J-S52006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

RONALD LEE WELLER,

Appellant No. 1977 MDA 2017

Appeal from the Judgment of Sentence Entered November 21, 2017

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0000984-2017

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 19, 2018

Appellant, Ronald Lee Weller, appeals from the judgment of sentence 

of, inter alia, 3 to 6 months’ imprisonment, imposed after he was convicted of 

driving under the influence of alcohol or controlled substance (DUI) – general 

impairment, 75 Pa.C.S. § 3802(a)(1); DUI - high rate of alcohol, 75 Pa.C.S. § 

3802(b); and three counts of DUI – controlled substances, 75 Pa.C.S. § 

3802(d)(1)(i), (2), (3). We affirm. 

The trial court provided the following factual summary of this case:

On the evening of October 8, 2016, a manager of the Sheetz store 

in Shippensburg called police to report a patron[,] who appeared 

intoxicated[,] driving away. Shippensburg Police Officer Malynda 

Garcia received the report of an active DUI. She happened to be 

only 500 feet away at the time so she arrived at the Sheetz within 

minutes. As she pulled up to the intersection, the Sheetz 

employee was standing outside of the store and he pointed out 

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* Retired Senior Judge assigned to the Superior Court.
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[Appellant’s] van as the vehicle being driven by an apparently 

intoxicated person. Due to traffic, another officer initiated a traffic 

stop of [Appellant], though Officer Garcia arrived shortly 

thereafter. She observed [Appellant] to have bloodshot, glassy 

eyes, and she could smell the odor of alcohol coming from his 

person. When he exited the vehicle, [Appellant] stumbled. While 

he attempted to perform standard field sobriety tests[, he] was 

unsteady and swaying. Due to safety concerns caused by 

oncoming traffic and [Appellant’s] lack of balance, Officer Garcia 

stopped the tests. At that point, she adjudged [Appellant] to be 

[committing] DUI and placed him under arrest. [Appellant] 

consented to a legal blood draw that returned a blood alcohol 

concentration of [0].156[%] and [he] also tested positive for THC, 

the active ingredient in marijuana.

Trial Court Opinion (TCO), 2/21/2018, at 1-2. 

Following a nonjury trial, Appellant was convicted of the above-stated

offenses.1 He subsequently filed a timely notice of appeal, and timely 

complied with the trial court’s instruction to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant presents 

the following issue for our review:

Did the court err when it concluded that the evidence provided by 

the Commonwealth was sufficient to find ... Appellant guilty of the 

charges against him?

Appellant’s Brief at 5 (unnecessary emphasis and capitalization omitted). 

While Appellant purports to challenge the sufficiency of the evidence 

underlying all of his convictions, the only specific sufficiency argument 

Appellant makes is that “the Commonwealth failed to present sufficient 

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1 We note that Appellant filed a motion to suppress prior to trial, wherein he 

argued, inter alia, that the traffic stop was illegal. See Appellant’s Omnibus 

Pretrial Motion, 8/10/2017, at ¶ 7. The trial court denied this motion in all 

respects at Appellant’s nonjury trial. See N.T. Trial, 8/22/2017, at 58. 
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evidence that [he] was driving a vehicle while under the influence of alcohol 

to the degree he was ‘incapable of safe driving’” under 75 Pa.C.S. § 

3802(a)(1). See Appellant’s Brief at 10; see also id. at 9.

2

 Appellant asserts 

that he was not driving erratically, and points out that Officer Garcia admitted 

that she did not observe him violating any other provisions of the Motor 

Vehicle Code. Id. at 11 (citing N.T. at 27). 

We apply the following standard of review to sufficiency claims:

A challenge to the sufficiency of the evidence is a question of law, 

subject to plenary review. When reviewing a sufficiency of the 

evidence claim, the appellate court must review all of the evidence 

and all reasonable inferences drawn therefrom in the light most 

favorable to the Commonwealth, as the verdict winner. Evidence 

will be deemed to support the verdict when it establishes each 

element of the crime charged and the commission thereof by the 

accused, beyond a reasonable doubt. The Commonwealth need 

not preclude every possibility of innocence or establish the 

defendant’s guilt to a mathematical certainty. 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. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citation 

omitted). 

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2 Although Appellant states that the Commonwealth’s evidence was 

insufficient to prove all elements of each of his remaining convictions, see 

Appellant’s Brief at 9, 10, he does not specifically discuss which elements the 

Commonwealth failed to prove with respect to those crimes. We therefore 

deem Appellant’s sufficiency claims waived as they pertain to his other 

offenses. Commonwealth v. Quel, 27 A.3d 1033, 1042 (Pa. Super. 2011) 

(“As [the a]ppellant has failed to develop these claims properly by specifically 

discussing the elements of the crime and those which the Commonwealth 

failed to prove, [the a]ppellant has waived these claims for lack of 

development.”). 
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Subsection 3802(a)(1) provides 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. § 3802(a)(1). “Subsection 3802(a)(1) 

is an ‘at the time of driving’ offense, requiring that the Commonwealth 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.” 

Teems, 74 A.3d at 145 (original brackets and citation omitted). Further, we 

acknowledge that:

Section 3802(a)(1) ... is a general provision and provides no 

specific restraint upon the Commonwealth in the manner in which 

it may prove that an accused operated a vehicle under the 

influence of alcohol to a degree which rendered him incapable of 

safe driving.... 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 and 

the two hour time limit for measuring blood alcohol level does not 

apply. ... The 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. 

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.
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Id. (citation omitted). We further note that “[e]vidence of erratic driving is 

not a necessary precursor to a finding of guilt under the relevant statute.” 

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011). 

In the case sub judice, a Sheetz employee testified at trial that Appellant 

was “stumbling around” in the store and bumped into “a chip rack.” See N.T.

at 8-9. Believing Appellant was intoxicated, the employee called police after 

seeing Appellant leave the store and get in his car. Id. at 3-4. Appellant 

conceded at trial that he had stopped to buy gas at this Sheetz on the evening 

in question, went inside to pay, and then got in his vehicle and left. Id. at 

43, 45. After leaving Sheetz, Appellant explained he was on his way to “meet 

a lady friend” when police pulled him over. Id. at 43-44. When Officer Garcia 

made contact with Appellant, she testified that she could smell alcohol on him, 

and his eyes “were bloodshot and glassy.” See id. at 13. Officer Garcia asked 

Appellant to get out of his vehicle, and Appellant “kind of stumbled a little bit. 

... He kind of did a two-step as we got to the rear of his vehicle.” Id. at 13-

14. Officer Garcia asked Appellant to perform standard field sobriety tests, 

but had to discontinue them because Appellant was “swaying” and “there was 

oncoming traffic.” Id. at 16; see also id. at 14. Appellant consented to a 

blood draw, and Officer Garcia took him to the hospital, where he “kept 

passing out” and dozing off. Id. at 17-18. The results of the blood draw 

showed Appellant’s blood alcohol level was 0.156% and he tested positive for 

THC. Id. at 19. Viewing this evidence in the light most favorable to the 
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Commonwealth as the verdict winner, Teems, supra, we deem this evidence 

sufficient to sustain Appellant’s conviction under Subsection 3802(a)(1).

3

 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/19/2018

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3 Appellant’s brief largely consists of arguments regarding whether Officer 

Garcia or her partner had probable cause or reasonable suspicion to stop his

vehicle on the night in question. See, e.g., Appellant’s Brief at 9, 11-15. 

However, because Appellant did not raise this issue in his Rule 1925(b) 

statement, nor in his statement of the questions involved, it is waived. See

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement ... are 

waived.”); Pa.R.A.P. 2116(a) (“No question will be considered unless it is 

stated in the statement of questions involved or is fairly suggested thereby.”).