J-S74024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

YAHYA ASAAD MUHAMMAD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2438 EDA 2019

Appeal from the Judgment of Sentence Entered July 23, 2019

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0007151-2018

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: Filed: February 7, 2020

Yahya Asaad Muhammad (Appellant) appeals from the judgment of 

sentence imposed after the trial court convicted him of driving under the 

influence of alcohol (DUI).

1

 We affirm.

The trial court accurately summarized the factual background as follows:

On September 9, 2018, Officer Evan Flora was working as a 

patrol officer in Bridgeport Borough, Montgomery County. Notes 

of Testimony, “N.T.” Apr. 15, 2019 at 4. During his shift that 

night, he received a dispatch from adjacent Upper Merion 

Township that there was a hit and run in the area of 202 and 

DeKalb Street and that officers observed a dark colored sedan with

heavy damage driving away from that area on two rims. Id. at 

5-6. Officer Flora observed a maroon Ford 500 driving on two 

rims that were sparking underneath the car; Flora could hear the 

metal screeching on the ground. Id. at 6. The car was traveling 

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(a)(1).
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well under the posted speed limit of 25 mph. Id. Officer Flora 

believed this to be the car from the dispatch. Id. at 6-7. He

executed a U-turn and got behind the vehicle. Id. at 7. 

[Appellant] made a U-turn, at which point Officer Flora activated 

his emergency lights and executed a traffic stop. Id. [Appellant]

pulled over and immediately exited his vehicle, before Officer Flora 

approached him. Id. [Appellant] began to inspect the damage to 

his vehicle. Id. at 8. Officer Flora approached [Appellant] and 

asked him for his license, registration and proof of insurance. Id.

at 9. [Appellant] retrieved a stack of papers from the vehicle and 

began sorting through it and dropping papers. Id. When he 

attempted to retrieve the dropped documents, Officer Flora 

observed him lose his balance and steady himself on the door of 

the car. Id. at 10.

Officer Flora questioned [Appellant] about the damage to his 

car and [Appellant] indicated that he ran over a median in Upper 

Merion.[FN1] Id. During their conversation, Officer Flora observed 

that [Appellant’s] pupils were dilated, his eyes were glassy and 

bloodshot and there was an odor of alcohol on his breath. Id. at 

11. Officer Flora asked [Appellant] if he had been drinking, [and 

Appellant] initially responded, “No.” Id. The second time, he said 

“not within the hour.” Id. Finally, [Appellant] stated, “It’s my

birthday man, come on.” Id. at 12. At this point Officer Flora 

attempted to administer field sobriety tests. Id. at 13. 

Throughout the testing, [Appellant] attempted to talk his way out 

of it. Id. at 15-16. Officer Flora administered a portable breath 

test. Id. His first attempt at the breath test was unsuccessful 

and on his second attempt he sucked air in instead of blowing air 

out. Id. at 15. Officer Flora attempted to administer additional 

tests, but [Appellant] complained about each location until, 

eventually, he refused to move to a location to conduct further 

field sobriety testing. Id. at 17. While Officer Flora was 

attempting to explain a third test, [Appellant] put his hands 

behind his back and stated, “arrest me.” Id. [Appellant] also 

refused to submit to chemical testing. Id. at 55.

FN1 Police ultimately determined that [Appellant] was 

not involved in the hit and run. Id. at 19.

Trial Court Opinion, 9/16/19, at 1-3.
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Appellant appeared for a bench trial on April 15, 2019, after which the 

trial court found him guilty of DUI, general impairment. On July 23, 2019, the 

trial court sentenced Appellant to three to six months of incarceration. 

Appellant filed this timely appeal. Both the trial court and Appellant have 

complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant presents one issue for our review:

Was the evidence insufficient as a matter of law for the court 

to convict [Appellant] of 75 Pa.C.S.A. § 3802(a)(1) DUI/Unsafe 

Driving when there was insufficient evidence [Appellant] operated 

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 a vehicle.”

Appellant’s Brief at 2.

Our standard of review of Appellant’s sufficiency claim 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 [that of] 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 trier of fact while 
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passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, 

part or none of the evidence.

To reiterate, the jury, as the trier of fact—while passing on the 

credibility of the witnesses and the weight of the evidence—is free 

to believe all, part, or none of the evidence. In conducting review, 

the appellate court may not weigh the evidence and substitute its 

judgment for the fact-finder.

Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa. Super. 2019) 

(citations omitted).

Instantly, Appellant was convicted of DUI, general impairment, pursuant 

to 75 Pa.C.S.A. § 3802(a)(1), which states that 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.”

Appellant argues that the evidence was insufficient to support a finding 

that he was incapable of safe driving because he “was able to walk unaided, 

talk coherently and he followed all of the officer’s directions.” Appellant’s Brief 

at 5. Appellant further asserts that Officer Flora did not “witness any driving 

behavior . . . which would suggest that he was incapable of safe driving.” Id.

at 7. He continues:

It turned out that [Appellant] was not involved in the hit and run 

in Upper Merion, so that could not provide evidence of incapacity 

to drive. When Officer Flora turned on his lights, [Appellant] 

immediately pulled over and was able to hand over his driving 

documents. There is no blood or breath test to show he was 

intoxicated. Moreover, there are no roadside tests to show he was 

intoxicated.
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Id.

Appellant’s argument is unsupported by both the record and prevailing 

authority. Our Supreme Court has explained:

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. Blood alcohol level is admissible in a subsection 3801(a)(1) 

case only insofar as it is relevant to and probative of the accused’s 

ability to drive safely at the time he or she was driving. 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.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009) (emphasis 

added).

The trial court, sitting as the fact finder in this case, reasoned:

Instantly, [Appellant] was driving a severely damaged 

vehicle and when initially questioned about the damage, he stated 

that he ran over a median in Upper Merion and presumably 

continued to drive the vehicle into a neighboring jurisdiction on 

two rims. When Officer Flora got behind him, he made a U-turn. 

When Officer Flora made contact with [Appellant,] he displayed 

signs of impairment, including glassy, bloodshot eyes, dilated 

pupils and an odor of alcohol on his breath. He was uncooperative 

during field sobriety tests. Furthermore, he admitted that he had 

consumed alcohol and told Officer Flora to arrest him following the 

Officer’s attempt to administer field sobriety tests. The foregoing 

is sufficient to prove that [Appellant] imbibed a sufficient amount 

of alcohol as to render him incapable of safe driving.

Trial Court Opinion, 9/16/19, at 4.
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The trial court’s reasoning is irrefutable. The Commonwealth presented 

one witness, Officer Evan Flora; Appellant did not present any witnesses. See

N.T., 4/15/19, at 58. Officer Flora’s testimony comports with the trial court’s 

recitation of the evidence reproduced above. For instance, Officer Flora

testified that he first observed Appellant’s vehicle “on two rims that was 

sparking from underneath the car” and heard it screeching. Id. at 7. When 

he pulled Appellant over, he observed Appellant, who was alone in the vehicle,

to have glassy and bloodshot eyes, “a strong odor of alcoholic beverage 

emitting from his breath,” and, upon standing, an “unsteady gait.” Id. at 11. 

Officer Flora testified that Appellant “was attempting to talk his way out of” 

the portable breath test, and then “began sucking on the device.” Id. at 15. 

Although there is more, this testimony without more was sufficient for the trial 

court to conclude that Appellant drove his vehicle “after imbibing a sufficient 

amount of alcohol such that [Appellant was] 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).

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/20