J-A20003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MICHAEL JACOB RUMBLE

Appellant No. 1421 WDA 2015

Appeal from the Judgment of Sentence August 19, 2015

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0001299-2014

BEFORE: BOWES, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 06, 2016

Michael Jacob Rumble appeals from the judgment of sentence imposed 

following his convictions for driving under the influence. We affirm.

The trial court’s Pa.R.A.P. 1925(a) opinion aptly sets forth the facts 

established by the Commonwealth. 

On April 13, 2014, Sergeant Pocsatko of the Southwest Regional 

Police Department was monitoring traffic in Point Marion, Fayette 

County, Pennsylvania. At approximately 2:30 in the morning, 

Sergeant Pocsatko observed a white Chevy Silverado, driven by 

Appellant, approach a stop sign at the end of the Greene County 

bridge. Appellant made his way to the stop sign, failed to stop, 

and made a right turn onto Main Street without using his turn 

signal. Appellant then made it to another stop sign; again he 

failed to stop, made a left turn, and did not use his turn signal. 

While the actual physical movements of the turn were proper, 

Sergeant Pocsatko observed Appellant's traffic violations. At 

that point, he initiated a traffic stop on Morgantown Street. 

Appellant used his turn signal, pulled over promptly, and parked 

parallel to the curb.
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Sergeant Pocsatko approached the vehicle and noticed Appellant 

in the driver's seat along with a passenger sitting in the front 

seat of the car. Appellant already had his documents ready and 

handed them to Sergeant Pocsatko. Sergeant Pocsatko detected 

Appellant had a severe odor of alcohol and red glassy bloodshot 

eyes. He asked Appellant if he had been drinking and Appellant 

admitted to having a few beers. Sergeant Pocsatko also noticed 

an open case of Bud Light beer on the floor of the front 

passenger side containing some cans in it and an open can of 

Bud Light beer between the passenger's legs. 

Appellant was asked to exit the vehicle to perform several field 

sobriety tests (FST). Appellant exited the vehicle without any 

trouble. Prior to starting the FST, Sergeant Pocsatko asked 

Appellant if he had any medical conditions or injuries that might 

prevent him from performing the tests, which Appellant 

answered in the negative. Appellant first performed the nine 

step walk and turn test after Sergeant Pocsatko explained and 

demonstrated the test to Appellant.

Sergeant Pocsatko determined Appellant failed this test by not 

walking heel to toe, he was off balanced, and he went past nine. 

Appellant then performed the one leg stand test. Sergeant 

Pocsatko again determined Appellant failed this test as he 

extended his arms to remain balanced, did not raise his heel six 

inches off the ground, and dropped his heel on a number of 

occasions. Based on his training and experience, Sergeant 

Pocsatko determined Appellant was incapable of safely operating 

a motor vehicle. 

Appellant was escorted to Uniontown Hospital and at 

approximately 3:55 a.m., Billy Jo Cable, the phlebotomist on 

shift, drew his blood. Ms. Cable sealed the vials containing the 

blood and gave the blood kit to Sergeant Pocsatko. Sergeant 

Pocsatko secured the blood kit in a locked refrigerator at the 

Belle Vernon Station. Steven Schwartz, a Lieutenant of 

Investigations with the Southwest Regional Police Department, 

handled the evidence once Sergeant Pocsatko secured it in the 

refrigerator. Three days later, on April 16, 2014, Lieutenant 

Schwartz transported the blood kit from the Belle Vernon Station 

to the Greensburg Crime Lab for testing. 
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The blood kit was received at the Greensburg Crime Lab and 

tested by Robert Elsavage. Mr. Elsavage tested the blood using 

a gas chromatograph. He concluded, within a reasonable degree 

of scientific certainty, that Appellant's blood alcohol 

concentration (BAC) was 0.223 percent plus or minus .010 

percent and that the analysis was done in accordance with the 

ASCLD Lab International accreditations and policies. 

. . . . 

Appellant offered his own expert, Janine S. Arvizu, who testified 

at trial. Ms. Arvizu was recognized as an expert in the field of 

analytical chemistry, lab quality control, quality care auditor, and 

BAC testing. Ms. Arvizu testified that Ms. Cable erred in 

disinfecting the area where Appellant's blood was drawn and 

erred when inverting the blood once it entered the vial. Ms. 

Arvizu also testified that the transportation of the blood from the 

Southwest Regional Police - Department to the Greensburg 

Crime Lab in an unrefrigerated condition may have compromised 

the integrity of the blood sample. Finally, Ms. Arvizu testified 

that Mr. Elsavage made several errors and did not take 

corrective actions. Specifically, Ms. Arvizu testified that Mr. 

Elsavage's testing did not comply with his validated 

methodology, some of the quality control samples used were not 

purchased from an accredited source, and Mr. Elsavage failed to 

use the same pipette when analyzing Appellant's blood. Ms. 

Arvizu thus concluded, within a reasonable degree of scientific 

certainty, that the data provided by the Commonwealth did not 

prove valid test results. At no time however did Ms. Arvizu offer 

an opinion on how or to what extent these alleged errors 

impacted the BAC results obtained by Mr. Elsavage.

Trial Court Opinion, 11/19/15, at 2-6 (footnotes and citations to transcript 

omitted).

For these crimes, Appellant was charged with two counts of driving 

under the influence and two summary traffic offenses. Appellant proceeded 

to a trial by jury, which returned guilty verdicts at all counts. On August 19, 

2015, the trial court imposed a sentence of four to twenty-three months 
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incarceration. Appellant timely appealed, the trial court and Appellant 

complied with Pa.R.A.P. 1925(b), and the matter is now ready for review. 

Appellant sets forth two issues for our consideration. 

1) Whether the Court was correct in denying Trial Counsel's 

Motion in Limine to preclude testimony that the Appellant's 

passenger had a partially opened case of beer in the passenger 

side of Appellant's vehicle and that the passenger was holding an 

open beer can.

2) Whether the trial evidence was sufficient to meet the criteria 

to convict the Appellant on all counts.

Appellant’s brief at 8.

We elect to address the sufficiency claim first, as a successful 

challenge on those grounds warrants discharge rather than a retrial.1 

Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super. 2011). Our standard 

of review is well-settled. 

In reviewing the sufficiency of the evidence, we must determine 

whether the evidence admitted at trial, and all reasonable 

inferences drawn from that evidence, when viewed in the light 

most favorable to the Commonwealth as verdict winner, was 

sufficient to enable the fact finder to conclude that the 

Commonwealth established all of the elements of the offense 

beyond a reasonable doubt. The Commonwealth may sustain its 

____________________________________________

1

 While Appellant’s statement of questions challenges all verdicts, the brief 

confines its argument to the general impairment verdict. Accordingly, we 

address only that conviction. Commonwealth v. B.D.G., 959 A.2d 362, 

371 (Pa.Super. 2008) (“In an appellate brief, parties must provide an 

argument as to each question, which should include a discussion and citation 

of pertinent authorities. This Court is neither obliged, nor even particularly 

equipped, to develop an argument for a party.”) (citations omitted).
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burden by means of wholly circumstantial evidence. Further, the 

trier of fact is free to believe all, part, or none of the evidence. 

Commonwealth v. Woodard, 129 A.3d 480, 489–90 (Pa. 2015) (citations 

omitted). “Whether sufficient evidence exists to support the verdict is a 

question of law; our standard of review is de novo and our scope of review is 

plenary.” Commonwealth v. Tejada, 107 A.3d 788, 722 (Pa.Super. 

2015). To sustain a conviction for a general impairment charge, the 

Commonwealth must establish that “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.” Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

The trial court deemed this issue waived, as Appellant’s concise 

statement simply stated “[Appellant] argues that the trial evidence did not 

meet the standards for sufficiency to convict [Appellant].” Concise 

Statement, 10/8/15, at unnumbered 3. See Trial Court Opinion, 11/19/15, 

at 9 (citing Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 

2013) in support of waiver). 

As we stated in Garland, to preserve a challenge to the sufficiency of 

the evidence on appeal the concise statement “must state with specificity 

the element or elements upon which the appellant alleges that the evidence 

was insufficient.” Id. at 344. Appellant’s boilerplate statement did not 
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specify any particular charges, let alone the elements at issue. Therefore, 

we could easily find that the issue is waived. 

However, since the claim presents a question of law, we will address it.

Appellant claims that the Commonwealth failed to establish he was incapable 

of safe driving. Appellant’s brief at 16. He highlights the Commonwealth’s 

evidence that the officer observed Appellant performing a left hand turn 

without incident, drove in a straight line, did not weave, immediately 

stopped his vehicle, and handed documents over without issue. Id. at 17.

However, this argument fails to appreciate the contrary evidence 

establishing that Appellant “[d]id not stop whatsoever” for two stop signs. 

Id. at 22. Additionally, the officer testified to Appellant’s performance on 

field sobriety tests and offered his opinion that Appellant was incapable of 

safely operating the motor vehicle. Id. at 28. Moreover, the 

Commonwealth’s expert gave an opinion to a reasonable degree of scientific 

certainty that Appellant’s BAC within two hours of driving was between .213 

and .233. Id. at 109. The jury could consider that testimony in determining 

whether Appellant was impaired at the time of driving. “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.” Segida, supra at 879. It was properly left to the jury to 

weigh all of this evidence, including the competing evidence of Appellant’s 

driving. “The weight to be assigned these various types of evidence 
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presents a question for the fact-finder, who may rely on his or her 

experience, common sense, and/or expert testimony.” Id. Thus, we hold 

that the evidence, when viewed in the light most favorable to the 

Commonwealth as the prevailing party, supports the conviction. 

Accordingly, this issue does not warrant relief. 

Appellant’s remaining issue challenges the admission of evidence 

establishing the presence of beer in Appellant’s vehicle. The pertinent facts 

are as follows. Sergeant Pocsatko testified that, when he approached the 

vehicle, Appellant’s passenger was attempting to conceal an open can of 

beer. N.T. Jury Trial, 8/5-6/15, at 24. The officer observed a partially-full 

case of beer on the passenger side floor. Id. He confirmed that he did not 

observe Appellant hand the passenger any objects, and that no cans were 

found on the driver’s side of the vehicle. Id. at 39-40. Appellant moved to 

preclude this evidence. Id. at 5. The trial court opined that the evidence 

was relevant and was not inflammatory. Trial Court Opinion, 11/19/15, at 7. 

Appellant attacks the admission of this evidence on two bases. First, 

he asserts the beer was irrelevant to his own intoxication, as all evidence 

elicited by the Commonwealth connected the beer solely to the passenger. 

Alternatively, Appellant contends the evidence was prejudicial in that 

testimony regarding the passenger’s intoxication and possession of alcohol 

influenced the jury against him.

Our standard of review applied to evidentiary rulings is well-settled.
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The admissibility of evidence is solely within the discretion of the 

trial court and will be reversed only if the trial court has abused 

its discretion. An abuse of discretion is not merely an error of 

judgment, but is rather the overriding or misapplication of the 

law, or the exercise of judgment that is manifestly unreasonable, 

or the result of bias, prejudice, ill-will or partiality, as shown by 

the evidence of record.

Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016). 

It is, of course, a fundamental principle that evidence must be relevant 

to be admissible. “The basic requisite for the admissibility of any evidence in 

a case is that it be competent and relevant.” Commonwealth v. Cox, 115 

A.3d 333, 339 (Pa.Super. 2015) (en banc) (citing Commonwealth v. 

Freidl, 834 A.2d 638 (Pa.Super. 2003)). Irrelevant evidence is 

inadmissible. Pa.R.E. 402. The Rules of Evidence require that evidence 

must satisfy two prerequisites. “Evidence is relevant if . . . it has any 

tendency to make a fact more or less probable than it would be without the 

evidence; and . . . the fact is of consequence in determining the action.” 

Pa.R.E. 401. Herein, Appellant maintains that the evidence failed both 

conditions. 

We disagree. Appellant was charged and convicted of two DUI crimes. 

The first, commonly referred to as general impairment DUI, states that an 

individual “may not drive . . . a vehicle after imbibing a sufficient amount of 

alcohol such that the individual is incapable of safely driving . . . the 

vehicle." 75 Pa.C.S. § 3802(a)(1). The second DUI count charged Appellant 

with violating 75 Pa.C.S. § 3802(c), which prohibits a person from driving, 
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operating, or being in physical control of a vehicle “after imbibing a sufficient 

amount of alcohol such that the alcohol concentration in the individual's 

blood or breath is 0.16% or higher within two hours after the individual has 

driven, operated, or been in actual physical control of the movement of the 

vehicle.”

In contrast to § 3802(a)(1), proof of the § 3802(c) offense does not 

require the Commonwealth to establish impairment. We have recognized 

that the relevance of evidence in DUI prosecutions depends on the theories 

alleged. The seminal case is Commonwealth v. Kemble, 605 A.2d 1240 

(Pa.Super. 1992), in which we reversed a conviction for driving at a 

particular BAC level. Therein, the Commonwealth, which did not charge a 

general impairment offense, presented the arresting officer’s observations 

that the driver had difficulty driving, staggered when exiting her vehicle, 

possessed an odor of alcohol, and failed sobriety tests. Id. at 1241. We 

held that evidence was irrelevant since the only material fact was whether 

the driver’s BAC was at or above the specified level. 

[T]he only relevant evidence that would prove the fact that a 

defendant violated [the specific BAC charge] would relate to the 

existence of an intoxilyzer test, the results of the test, the 

reliability of the intoxilyzer machine, the qualifications of the 

person who administered the test, the procedures utilized in 

conducting the test and the methods employed in arriving at the 

test results. In contrast, in a [general impairment] prosecution 

the Commonwealth may introduce evidence regarding a 

defendant's behavior prior to her arrest and/or during or 

subsequent to her arrest; the Commonwealth may introduce 

evidence regarding the number of alcoholic drinks consumed by 
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a defendant, her illegal or erratic driving behavior, her apparent 

“state of mind” at the time in issue, the existence of an odor of 

alcohol emanating from a defendant, the fact that her eyes were 

bloodshot and the fact that she “sway[ed] and sagg[ed]” 

subsequent to her exit from her automobile. Commonwealth v. 

Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988). 

Id. at 1242 (footnote omitted). See also Freidl, supra (applying Kemble

and holding that a defendant could not introduce videotape evidence of his 

field sobriety tests as the Commonwealth did not charge general 

impairment).

In light of the foregoing, we now turn to the application of Pa.R.E. 401 

to the evidence. If Appellant was drinking alcohol while driving, that fact is 

of consequence to the general impairment charge. Therefore, the question 

is whether the challenged evidence makes that fact more probable. 

“Evidence is relevant if it logically tends to establish a material fact in the 

case, tends to make a fact at issue more or less probable or supports a 

reasonable inference or presumption regarding a material fact.” 

Commonwealth v. Loughnane, 128 A.3d 806, 818 (Pa.Super. 2015) 

(quoting Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa.Super. 

2012)). 

The evidence at issue supported a reasonable inference that Appellant 

drank alcohol while driving. That Sergeant Pocsatko did not observe any 

direct signs of Appellant passing the can to the passenger does not negate 

the possibility that Appellant drank from the open container at some point 
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prior to police observation. Additionally, Appellant could have consumed 

beer from the partially-full case on the floor and discarded the cans while 

driving. An open alcohol container in a vehicle and a partially-consumed 

case of beer tend to establish that Appellant was drinking alcohol while 

driving. The open container’s proximity to the passenger might lessen that 

probability, but does not eliminate it. Appellant emphasizes that the beer 

cans were on the passenger’s floor, but that fact does not preclude 

Appellant’s access to the open container or the used alcohol from the case of 

beer in the vehicle. Indeed, our law holds that two persons may 

constructively possess the same item. See e.g. Commonwealth v. 

Valette, 613 A.2d 548, 550 (Pa. 1992) (“Constructive possession may be 

found in one or more actors where the item in issue is in an area of joint 

control and equal access.”). 

Furthermore, the general impairment DUI charge “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.” Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa.Super. 

2006); see also 75 Pa.C.S. § 1547(f) (provisions of statute regarding 

chemical testing of blood “shall not be construed as limiting the introduction 

of any other competent evidence bearing upon the question whether or not 

the defendant was under the influence of alcohol.”). Therefore, the presence 
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of alcohol in a vehicle driven by Appellant was relevant to the general 

impairment charge. 

Having established the evidence was relevant we next consider 

Appellant’s argument that the evidence should have been excluded as 

prejudicial. 

The presence of alcohol and open containers of alcohol in the 

Appellant’s vehicle, even though not in his possession, did create 

unfair prejudice in the eyes of the jury against [Appellant]. 

Knowledge of alcohol in the presence of the [a]ppellant in his 

vehicle led to an unfair prejudice against the [a]ppellant that he 

was drinking and this led to a conviction despite arguments 

against his guilt. Said testimony biased the jury and led them 

towards conviction despite evidence to the contrary. Moreover, 

said evidence did confuse the jury by bringing up issues that had 

no connection to the [a]ppellant and may have mislead [sic] the 

jury into believing that the alcohol was the [a]ppellant[‘]s and 

not his passenger[‘]s. 

Appellant’s brief at 14. Our Supreme Court has set forth the following test 

for excluding otherwise admissible evidence on prejudice grounds.

The admissibility of evidence is determined by its relevance and 

probative value. Commonwealth v. Lilliock, 740 A.2d 237, 

244 (Pa.Super.1999). Relevant and probative evidence is 

inadmissible if its probative value is outweighed by unfair 

prejudice. Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 

395, 402 (1994). This Court has previously stated that all 

evidence in a criminal proceeding is prejudicial to the defendant, 

Commonwealth v. Kitchen, 730 A.2d 513, 519 

(Pa.Super.1999), and that relevant evidence is to be excluded 

only when it is “so prejudicial that it may inflame the jury to 

make a decision based upon something other than the legal 

propositions relevant to the case.” Id. (citations omitted).

Commonwealth v. Colon, 846 A.2d 747, 753 (Pa.Super. 2004).
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We find that the evidence was not so prejudicial as to bar its admission 

under these principles. Since Appellant admitted to drinking and the officer 

testified to physical indicia of intoxication, the present situation is not one 

wherein the beer was the only evidence of intoxication. Therefore, the trial 

court did not abuse its discretion in admitting the evidence. 

Furthermore, we would deem any error in admitting the evidence 

harmless. Our Supreme Court has explained that an error is harmless “if it 

could not have contributed to the verdict, or stated conversely, an error 

cannot be harmless if there is a reasonable possibility the error might have 

contributed to the conviction.” Commonwealth v. Poplawski, 130 A.3d 

697, 716 (Pa. 2015). While the Commonwealth does not argue this point, 

our Supreme Court has held that its failure to do so does not preclude a 

harmless error analysis. Commonwealth v. Allshouse, 36 A.3d 163, 182 

(Pa. 2012).

Herein, we are satisfied that there is no reasonable possibility that the 

evidence contributed to the conviction. The Commonwealth established that 

Appellant admitted to the officer that he had consumed a few beers. N.T., 

8/5-6/15, at 24. Additionally, the officer testified to physical indicia of 

Appellant’s intoxication. Id. at 24-25. Therefore, the evidence was 

cumulative of other evidence. Additionally, the officer agreed on crossexamination that the facts “show it’s the passenger holding a beer can.” Id. 

at 40. Finally, Appellant’s BAC was at least .213, which is nearly three times 
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the legal limit. Thus, the challenged evidence, which was not directly linked 

to Appellant in any manner, ”was so insignificant by comparison that the 

error could not have contributed to the verdict.” Commonwealth v. 

Hairston, 84 A.3d 657, 672 (Pa. 2014).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016