J-S10016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AARON LAWHORN

Appellant No. 902 EDA 2014

Appeal from the Judgment of Sentence March 5, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0006163-2013

BEFORE: GANTMAN, P.J., STABILE, and PLATT,*JJ.

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

Appellant, Aaron Lawhorn, appeals from the trial court’s March 5, 2014 

judgment of sentence imposing four days to six months of incarceration for 

driving under the influence of alcohol (“DUI”) in violation of 75 Pa.C.S.A. 

§ 3802(b).1 Appellant argues the Commonwealth failed to produce sufficient 

evidence to prove his blood alcohol content was at least .10%. We affirm. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

That section provides: 

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 

(Footnote Continued Next Page)
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In the early morning hours of December 8, 2012, police observed 

Appellant’s car twice swerve across a double yellow line. The second time, 

Appellant overcorrected and nearly collided into several parked vehicles. 

Police stopped Appellant after he failed to stop at a stop sign. Officer Russell 

Valenza (“Officer Valenza”) of the Philadelphia Police Department observed 

Appellant’s “watery and bloodshot eyes” and ordered Appellant out of his 

vehicle. Trial Court Opinion, 11/17/14, at 2. Appellant leaned on his car to 

maintain balance. Based on these observations, Officer Valenza arrested 

Appellant for DUI. Officer Mark Ibe (“Officer Ibe”) of the Philadelphia Police 

Department administered two breath tests to Appellant. The lower of the 

two results revealed Appellant’s BAC to be .102%. 

The trial court conducted a bench trial on March 5, 2014, at the 

conclusion of which it found Appellant guilty of DUI (general impairment and 

high rate of alcohol2). Immediately after the trial the court concluded the 

former conviction merged into the latter, and imposed sentence as set forth 

(Footnote Continued) _______________________

or been in actual physical control of the movement of the 

vehicle.

75 Pa.C.S.A. § 3802(b). 

2

 75 Pa.C.S.A. §§ 3802(a)(1) and (b), respectively. 
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above. Appellant filed this timely appeal challenging the sufficiency of the 

evidence revealing his BAC.3 

We begin by setting forth the applicable standard of review: 

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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014). 

Appellant frames the issue as follows: 

The evidence was insufficient to convict [Appellant] of 75 

Pa.C.S.A. § 3802(b) because, taking into consideration the 

breathalyzer machine’s margin of error for the blood alcohol 

concentration reading, the Commonwealth did not prove that 

[Appellant] had an alcohol concentration in his blood that was at 

least .10% but less than .16%. 

____________________________________________

3

 In his Pa.R.A.P. 1925(b) concise statement, Appellant challenged his 

convictions under both subsections. In his brief, he does not challenge his 

conviction under § 3802(a)(1). 
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Appellant’s Brief at 12. 

At trial, Appellant offered an expert witness who opined that the 

breathalyzer test Officer Ibe administered has an inherent margin of error of 

.004%. Appellant’s expert based his opinion on a United States Department 

of Transportation Document dated September 17, 1993. N.T. Trial, 3/5/14, 

at 35. Since the breathalyzer showed Appellant’s BAC to be .102%, 

Appellant asserts his BAC could have been as low as .098% and still be 

within the margin of error. Since the margin of error includes BAC values 

too low to sustain a conviction under § 3802(b), Appellant argues the 

evidence is insufficient to support his conviction. 

In Commonwealth v. Sibley, 972 A.2d 1218 (Pa. Super. 2009), this 

Court rejected the precise argument Appellant offers here, reasoning that it 

implicates the weight of the evidence. In Sibley, the trial court, sitting as 

factfinder, found the defendant guilty under § 3802(c)4 because a blood test 

placed his BAC at .162%. Id. at 1219. The defendant argued the 

“coefficient of variation” for the blood test was plus or minus 3%, which 

meant the defendant’s BAC could have been as low as .157% or as high as 

.167%. Id. Since the low end of that range would result in a violation of 

§ 3802(b), a lesser offense, Appellant challenged the sufficiency of the 

____________________________________________

4

 A violation of § 3802(c) occurs where the defendant’s BAC is .16% or 

higher. See 75 Pa.C.S.A. § 3802(c). 
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evidence in support of his conviction under subsection (c). This Court 

denied relief: 

As factfinder in this case, the court was presented with 

specific evidence that [defendant’s] BAC test result was 0.162%. 

It was then for the court to weigh the evidence of the 0.162% 

BAC test result in light of the possibility that the actual BAC 

could have been anywhere within the variation range. Thus, the 

coefficient of variation in this case implicates the weight, not the 

sufficiency of the evidence. 

Id. at 1219 (citation omitted); see also Commonwealth v. Mongiovi, 521 

A.2d 429, 431 (Pa. Super. 1987) (“It should be pointed out that the term 

‘variance’ could imply a test result which would be to [defendant’s] 

detriment as well as his advantage. Because we lack a legal presumption as 

to how a variance should be considered, its weight must be left with the trier 

of fact.”).5 

More recently, in Commonwealth v. Landis, 89 A.3d 694 (Pa. Super. 

2014), this Court awarded a new trial where the defendant was convicted 

____________________________________________

5

 Under a prior version of the DUI statute, this Court found the evidence 

insufficient where a defense expert testified the BAC test in question had a 

margin of error of 10% and that the defendant’s BAC likely rose after he 

stopped driving and before he took the test. Commonwealth v. Lippert, 

887 A.2d 1277, 1278-79 (Pa. Super. 2005). The Commonwealth conceded 

that it was impossible to ascertain whether the defendant’s BAC rose or fell 

after he stopped driving. Id. at 1279. The Commonwealth also conceded 

the test had a margin of error of at least 5%. Id. We believe Lippert is 

distinguishable. Lippert was decided under an earlier version of the statute 

pursuant to which the Commonwealth had to prove the defendant’s BAC at 

the time he was driving. See 75 Pa.C.S.A. § 3731(a)(4), repealed by Act of 

Sept. 30, 2003, P.L. 120, No. 24, § 14, effective Feb. 1, 2004. As we 

describe in the main text, Sibley is directly on point and controlling here. 
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under § 3802(c) for having a BAC of .164% based on a test with an inherent 

10% margin of error. Id. at 696. The defendant’s expert witness testified 

that the test performed on the defendant’s blood was not the most reliable 

test available, and, based on the margin of error, the defendant’s BAC could 

have been anywhere from .147% to .180%. Id. at 698. We noted the 

defendant’s “evidence that a reading of .164% merely reflected a range of 

equally possible results from between .147% and .180% was not clarified or 

challenged by the Commonwealth.” Id. at 701. Since the verdict was based 

on pure speculation, we awarded a new trial. Id. 

Here, Appellant admittedly has not preserved a challenge to the weight 

of the evidence. Despite the results in Sibley and Landis, Appellant has 

chosen to challenge the sufficiency of the evidence and portray Sibley as 

distinguishable or limited to its facts. Appellant argues the trial court in 

Sibley seemingly declined to credit a portion of the defense expert’s 

testimony. Appellant’s Brief at 22. In contrast, Appellant believes the trial 

court credited the entirety of the defense expert’s testimony in the instant 

case. Id. Appellant also argues his expert’s testimony establishes 

conclusively that the trial court based its guilty verdict on pure speculation. 

Id. at 22-23. That is, Appellant believes the evidence here establishes a 

much greater possibility than the evidence in Sibley that Appellant’s BAC 

was below the legal limit. 
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None of these arguments provides a basis for overlooking Sibley’s

holding that margin of error evidence is relevant to the weight to be 

assigned to the result of a blood alcohol test. Under the binding authority of 

Sibley, Appellant’s failure to challenge the weight of the evidence is fatal to 

the argument he raises on appeal.6 

In addition to Appellant’s failure to recognize the binding legal 

authority of Sibley, Appellant’s arguments are factually flawed. The record 

does not support Appellant’s assertion that the trial court credited the 

entirety of his expert’s testimony. The parties stipulated that Officer Ibe, if 

he testified, would state that he tested the machine he used immediately 

prior to his shift and found the machine to be working accurately with an 

error rate of 0%. N.T Trial, 3/5/14, at 23-25. The parties also stipulated 

that the machine Officer Ibe used had been calibrated five days prior to 

Appellant’s arrest. Id. at 25-26. In three separate rounds of testing 

____________________________________________

6

 Appellant argues Sibley is flawed because it forces appellants to challenge 

weight of the evidence and seek a new trial even though an acquittal is the 

only appropriate remedy. Appellant posits that Sibley and Landis create a 

no-win regime whereby an defendant could obtain a new trial based on a 

test’s margin of error but have no chance to prevail at the new trial because 

the test result, regardless of margin of error, is sufficient for a conviction. 

Appellant argues a sufficiency of the evidence challenge is the appropriate 

means of obtaining relief because, if successful, it results in acquittal. 

Sibley and Landis are binding on this panel. It is our duty to apply them 

faithfully and we have done so in this case. The merit of Appellant’s 

argument, if any, must be determined either by an en banc panel of this 

Court or the Pennsylvania Supreme Court. Given the record before us, we 

are very doubtful this is an appropriate test case. 
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conducted during calibration, with five tests conducted in each round, the 

machine consistently demonstrated a margin of error of no more than 

.001%. Id. at 25-28. 

The Commonwealth’s expert testified, to a reasonable degree of 

scientific certainty, that the machine Officer Ibe used produced an accurate 

BAC reading, and the trial court relied on that testimony in support of its 

verdict. Id. at 49; Trial Court Opinion, 7/17/14, at 3. In other words, the 

defense expert offered his opinion on the tolerable margin of error for 

analytical breath tests in general.7 The Commonwealth produced evidence 

detailing the accuracy of the specific machine Officer Ibe used to test 

Appellant’s breath, based on a calibration of that machine five days earlier 

and testing immediately prior to Officer Ibe’s shift on the day of Appellant’s 

arrest.8 The trial court was entitled to rely on stipulated evidence and the 

Commonwealth’s expert testimony regarding the accuracy of Officer Ibe’s 

____________________________________________

7

 Appellant’s expert testified as follows: 

To make it short, the test [sic] that were conducted on 

analytical breath tests, the instrument, not just the one that 

was used in this case, but all instruments, have been 

certified since ’93 allow for a standard deviation error of .004, 

plus or minus .004. 

N.T. Trial, 3/5/14, at 35 (emphasis added). 

8

 Appellant concedes the machine was properly calibrated and determined 

to be accurate in accordance with all applicable regulations. Appellant’s Brief 

at 15-16, n.7. See 67 Pa. Code §§ 77.24 – 77.26. 
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machine, and it did so. The record therefore contains evidence that 

Appellant’s BAC was .102%, as determined by an accurate breathalyzer 

machine. We are required to defer to the trial court’s credibility 

determinations and we must view the evidence in a light most favorable to 

the Commonwealth as verdict winner. Plainly, this is not a case where the 

evidence is “so weak and inconclusive that as a matter of law no probability 

of fact may be drawn from the combined circumstances[.]” Cahill, 95 A.3d 

at 300. For purposes of our review of a sufficiency of the evidence 

argument, that is the end of the matter. 

Appellant’s argument invites this Court to reweigh the evidence in his 

favor. Despite this, he chose not to challenge the weight of the evidence. 

Since Appellant’s argument does not merit relief, we affirm the judgment of 

sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015