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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 ju dgment of sentence entered on January 6, 2014 by the Court of C ommon Pleas of Luzerne County, Criminal Division, following his convi ction 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 a re as follows. On April 21, 2011, shortly after midnight, Sergeant Damian Hoover (“Sergeant Hoover”) of the Lehman Township Police Depar tment 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 moto rcycle to a local

1 75 Pa.C.S.A. § 3802(e).J-S48010- 14

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hospital and Wandel, the driver of the silver Audi, h ad fled the scene of the crash. However, while Sergeant Hoover was investigatin g the crash, Wandel’s father returned Wandel to the scene. While S ergeant Hoover questioned Wandel, who was 18-years-old on the night i n question, he noticed an odor of alcohol on Wandel’s pe rson and breath. Sergeant Hoover placed Wandel under arrest and transported him to Wil kes-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 h im to enroll in an alcohol highway safety program, undergo evaluation fo r drug and alcohol treatment, and pay $307.00 to Wilkes-Barre General Hospital in restitution for his BAC test. Wandel also received a PENNDOT impose d driver’s license suspension. That same day, Wandel filed post-sentence mot ions. On January 14, 2014, the trial court denied Wandel’s po st -sentence motions. On February 3, 2014, Wandel filed a notice of appeal to this Court. On appeal, Wandel raises the following issue for our rev iew:

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. TheJ-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 evid ence, our standard of review is as follows:

As a general matter, our standard of review of sufficiency claims requires that we evaluate the recor d ‘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 est ablish 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’sJ-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 convict ions 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 follow ing:

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, ope rating, 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

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Although Wandel concedes that he is a minor, that he w as operating a vehicle on the night in question, and that Wilkes-Bar re General Hospital obtained his BAC within two hours of operating that v ehicle, Wandel asserts that there was insufficient evidence to conclude that h is 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 s ufficiently prove is that his BAC was greater than .02 percent. Wandel cont ends that the gas chromatograph instrument used to measure his BAC was imp roperly calibrated, causing results that were both inaccurate and unreliable. Id. at 9-16. Therefore, Wandel argues that the Commonwealt h 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 findin g that Wan del’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 eleme nt of a crime into evidence, an appellant’s sufficiency of the evidence claim will f ail. See id.

3 We note that our rationale in reaching this conclusi on 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 differen t 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

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Wandel readily concedes that the trial court admitted i nto 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 admissibl e evidence for Wandel’s blood alcohol result.” 4 Id. Therefore, because Wandel concedes that the trial court a dmitted 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 co ntests, 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 suf ficiency of the evidence with a challenge to the weight of the eviden ce. In his appellate brief, Wandel cites the standard of review for suffici ency of the evidence claims, titles the issue he presents “[s]uffiency of a bl ood 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 h is brief is a weight of the evidence argument. Wandel argues that his BAC test results are potentially inaccurate and unreliable because ac cording to his expert’s opinion, the laboratory at Wilkes-Barre General Hospital improperly calibrated t he gas chromatograph

4 Our review of Wandel’s trial transcript reveals that t he 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

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instrument used to measure his BAC. Wandel’s Brief at 9 -16. Our Court has held that the challenges to the reliability of BAC te st 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 th at a challenge to the reliability of BAC results goes to the weight of the e vidence). Moreover, what Wandel asks us to do is afford more weig ht to the testimony of his expert witness over that of the Comm onwealth’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 anoth er 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 cle ar 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 challen ge to the suffi ciency of the evidence must fail[,]” where an appellant phrases an issue as a challenge to the sufficiency of the evidence, but t he 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 sufficiencyJ-S48010- 14

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claim in which he presents a weight of the evidence argu ment, his sufficiency claim also fails for that reason. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/8/2014