J-S48010-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellee, : 

: 

 v. : 

: 

CHAD EVERETT WANDEL, : 

: 

 Appellant : No. 484 MDA 2014 

Appeal from the Judgment of Sentence January 6, 2014, 

Court of Common Pleas, Luzerne County, 

Criminal Division at No. CP-40-CR-0004005-2012 

BEFORE: DONOHUE, JENKINS and PLATT*, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED AUGUST 08, 2014 

Chad Everett Wandel (“Wandel”) appeals from the judgment of 

sentence entered on January 6, 2014 by the Court of Common Pleas of 

Luzerne County, Criminal Division, following his conviction for driving under 

influence of alcohol or controlled substance, minors (“DUI – minors”).1

 After 

careful review, we affirm. 

 The relevant facts and procedural history in this case are as follows. 

On April 21, 2011, shortly after midnight, Sergeant Damian Hoover 

(“Sergeant Hoover”) of the Lehman Township Police Department responded 

to a motor vehicle crash on State Route 118 near Pike’s Creek Park involving 

a silver Audi and a motorcycle. By the time Sergeant Hoover arrived at the 

scene, paramedics had transported the driver of the motorcycle to a local 

 

1

 75 Pa.C.S.A. § 3802(e). 
J-S48010-14

- 2 - 

hospital and Wandel, the driver of the silver Audi, had fled the scene of the 

crash. However, while Sergeant Hoover was investigating the crash, 

Wandel’s father returned Wandel to the scene. While Sergeant Hoover 

questioned Wandel, who was 18-years-old on the night in question, he 

noticed an odor of alcohol on Wandel’s person and breath. Sergeant Hoover 

placed Wandel under arrest and transported him to Wilkes-Barre General 

Hospital for a blood alcohol concentration (“BAC”) test. The test revealed 

that Wandel’s BAC was .047 percent.

 On November 25, 2013, following a bench trial, the trial court found 

Wandel guilty of DUI – minors. On January 6, 2014, the trial court 

sentenced Wandel to seven days to six months of house arrest. Additionally, 

the trial court also fined Wandel $500.00, required him to enroll in an 

alcohol highway safety program, undergo evaluation for drug and alcohol 

treatment, and pay $307.00 to Wilkes-Barre General Hospital in restitution 

for his BAC test. Wandel also received a PENNDOT imposed driver’s license 

suspension. That same day, Wandel filed post-sentence motions. On 

January 14, 2014, the trial court denied Wandel’s post-sentence motions. 

On February 3, 2014, Wandel filed a notice of appeal to this Court. On 

appeal, Wandel raises the following issue for our review: 

Sufficiency of a Blood Test Result. For DUI—

minor, blood-alcohol content may not be 0.02% or 

higher within two hours after the minor has driven. 

Here, the Commonwealth presented admissible 

evidence for Wandel’s blood alcohol result. The 
J-S48010-14

- 3 - 

Commonwealth, however, failed to present evidence 

that the result is reliable and likely accurate. The 

laboratory improperly calibrates its blood-testing 

machine. Therefore, is this weak and inconclusive 

evidence insufficient to show Wandel’s alcohol 

concentration was .02% or higher within two hours 

of driving? 

Wandel’s Brief at 4 (footnote omitted).

In reviewing a challenge to the sufficiency of the evidence, our 

standard of review is as follows: 

As a general matter, our standard of review of 

sufficiency claims requires that we evaluate the 

record ‘in the light most favorable to the verdict 

winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the 

evidence.’ Commonwealth v. Widmer, 560 Pa. 

308, 744 A.2d 745, 751 (2000). ‘Evidence will be 

deemed sufficient to support the verdict when it 

establishes each material element of the crime 

charged and the commission thereof by the accused, 

beyond a reasonable doubt.’ Commonwealth v. 

Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). 

Nevertheless, ‘the Commonwealth need not establish 

guilt to a mathematical certainty.’ Id.; see also

Commonwealth v. Aguado, 760 A.2d 1181, 1185 

(Pa. Super. 2000) (‘[T]he facts and circumstances 

established by the Commonwealth need not be 

absolutely incompatible with the defendant’s 

innocence’). Any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence 

is so weak and inconclusive that, as a matter of law, 

no probability of fact can be drawn from the 

combined circumstances. See Commonwealth v. 

DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001). 

The Commonwealth may sustain its burden by 

means of wholly circumstantial evidence. See

Brewer, 876 A.2d at 1032. Accordingly, ‘[t]he fact 

that the evidence establishing a defendant’s 
J-S48010-14

- 4 - 

participation in a crime is circumstantial does not 

preclude a conviction where the evidence coupled 

with the reasonable inferences drawn therefrom 

overcomes the presumption of innocence.’ Id.

(quoting Commonwealth v. Murphy, 795 A.2d 

1025, 1038–39 (Pa. Super. 2002)). Significantly, we 

may not substitute our judgment for that of the fact 

finder; thus, so long as the evidence adduced, 

accepted in the light most favorable to the 

Commonwealth, demonstrates the respective 

elements of a defendant’s crimes beyond a 

reasonable doubt, the appellant’s convictions will be 

upheld. See Brewer, 876 A.2d at 1032. 

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013) 

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. 

Super. 2013)). 

 Section 3802(e) of the Vehicle Code states the following: 

A minor 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 minor’s blood or breath 

is 0.02% or higher within two hours after the minor 

has driven, operated or been in actual physical 

control of the movement of the vehicle. 

75 Pa.C.S.A. § 3802(e). Thus, in order for a person to be in violation of 

section 3802(e), the Commonwealth must prove that the person was a 

minor,2

 was driving, operating, or controlling a vehicle, and had a BAC of .02 

percent or higher within two hours after driving, operating, or controlling the 

vehicle. See id. 

 

2

 The vehicle code defines a minor as “[a]n individual who is under 21 years 

of age.” 75 Pa.C.S.A. § 3801.
J-S48010-14

- 5 - 

 Although Wandel concedes that he is a minor, that he was operating a 

vehicle on the night in question, and that Wilkes-Barre General Hospital 

obtained his BAC within two hours of operating that vehicle, Wandel asserts 

that there was insufficient evidence to conclude that his BAC was .047 

percent. Wandel’s Brief at 5. Thus, the only element of the DUI – minors 

statute that Wandel claims the Commonwealth did not sufficiently prove is 

that his BAC was greater than .02 percent. Wandel contends that the gas 

chromatograph instrument used to measure his BAC was improperly 

calibrated, causing results that were both inaccurate and unreliable. Id. at 

9-16. Therefore, Wandel argues that the Commonwealth failed to provide 

sufficient evidence supporting his conviction for DUI – minors. Id. at 16-22. 

We conclude that the trial court did not err in finding that Wandel’s 

sufficiency of the evidence claim fails.3

 Our Court has held that “[a] claim 

challenging the sufficiency of the evidence . . . asserts that there is 

insufficient evidence to support at least one material element of the crime 

for which Appellant has been convicted.” Commonwealth v. Lyons, 833 

A.2d 245, 258 (Pa. Super. 2003) (citation omitted). Thus, as soon as the 

trial court has admitted proof of each material element of a crime into 

evidence, an appellant’s sufficiency of the evidence claim will fail. See id. 

 

3

 We note that our rationale in reaching this conclusion differs from that of 

the trial court. However, “[w]e can affirm the [trial] court’s decision if there 

is any basis to support it, even if we rely on different grounds to affirm.” 

Commonwealth v. McLaurin, 45 A.3d 1131, 1138 (Pa. Super. 2012), 

appeal denied, 65 A.3d 413 (Pa. 2013). 
J-S48010-14

- 6 - 

Wandel readily concedes that the trial court admitted into evidence proof 

that his BAC on the night in question was .047 percent. See Wandel’s Brief 

at 4. In his appellate brief, Wandel states, “[h]ere, the Commonwealth 

presented admissible evidence for Wandel’s blood alcohol result.”4

 Id. 

Therefore, because Wandel concedes that the trial court admitted into 

evidence proof that his BAC on the night question was .047 percent, which is 

the sole element of the DUI – minors statute that he contests, Wandel’s 

sufficiency of the evidence claim fails. See Lyons, 833 A.2d 245, 258 (Pa. 

Super. 2003) (citation omitted). 

Wandel’s appellate brief confuses a challenge to the sufficiency of the 

evidence with a challenge to the weight of the evidence. In his appellate 

brief, Wandel cites the standard of review for sufficiency of the evidence 

claims, titles the issue he presents “[s]uffiency of a blood test result,” and 

refers numerous times throughout the remainder of his brief to the 

sufficiency of the evidence. See Wandel’s Brief at 3-4, 6-8, 16, 19, 22-23. 

However, the argument that Wandel makes throughout his brief is a weight 

of the evidence argument. 

Wandel argues that his BAC test results are potentially inaccurate and 

unreliable because according to his expert’s opinion, the laboratory at 

Wilkes-Barre General Hospital improperly calibrated the gas chromatograph 

 

4

 Our review of Wandel’s trial transcript reveals that the trial court admitted 

into evidence proof that Wandel’s BAC was .047 percent on the night in 

question, without objection. See N.T., 11/25/13, at 121-22. 
J-S48010-14

- 7 - 

instrument used to measure his BAC. Wandel’s Brief at 9-16. Our Court has 

held that the challenges to the reliability of BAC test results are challenges 

that go to the weight of the evidence. Commonwealth v. Sullivan, 581 

A.2d 956, 959 (Pa. Super. 1990); see also Commonwealth v. Shiffler, 

541 A.2d 780, 783 (Pa. Super. 1988) (determining that a challenge to the 

reliability of BAC results goes to the weight of the evidence). 

Moreover, what Wandel asks us to do is afford more weight to the 

testimony of his expert witness over that of the Commonwealth’s expert, the 

medical technologist who ran Wandel’s BAC test. See Wandel’s Brief at 9-

16. This Court has held that “[a]n argument that the finder of fact should 

have credited one witness’ testimony over that of another witness goes to 

the weight of the evidence, not the sufficiency of the evidence.” 

Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009). 

Therefore, based on the foregoing authority, it is clear that Wandel has 

raised a sufficiency claim in which he presents a weight of the evidence 

argument. 

Our Supreme Court has held that an “appellant’s challenge to the 

sufficiency of the evidence must fail[,]” where an appellant phrases an issue 

as a challenge to the sufficiency of the evidence, but the argument that 

appellant provides goes to the weight of the evidence. Commonwealth v. 

Small, 741 A.2d 666, 672 (Pa. 1999). Because Wandel raised a sufficiency 
J-S48010-14

- 8 - 

claim in which he presents a weight of the evidence argument, his 

sufficiency claim also fails for that reason. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/8/2014