Pa. Super. 2009). Here, the trial court has addressed 

the issues at length in its 1925(a) opinion. Therefore, we will overlook the 

untimeliness of Appellant’s concise statement and address the merits of the 

issues contained therein.

Appellant presents the following two questions for our review:

I. Was the admissible evidence presented sufficient to 

convict beyond a reasonable doubt for the offenses of 

reckless driving and driving under the influence of alcohol 

to such a degree that [Appellant] was rendered incapable 

of safe driving?

II. Was the verdict of the trial court that the [Appellant] was 

recklessly driving and under the influence of alcohol to 

such a degree that it rendered him incapable of safe 

driving against the weight of the evidence? 

Appellant’s Amended Brief, at 4. 

Before addressing Appellant’s sufficiency and weight of the evidence 

claims, we review the facts of the incident which led to Appellant’s 

(Footnote Continued) _______________________

statement is enclosed, is dated April 1, 2014, which conflicts with the date 

on the certificate of mailing. TCO, at 14.
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convictions, as summarized by the trial court in the following portion of its 

Rule 1925(a) opinion:

[O]n August 2, 2012, [Appellant] was driving erratically on 

State Route 248 in Carbon County, Pennsylvania. [Appellant]’s 

driving caused a three-car accident involving himself, Gary 

Dimovitz (hereinafter “Dimovitz”), and Larry Mosser (hereinafter 

“Mosser”). After investigating the accident, the officer called to 

the scene, Officer Robert Cohowicz, arrested [Appellant] for 

suspicion of drunk driving after: 1) he detected an odor of 

alcohol emanating from [Appellant]; 2) [Appellant] readily 

admitted that he drank three beers the day of the accident, 

including one beer a mere one hour before; and 3) [Appellant] 

failed a standardized field sobriety test. 

At trial, both Dimovitz and Mosser offered similar accounts 

of the accident. Dimovitz testified that on the day of the 

accident he was driving a silver BMW westbound on State Route 

248. Construction on Route 248 caused the right-hand lane of 

the highway to be closed; all traffic had to proceed in the lefthand lane. To close the right lane, a construction crew had 

tapered off cones to prevent a driver from entering the righthand lane. These cones then continued down the highway, 

partitioning the two westbound lanes. This closed right-hand 

lane caused traffic to move slowly through the construction zone. 

While proceeding through the construction zone, Dimovitz 

observed ... [Appellant] driving a black Mercedes convertible 

directly in front of him. About halfway through the construction 

zone, Dimovitz observed [Appellant] drive through the 

construction cones into the closed right-hand lane. According to 

Dimovitz, [Appellant] was able to navigate through the cones 

and proceed down the right-hand lane because, at [Appellant]’s 

point of entry into the right-hand lane, all construction workers 

and vehicles were behind him. Once in the right-hand lane, 

[Appellant] accelerated in an attempt to pass the line of cars 

slowly traveling through the construction zone in the left-hand 

lane. 

Unlike the beginning of the construction zone where the 

entrance was tapered off, the end of the construction zone was 

not tapered off with cones. Thus, as vehicles started to exit the 

construction zone they were able to merge back into the right-
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hand lane. When [Appellant] reached the end of the 

construction zone, he was forced to apply his brakes as other 

vehicles were merging into the right-hand lane and preventing ... 

[Appellant] from exiting that lane. Observing [Appellant] apply 

his brakes, Dimovitz assumed [Appellant] wanted to merge back 

into the left-hand lane to pass the line of traffic. Consequently, 

Dimovitz slowed his vehicle, allowing [Appellant] to cross back 

into the left-hand lane. Once Appellant re-entered the left-hand 

lane, he was faced with clear and open road ahead of him, but 

[Appellant] traveld slowly as if he was still in the construction 

zone. Dimovitz then observed [Appellant] stick his hand out the 

window, wave, and accelerate ahead. 

Up ahead, about one-half mile past the construction zone, 

Dimovitz noticed [Appellant’s] brake lights as ... [Appellant] 

moved back into the right-hand lane. Since [Appellant] was 

approaching the Palmerton exit on Route 248, Dimovitz assumed 

that [Appellant] was about to exit the hightway. However, his 

assumption was incorrect because after Dimovitz passed the exit 

... [he] now noticed, in his rearview mirror, that [Appellant] was 

back in the left-hand lane some distance behind him. 

As Dimovitz continued past the traffic in the right-hand 

lane, he took another quick glance into his rearview mirror and 

noticed that [Appellant] had closed the gap between them. 

Shortly thereafter, as Dimovitz passed the last car in the 

right-hand lane, [Appellant’s] vehicle struck Dimovitz’s vehicle. 

The impact caused Dimovitz to slightly lose control of his vehicle, 

but he was quickly able to regain control. Thereafter, Dimovitz 

looked into his rearview mirror and noticed that [Appellant’s] 

vehicle had collided with the median. ... Dimovitz pulled over 

onto the right-hand shoulder and called 911. 

Like Dimovitz, Mosser testified that on August 2, 2012, he 

was also traveling westbound on Route 248. While traveling 

down the highway, Mosser noticed in his rearview mirror two 

vehicles approaching him from behind.7 As these vehicles 

approached him, Mosser described [Appellant] as driving as if 

Mosser was not even on the road. Conversely, Mosser did not 

perceive the other vehicle, driven by Dimovitz, as a threat to 

him. 

7Mosser stated that despite setting his cruise control 

to sixty-two (62) miles per hour in a fifty-five (55) 
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mile per hour zone, both vehicles were rapidly 

drawing near him. 

Accordingly, Mosser, who was already in the right-hand 

lane, slowed his vehicle and moved onto the shoulder of the 

highway in an attempt to allow both vehicles to pass him; 

however, he was not able to get completely off the road due to a 

guide rail. As [Appellant] approached Mosser, his vehicle began 

to swerve. When [Appellant] attempted to pass Mosser, 

Appellant’s vehicle struck the left rear panel of Mosser’s vehicle. 

Upon collision, [Appellant’s] vehicle veered hard to the right, 

struck the guide rail which then caused [Appellant’s] vehicle to 

travel back across the two lane highway and into the median 

separating the westbound lanes from the eastbound lanes. 

Once his vehicle was at rest, Mosser approached 

[Appellant] to inquire into whether or not he was injured. 

[Appellant] stated that he was fine; he then apologized for 

causing the accident. 

Responding to Dimovitz’s 911 phone call, Officer Cohowicz, 

of the Palmerton Borough Police Department arrived at the 

accident scene. Upon arrival, Officer Cohowicz observed that 

just past Mosser’s vehicle were skid marks on the road leading 

up to [Appellant]’s vehicle that was resting against the median. 

TCO, at 1-6. (citations and some footnotes omitted). 

Appellant first argues that the evidence presented at trial was 

insufficient to sustain his convictions. To begin, we note our standard of 

review: 

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyong a reasonable doubt. 

Morena, supra at 136.
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Commonwealth v. Koch, 39 A.3d 966, 1001 (Pa. Super. 2011). 

Specifically, Appellant challenges the sufficiency of the evidence to 

support his conviction under 75 Pa.C.S. § 3802(a)(1), which states: “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.” In order to 

sustain a conviction under subsection 3802(a)(1), “the Commonwealth must 

prove: (1) that [Appellant] was operating a motor vehicle, (2) after 

imbibing a sufficient amount of alcohol such that the individual is rendered 

incapable of safely driving.” Commonwealth v. Kerry, 906 A.2d 1237, 

1241 (Pa. Super. 2006). Appellant does not contest that he was driving the 

vehicle that caused the accident.5 However, Appellant contends that the 

Commonwealth failed to establish that his ingestion of alcohol rendered him 

incapable of safely driving. Appellant’s Amended Brief, at 12. To the 

contrary, Appellant asserts that the accident was not directly attributable to 

any alcohol consumption on his part. Id. 

In Kerry, we held:

____________________________________________

5

“In response to Officer Cohowicz’s questions about the accident, Appellant 

stated that he was the driver of the black Mercedes convertible.” TCO, at 7. 

Appellant also apologized to Mosser for causing the accident immediately 

following the incident. TCO, at 6. 
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[t]o establish that one is incapable of safe driving ... the 

Commonwealth must prove that alcohol has substantially 

impaired the normal mental and physical faculties required to 

operate the vehicle safely; “substantial impairment” means a 

diminution or enfeeblement in the ability to exercise judgment, 

to deliberate or to react prudently to changing circumstances 

and conditions.

Id. at 1241 (quoting Commonwealth v. Gruff, 822 A.2d 773, 781 (Pa. 

Super. 2003)). “[The] meaning [of substantial impairment] is not limited to 

some extreme condition of disability.” Id. (quoting Commonwealth v. 

Griscavage, 517 A.2d 1256, 1258 (Pa. 1986)). In Commonwealth v. 

Segida, 985 A.2d 871 (Pa. 2009), our Supreme Court determined:

[t]he 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.

Id. at 879. The Court further declared, “[t]he 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.” Id. 

Here, Appellant admitted to consuming three twelve-ounce cans of 

beer prior to the incident, with the last beer being consumed a mere hour 

before the accident.6 TCO, at 8. Officer Cohowicz testified that Appellant’s 

____________________________________________

6 The trial court found Appellant’s testimony regarding his consumption of 

alcohol to be contradictory, as he testified that he consumed the three beers 

over a four hour period of time; however, Michelle Everett, the female 

(Footnote Continued Next Page)
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eyes were glossy and bloodshot and that he detected an odor of alcohol 

emanating from Appellant. TCO, at 7. Based on Appellant’s admission 

regarding the consumption of alcohol, Officer Cohowicz asked Appellant to 

submit to a standardized field sobriety test. Appellant agreed to the test. 

However, during the second phase of a three-phase test, “Officer Cohowicz 

stopped Appellant due to his lack of coordination as the Officer had to catch 

[Appellant] in order to prevent him from falling to the ground.” TCO, at 8. 

Appellant’s physical appearance and inability to pass the field sobriety test, 

combined with the testimony of Dimovitz and Mosser regarding Appellant’s 

erratic driving, not to mention the fact that Appellant clearly demonstrated a 

diminution in his ability to exercise judgment when he ignored the cones and 

drove in the prohibited right-hand lane of a construction zone, all support 

the trial court’s finding that Appellant was driving under the influence of 

alcohol to such a degree that it rendered him incapable of safe driving. 

Appellant also challenges the sufficiency of the evidence to support his 

conviction of reckless driving under 75 Pa.C.S. § 3736, which provides that 

“[a]ny person who drives any vehicle in willful or wanton disregard for the 

safety of persons or property is guilty of reckless driving.” Thus, to sustain a 

conviction of reckless driving, the Commonwealth must prove, “two 

(Footnote Continued) _______________________

passenger in Appellant’s car who had accompanied him to the bar on the day 

of the incident, testified that they did not arrive at the bar until after three 

o’clock in the afternoon and the accident occurred sometime before five 

o’clock. TCO, at 25.
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elements: an actus reus – driving a vehicle; and a mens rea – “in willful or 

wanton disregard for the safety of persons or property.” Commonwealth 

v. Bullick, 830 A.2d 998, 1001 (Pa. Super. 2003). Appellant argues that his 

ingestion of alcohol is not per se recklessness and that the Commonwealth 

failed to establish the mens rea required for this offense. Appellant’s 

Amended Brief, at 15-16. 

We have held that “driving under the influence of intoxicating 

substances does not create legal recklessness per se but must be 

accompanied with other tangible indicia of unsafe driving to a degree that 

creates a substantial risk of injury which is consciously disregarded.” 

Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super. 

1998). After analyzing the history of the offense of reckless driving in 

Bullick, we concluded that:

the mens rea necessary to support the offense of reckless 

driving is a requirement that Appellant drove in such a manner 

that there existed a substantial risk that injury would result from 

his driving, i.e., a high probability that a motor vehicle accident 

would result from driving in that manner, that he was aware of 

that risk and yet continued to drive in such a manner, in essence 

callously disregarding the risk he was creating by his own 

reckless driving.

Bullick, 830 A.2d at 1003. 

At the non-jury trial, the Commonwealth presented eyewitness 

testimony from Dimovitz and Mosser, who observed Appellant disregard the 

construction cones and travel in the prohibited right-hand lane. TCO, at 27-

28. “Once in the prohibited right-hand lane, Dimovitz saw [Appellant] travel 
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at an accelerated rate of speed in an attempt to pass the line of traffic 

traveling in the proper left-hand lane, despite this area being an active 

construction work zone.” Id. at 28. (emphasis added). Appellant ultimately 

lost control of his vehicle and struck both Dimovitz’s and Mosser’s vehicles 

before colliding with the guide rail. Id. Appellant should have known that a 

high probability of causing an accident existed as a result of driving in such a 

manner.

These facts are analogous to the facts in Commonwealth v. Jeter, 

937 A.2d 466 (Pa. Super. 2007), where we upheld a reckless driving 

conviction based on the following tangible indicia of unsafe driving: 1) the 

defendant was traveling on the Pennsylvania turnpike, presumably at an 

increased speed; 2) an eyewitness observed the defendant weaving in and 

out of the roadway for several miles before losing control and crashing into 

the center barrier; 3) the defendant’s blood alcohol level was 0.21 within 

two hours of his operation of the vehicle; and 4) the officer on the scene 

found a half-empty bottle of liquor on the front passenger-side floor of the 

defendant’s vehicle. While there was no valid blood alcohol test results in 

the case presently before this Court, Officer Cohowicz concluded based on 

his knowledge, experience, training, and his observations of Appellant, that 

Appellant had been driving under the influence of alcohol. TCO, at 28-29. 

Furthermore, Appellant admitted to consuming alcohol a mere hour before 

the accident. TCO, at 8. Based on the evidence presented, the trial court 

was reasonable in its finding of reckless driving. 
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Appellant next challenges the weight of the evidence to support his 

convictions. 

A claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the trial 

court’s discretion; it does not answer for itself whether the 

verdict was against the weight of the evidence. It is well settled 

that the jury is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses, and a new trial 

based on a weight of the evidence claim is only warranted where 

the jury’s verdict is so contrary to the evidence that it shocks 

one’s sense of justice. In determining whether this standard has 

been met, appellate review is limited to whether the trial judge’s 

discretion was properly exercised, and relief will only be granted 

where the facts and inferences of record disclose a palpable 

abuse of discretion. 

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations 

and internal quotation marks omitted). 

Appellant bases his weight of the evidence claim on his assertion that 

the trial court “gave short shrift” to the testimony of Michelle Everett. 

Appellant’s Amended Brief, at 17. However, the trial court considered Ms. 

Everett’s testimony presented at trial and found her testimony to be not 

credible. TCO, at 30. “[O]n issues of credibility and weight of the evidence, 

an appellate court defers to the findings of the trial judge, who has had the 

opportunity to observe the proceedings and demeanor of the witnesses.” 

Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002). 

The trial court, as fact finder, concluded that the elements of driving under 

the influence of alcohol incapable of safe driving and reckless driving were 
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proven beyond a reasonable doubt. We ascertain no abuse of discretion in 

the trial court’s denial of Appellant’s challenge to the weight of the evidence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2015