J-S07024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JASON P. KEMFORT,

Appellant No. 975 MDA 2014

Appeal from the Judgment of Sentence of May 16, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001442-2013

BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 13, 2015

Appellant, Jason P. Kemfort, appeals from the judgment of sentence 

entered on May 16, 2014, following his bench trial convictions of two counts 

of driving under the influence of alcohol and one count of obedience to 

traffic-control devices.1 Upon review, we affirm.

The trial court set forth the facts of this case as follows:

On January 19, 2013, at approximately 9:53 p.m., 

Officer Mark Oxenford was on duty in a marked patrol 

vehicle and observed a 2002 white Ford Taurus make a left 

turn on South 3rd Avenue by Penn Avenue. Officer Oxenford 

testified that a posted sign prohibits a left hand turn at that 

inter[sec]tion. Based on that observation, Officer Oxenford 

initiated a vehicle stop. [Appellant] pulled over and struck 

the curb during this traffic stop. The front passenger side 

tire went onto the curb. 

____________________________________________

1

 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), and 3111(a), respectively.
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Upon making contact with [Appellant], Officer Oxenford 

detected a slight odor of an alcoholic beverage coming from 

the vehicle. The [o]fficer also noticed that [Appellant’s] 

eyes were blood shot. [Appellant] admitted that he was 

coming from a bar on 3rd and Spruce Streets and at the bar 

he consumed 4 to 5 Miller Light beers. 

Officer Oxenford asked [Appellant] to step out of the 

vehicle to perform [standardized field sobriety tests 

(“SFST”)]. [Appellant] had trouble getting out of the 

vehicle because his left arm was wrapped around his 

seatbelt. Officer Oxenford testified that he was certified to 

administer the SFST[] on the date in question. He further 

testified that [Appellant] failed all SFST[] given to him 

(Walk & Turn, The One Leg Stand, and the [Portable 

Breathalyzer Test] was positive for alcohol). At the 

conclusion of said SFST[], [Appellant] was placed under 

arrest for suspicion of Driving Under the Influence (“DUI”). 

[Appellant] was transported to the DUI Center for a sample 

of his blood to be withdrawn. The consented results 

indicated that [Appellant’s] [blood alcohol content (“BAC”)] 

was 0.103.

Trial Court Opinion, 8/26/20014, at 2. 

The matter proceeded as follows:

On January 20, 2013, a criminal complaint was filed 

against [Appellant] charging him [with the aforementioned 

crimes]. On May 16, 2014, a bench trial was held on the 

matter. On the same date, the [trial] court found 

[Appellant] guilty on all three (3) counts and [Appellant] 

was sentenced. On June 6, 2014, [Appellant] filed a notice 

of appeal with [this Court]. On June 12, 2014, [the trial] 

court ordered [Appellant] to file a concise statement of 

[errors] complained of on appeal pursuant to Pa.R.A.P. 

1925(b). [Appellant] filed a concise statement on June 27, 

2014. [The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on August 26, 2014.]
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Id. at 1 (superfluous capitalization omitted).

On appeal, Appellant presents the following issues2for our review:

A. Whether the Commonwealth failed to establish probable 

cause for [Appellant’s] arrest for a violation of 75 Pa.C.S. 

§ 3802(a)(2)?

B. Whether the evidence introduced at trial by the 

Commonwealth was insufficient to support a conviction 

for the following reasons:

1. The testimony of the arresting officer is so uncertain 

that it is unworthy of belief, and the trial court 

abused its discretion in accepting it as credible.

2. The probata at trial failed to conform to the allegata

set forth in the criminal complaint, in that the 

complaint alleges a violation on January 20, 2013, 

where the evidence at trial establishes that the 

violation occurred on January 19, 2013, and further 

that the identity of the alleged violator was a person 

named “Morales.”

3. The arresting officer testified that his recollection was 

“unclear” of the events of the arrest a year prior.

4. The Commonwealth failed to establish an unbroken 

chain of custody of [Appellant’s] blood sample.

C. Whether the trial court erred in encouraging the 

Commonwealth to amend the criminal information to 

include a count for violation of § 3802(a)(2)?

Appellant’s Brief at 2-3.

____________________________________________

2

 We have reordered Appellant’s issues for ease of discussion.
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In the first issue for our consideration, Appellant contends that police 

lacked probable cause to arrest Appellant. Appellant’s Brief at 26-30. First, 

he asserts:

Here, there was insufficient evidence to show that 

[Appellant] appeared impaired to the extent that he was 

incapable of driving. [...H]e was stopped because he made 

a turn where turning that way was prohibited. This was a 

driving infraction and was not, in and of itself, evidence that 

his driving was impaired. The police officer pulled him over 

for this reason alone. There was no accident; he was not 

speeding or driving excessively slowly; his car was not 

drifting into the other l[a]ne, or weaving, or erratic.

Therefore, at the time of the stop, there was no evidence 

o[r] suspicion of any possible further criminality. Any 

suspicion of DUI had to come from what happened after 

[the police officer] first approached the car.

Id. at 26. Appellant also maintains that the police officer lacked probable 

cause to arrest him after the motor vehicle stop because the officer only 

smelled a “slight” odor of alcohol and Appellant agreed to take SFSTs and his 

“failures” regarding those tests “were consistent with a sober person not 

understanding the officer’s directions.” Id. at 27-29.

Appellant presented these arguments in his pre-trial omnibus motion, 

seeking suppression. In reviewing the denial of a motion to suppress, “[o]ur 

standard of review in addressing a challenge to a trial court's denial of a 

suppression motion is limited to determining whether the factual findings are 

supported by the record and whether the legal conclusions drawn from those 

facts are correct.” Commonwealth v. Garibay, 106 A.3d 136, 143 (Pa. 

Super. 2014) (citation omitted). Further, “when reviewing the denial of a 
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motion to suppress, we look at all of the evidence in the light most favorable 

to the Commonwealth and determine whether the record supports the 

suppression court's findings of fact.” Id.

“A police officer has the authority to stop a vehicle when he or she has 

reasonable suspicion that a violation of the vehicle code has taken place, for 

the purpose of obtaining necessary information to enforce the provisions of 

the code.” 75 Pa.C.S. § 6308(b). “However, if the violation is such that it 

requires no additional investigation, the officer must have probable cause to 

initiate the stop.” Commonwealth v. Brown, 64 A.3d 1101, 1105, (Pa. 

Super. 2013) (citation omitted). “Put another way, 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.” Id. (citation omitted). Here, Officer Mark Oxenford testified 

that he witnessed Appellant make a left hand turn at an intersection where 

two posted signs indicated that a left turn was prohibited. N.T., 6/28/2013, 

at 5-6. Because Officer Oxenford witnessed a motor vehicle code infraction, 

he had the requisite probable cause to initiate the traffic stop.

Moreover, this Court has previously determined:

Probable cause to arrest exists when the facts and 

circumstances within the police officer's knowledge and of 

which the officer has reasonably trustworthy information are 

sufficient in themselves to warrant a person of reasonable 

caution in the belief that an offense has been committed by 
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the person to be arrested. Probable cause justifying a 

warrantless arrest is determined by the totality of the 

circumstances.

Probable cause does not involve certainties, but rather the 

factual and practical considerations of everyday life on 

which reasonable and prudent men act. It is only the 

probability and not a prima facie showing of criminal activity 

that is a standard of probable cause. To this point on the 

quanta of evidence necessary to establish probable cause, 

the United States Supreme Court recently noted that finely 

tuned standards such as proof beyond a reasonable doubt 

or by a preponderance of the evidence, useful in formal 

trials, have no place in the probable cause decision. 

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005) 

(internal citations, quotations, and brackets omitted). 

To initiate the traffic stop in this case, Officer Oxenford activated the 

siren and emergency lights of his marked police car. Id. at 6. “When 

[Appellant] pulled over, the passenger side front tire actually went up onto 

the curb and the vehicle came back down onto the roadway.” Id. When 

Officer Oxenford approached the vehicle, Appellant was the only occupant. 

Id. at 7. Officer Oxenford detected the odor of alcohol on Appellant’s breath 

and saw that Appellant’s eyes were blood shot. Id. at 8. Appellant 

admitted that he was coming from a bar where he had consumed four to five 

beers. Id. When asked to exit the vehicle, Appellant got “wrapped up in the 

seat belt[.]” Id. at 11. Officer Oxenford testified that Appellant failed the 

SFST by staggering, swaying, and failing to follow directions. Id. at 10-14. 

Appellant acquiesced to a portable breath test that indicated the presence of 

alcohol in his bloodstream. Id. at 14. Accordingly, “[b]ased upon his 
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driving up on the curb, seeing him come out of the vehicle and detecting an 

odor of alcohol, the field tests, the combination of all that, [Officer Oxenford] 

felt [Appellant] was incapable of safely driving and placed him into custody 

for DUI.” Id. at 16. 

When the facts are viewed in totality, in the light most favorable to the 

Commonwealth as our standard requires, the trial court’s factual findings are 

supported by the record and we discern no error of law in denying 

Appellant’s request for suppression. Here, Officer Oxenford had probable 

cause to stop Appellant for a motor vehicle code violation. Thereafter, 

Officer Oxenford obtained reasonably trustworthy information, from 

firsthand observation, to warrant a belief that DUI had been committed and 

that probable cause supported Appellant’s arrest. Accordingly, this issue 

fails.

In his second issue presented, Appellant contends that the 

Commonwealth failed to prove his conviction under 75 Pa.C.S.A. 

§ 3802(a)(2) with sufficient evidence. Id. at 15-26. Appellant argues that 

the trial court should not have relied upon the testifying officer’s recollection 

of events, specifically facts not contained in either the police incident report 

or the affidavit of probable cause, because that officer “repeatedly testified 

he had difficulty recalling the events of the arrest on January 19, 2013.” Id.

at 15. Appellant maintains that he produced evidence contradicting the 

officer’s recollection of events. Id. at 18. Appellant also avers he “was 

prejudiced because the affidavit [of probable cause] not only contains the 
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wrong date of the crime, but contains allegations against another person 

[named] Morales.” Id. at 17. Moreover, Appellant claims the 

Commonwealth failed to establish evidence of an unbroken chain of custody 

regarding Appellant’s blood sample. Id. at 19. More specifically, he argues: 

“Inexplicably, the chain of custody card [] shows that the lock box 

[containing Appellant’s blood sample] was received by St. Joseph[ 

Hospital’s] employee Osiris Martinez Urquilla (“Urquilla”), the third shift 

technician at the hospital, at 4:50 AM, ten minutes prior to its delivery, 

according to Officer [Peter] Scornavacchi.” Id. at 20. He suggests that 

“[w]ith no other evidence explaining the discrepancy other than to guess 

that it was ‘highly unlikely’ that blood samples were mixed up, and no 

explanation why the discrepancy occurred, the trial court clearly abused its 

discretion in allowing the defective chain of custody into evidence and 

relying on the [blood alcohol test] to find [Appellant] guilty of §3802(a)(2).” 

Id. at 24-25. 

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 
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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 trier 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) 

(citations omitted).

Appellant challenges his conviction under 75 Pa.C.S.A. § 3802(a)(2), 

which provides:

(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.

75 Pa.C.S.A. § 3802(a)(2).

Here, there is no dispute that Appellant was driving and was the only 

occupant of the vehicle. Moreover, we will not disturb the trial court’s 

credibility determinations or reweigh the evidence. Thus, the trial court did 

not err in crediting Officer Oxenford’s version of events over Appellant’s, as 

previously outlined above. Additionally, Officer Oxenford testified that the 

name Morales, that appeared on the affidavit of probable cause, “was 

probably for another defendant[, but] [s]hould have been for [Appellant].” 

N.T., 6/28/2013, at 24. Officer Oxenford attributed the discrepancy to a 

typographical error. Id. at 52. Officer Oxenford testified that the remaining 
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information in the affidavit was based solely upon his observations of 

Appellant. Id. at 24-26, 51-52. Regarding the chain of custody claim, 

laboratory technician, Michelle Reed testified that the chain of custody card 

indicated that Appellant’s blood sample was delivered ten minutes after it 

was received. N.T., 2/26/2014, at 52-54. She testified that it was “highly 

unlikely” that the sample was someone else’s blood and attributed the time 

discrepancy to “a difference in clocks from the DUI center to the hospital.” 

Id. at 54. The trial court was permitted to accept this explanation and to 

conclude that the chain of custody had not been broken. See 

Commonwealth v. Feliciano, 67 A.3d 19, 29 (Pa. Super. 2013) (en banc) 

(Gaps in the chain of custody go to the weight of the evidence and not its 

admissibility). The blood test result showed Appellant’s BAC was .103. Id.

at 50. However, the trial court credited the defense expert’s testimony that 

there is a 5-10% variance for the findings, which brought Appellant’s BAC to 

below .10. N.T., 5/16/2014, at 60-61. Based upon all of the foregoing, 

there was sufficient evidence to support Appellant’s conviction for DUI under 

75 Pa.C.S.A. § 3802(a)(2). Appellant’s second claim fails.

In his third issue presented, Appellant claims that he was prejudiced 

when the trial court suggested that the Commonwealth move to amend the 

bill of criminal information to include a count for DUI under 75 Pa.C.S.A. 

§ 3802(a)(2). Appellant’s Brief at 30. He argues “the Commonwealth did 

not of its own accord seek to amend the information to conform to the 

evidence introduced at trial until after closing argument, when the [c]ourt 
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was issuing its ruling, and after the [c]ourt suggested that it was not going 

to find [Appellant] guilty of a section 3802(b) violation.” Id. at 34. 

On this issue, this Court has declared:

According to Pa.R.Crim.P. 564, the court may permit 

amendment of an information when there is a defect in 

form, the description of the offense(s), the description of 

any person or any property, or the date charged, provided 

the information as amended does not charge an additional 

or different offense. Moreover, upon amendment, the court 

may grant such post-ponement of trial or other relief as is 

necessary in the interests of justice. The purpose of Rule 

564 is to ensure that a defendant is fully apprised of the 

charges, and to avoid prejudice by prohibiting the last 

minute addition of alleged criminal acts of which the 

defendant is uninformed. Our courts apply the rule with an 

eye toward its underlying purposes and with a commitment 

to do justice rather than be bound by a literal or narrow 

reading of the procedural rules.

[...W]hen presented with a question concerning the 

propriety of an amendment, we consider:

whether the crimes specified in the original 

indictment or information involve the same basic 

elements and evolved out of the same factual 

situation as the crimes specified in the amended 

indictment or information. If so, then the defendant 

is deemed to have been placed on notice regarding 

his alleged criminal conduct. If, however, the 

amended provision alleges a different set of events, 

or the elements or defenses to the amended crime 

are materially different from the elements or 

defenses to the crime originally charged, such that 

the defendant would be prejudiced by the change, 

then the amended is not permitted.

Additionally,

in reviewing a grant to amend an information, th[is] 

Court will look to whether the appellant was fully 
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apprised of the factual scenario which supports the 

charges against him. Where the crimes specified in 

the original information involved the same basic 

elements and arose out of the same factual situation 

as the crime added by the amendment, the appellant 

is deemed to have been placed on notice regarding 

his alleged criminal conduct and no prejudice to 

defendant results. 

Further, the factors which the trial court must consider in 

determining whether an amendment is prejudicial are:

(1) whether the amendment changes the factual 

scenario supporting the charges; (2) whether the 

amendment adds new facts previously unknown to 

the defendant; (3) whether the entire factual 

scenario was developed during a preliminary 

hearing; (4) whether the description of the charges 

changed with the amendment; (5) whether a change 

in defense strategy was necessitated by the 

amendment; and (6) whether the timing of the 

Commonwealth's request for amendment allowed for 

ample notice and preparation.

Most importantly, we emphasize that the mere possibility 

amendment of information may result in a more severe 

penalty is not, of itself, prejudice. Moreover, this Court has 

reaffirmed this principle in the context of DUI offenses. See 

Commonwealth v. Roser, 914 A.2d 447, 454–455 (Pa. 

Super. 2006).

Commonwealth v. Mentzer, 18 A.3d 1200, 1202-1203 (Pa. Super. 2011) 

(quotations, original brackets, and most citations omitted). Finally, we note 

that, “if there is no showing of prejudice, amendment of an information to 

add an additional charge is proper even on the day of trial.” 

Commonwealth v. Picchianti, 600 A.2d 597, 599 (Pa. Super. 1991).
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Initially, we note that Appellant has waived this claim.3 Regardless, 

this claim is without merit as there was no prejudice to Appellant in allowing 

the amendment. Appellant was fully apprised of the factual scenario 

supporting the charges against him. The crimes specified in the original bill 

of criminal information involved the same basic elements and evolved out of 

the same factual situation as the crime specified by the amendment. In 

fact, the charge that was amended was a lesser-included offense of the 

crime originally charged by information.4 The amendment did not change 

the factual scenario supporting the charge or add new facts previously 

unknown to Appellant. The description of the charges did not change with 

the amendment. There was no necessity to change the defense strategy or 

reason for ample notice and additional preparation. Accordingly, we discern 

no prejudice to Appellant and, as such, the trial court did not err in

permitting amendment.

____________________________________________

3

 Appellant did not object to the amendment at trial and, in fact, stipulated 

to amending the original bill of criminal information instead of requiring the 

Commonwealth to file a proposed order to amend. See N.T., 5/16/2014, at 

58-60. Thus, Appellant waived this issue. See Commonwealth v. May, 

887 A.2d 750, 761 (Pa. 2005) (“The absence of [a] contemporaneous 

objection[] renders [a] claim[] waived.”), citing Pa.R.A.P. 302(a) (“Issues 

not raised in the lower court are waived and cannot be raised for the first 

time on appeal.”).

4

 Appellant was originally charged with general impairment – high rate of 

alcohol under 75 Pa.C.S.A. § 3802(b) which requires a showing that the 

defendant’s BAC was between 0.10% and 0.16%. However, the evidence at 

trial established that Appellant’s BAC was below 0.10% which supports a 

conviction for general impairment under 75 Pa.C.S.A. § 3802(a)(2).
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015