J-S84024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRISTOPHER SHAKESPEARE

Appellant No. 511 EDA 2016

Appeal from the Judgment of Sentence Dated February 4, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0003751-2015

BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 21, 2016

Appellant Christopher Shakespeare appeals the February 4, 2016 

judgment of sentence imposed following his conviction of two counts of 

driving under the influence of alcohol. Appellant challenges the sufficiency 

and weight of the evidence. We affirm. 

On December 23, 2014, at approximately 3:30 p.m., Appellant rearended a white car driven by Cheryl Ayares on Route 202 in the State of 

Delaware. Before the collision, Ayares noticed that Appellant was driving 

erratically. After the collision, Appellant got out of his car and approached 

Ayares. As he stood near her car, Appellant slurred his speech and swayed. 

Based on her experience and her observations of Appellant, Ayares believed 

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*

Former Justice specially assigned to the Superior Court.
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Appellant was intoxicated. Appellant said to Ayares, “Yeah, I’m drunk.” 

Ayares responded, “We’ll let the police determine whether you’re drunk or 

not when they get here.” Appellant then returned to his car and drove 

away. Ayares noted Appellant’s license plate and gave that information to 

the police. See Trial Ct. Op., 5/19/16, at 4; N.T. 12/17/15, at 9-24. 

Based on information Ayares provided, State Trooper Stephanie 

Waskiewicz was dispatched to Appellant’s house in Delaware County, 

Pennsylvania. She arrived at approximately 5:15 p.m. She saw Appellant’s 

SUV in his garage and noticed white paint transfer on the front passengerside bumper. See Trial Ct. Op. at 4; N.T. 12/17/15, at 50-53.

Approximately five minutes after arriving at the house, Trooper

Waskiewicz spoke to Appellant. She noticed that Appellant’s eyes were 

bloodshot and glassy, and she smelled alcohol on Appellant’s breath and 

person. Appellant was slurring his speech and swaying. When Trooper 

Waskiewicz asked about the accident, Appellant became belligerent and 

loud. Based on her training and experience, the trooper believed Appellant 

was so intoxicated that he was unable to operate a vehicle safely. When she 

asked Appellant about his driving that day, he admitted that he worked in 

Delaware and had driven home by taking Route 202 to Route 100 and then 

taking Smith Road into Pennsylvania. See Trial Ct. Op. at 5-6; N.T. 

12/17/15, at 54-58, 62. Appellant said he had drunk one beer after he 

arrived home. N.T. 12/17/15, at 56.
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At approximately 5:21 p.m., Appellant told Trooper Waskiewicz that he 

had been home for approximately 45 minutes to an hour. Trooper 

Waskiewicz called Trooper Gibson and asked him to bring a portable breath 

test (PBT). Trooper Gibson arrived at approximately 5:45 p.m. and 

administered the PBT, which tested positive for alcohol. At that point, 

Appellant became very agitated and had to be restrained. Trial Ct. Op. at 5; 

N.T. 12/17/15, at 58-60, 69.

Appellant was arrested, handcuffed, and transported to Riddle 

Memorial Hospital, where he consented to a blood draw. Testing of the 

blood sample revealed a blood alcohol content (BAC) of 0.123%. Trial Ct. 

Op. at 5; N.T. 12/17/15, at 60-62; Exhibit C-1 (stipulation to lab report).

After a non-jury trial on December 17, 2015, Appellant was convicted 

under two provisions of the Vehicle Code prohibiting driving under the 

influence of alcohol, 75 Pa. C.S. § 3802: Section 3802(a)(1), which prohibits 

driving after imbibing sufficient alcohol to cause general impairment, and 

Section 3802(b), which prohibits driving after imbibing sufficient alcohol to 

cause a high blood alcohol content. Appellant was also convicted of 

disorderly conduct (18 Pa.C.S. § 5503). On January 27, 2016, Appellant 

filed a post-trial motion challenging the sufficiency and weight of the 

evidence. On February 4, 2016, after a hearing, the trial court granted the 

motion with respect to disorderly conduct, and denied it with respect to the 

two DUI offenses. That same day, the court sentenced Appellant to 48 
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hours to six months in Delaware County prison and 64 hours of community 

service.1 On February 10, 2016, Appellant filed a timely notice of appeal.

In this appeal, Appellant raises the following issues, as stated in his 

brief:

I. DID THE TRIAL COURT ERR IN FINDING DEFENDANT GUILTY 

OF VIOLATING 75 Pa.C.S.A. § 3802(b) BEYOND A 

REASONABLE DOUBT WHERE THE EVIDENCE PRESENTED BY 

THE COMMONWEALTH WAS INSUFFICIENT AND/OR AGAINST 

THE WEIGHT OF THE EVIDENCE?

II. DID THE TRIAL COURT ERR IN FINDING DEFENDANT GUILTY 

OF VIOLATING THE PENNSYLVANIA MOTOR VEHICLE CODE 

75 Pa.C.S.A. § 3802(a)(1) BEYOND A REASONABLE DOUBT 

WHEN THE EVIDENCE PRESENTED BY THE COMMONWEALTH 

WAS INSUFFICIENT AND/OR AGAINST THE WEIGHT OF THE 

EVIDENCE?

Appellant’s Brief at 4. 

While Appellant presents two issues corresponding to the two crimes 

of which he was convicted, each of Appellant’s issues contains two separate 

claims: a weight of the evidence claim and a sufficiency claim.

As the Supreme Court of Pennsylvania has explained:

The distinction between these two challenges is critical. 

A claim challenging the sufficiency of the evidence, if 

granted, would preclude retrial under the double jeopardy 

provisions of the Fifth Amendment to the United States 

Constitution, and Article I, Section 10 of the Pennsylvania 

Constitution, whereas a claim challenging the weight of the 

evidence if granted would permit a second trial. 

A claim challenging the sufficiency of the evidence is a 

question of law. Evidence will be deemed sufficient to 

support the verdict when it establishes each material 

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1

 The two DUI offenses merged for sentencing purposes.
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element of the crime charged and the commission thereof 

by the accused, beyond a reasonable doubt. Where the 

evidence offered to support the verdict is in contradiction 

to the physical facts, in contravention to human experience 

and the laws of nature, then the evidence is insufficient as 

a matter of law. When reviewing a sufficiency claim the 

court is required to view the evidence in the light most 

favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence. 

A motion for new trial on the grounds that the verdict is 

contrary to the weight of the evidence, concedes that there 

is sufficient evidence to sustain the verdict. Thus, the trial 

court is under no obligation to view the evidence in the 

light most favorable to the verdict winner. An allegation 

that the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court. A new trial 

should not be granted because of a mere conflict in the 

testimony or because the judge on the same facts would 

have arrived at a different conclusion. A trial judge must 

do more than reassess the credibility of the witnesses and 

allege that he would not have assented to the verdict if he 

were a juror. Trial judges, in reviewing a claim that the 

verdict is against the weight of the evidence do not sit as 

the thirteenth juror. Rather, the role of the trial judge is 

to determine that notwithstanding all the facts, certain 

facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny 

justice.

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations, 

quotation marks, and footnote omitted).

Sufficiency of the Evidence

Because Appellant’s sufficiency arguments go to the legal question 

whether he could be convicted of the charged offenses, we address those 

questions first. 

We apply the following standard of review:
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When reviewing a sufficiency of the evidence claim, this Court 

must review the evidence and all reasonable inferences in the 

light most favorable to the Commonwealth as the verdict winner, 

and we must determine if the evidence, thus viewed, is sufficient 

to enable the fact-finder to find every element of the offense 

beyond a reasonable doubt. The fact-finder is free to believe all, 

part, or none of the evidence presented. This Court may not 

substitute its judgment for that of the fact-finder, and if the 

record contains support for the verdict, we may not disturb the 

verdict. 

Commonwealth v. Goins, 867 A.2d 526, 527-28 (Pa. Super. 2004) 

(citations omitted). 

75 Pa.C.S. § 3802(a)(1)

Subsection 3802(a)(1) of the Vehicle Code provides: “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.” 75 Pa.C.S. § 3802(a)(1). The 

Supreme Court of Pennsylvania has explained: 

[S]ubsection 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. 

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

The Court also noted:

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; 
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demeanor, including toward the investigating officer; physical 

appearance, particularly bloodshot eyes and other physical signs 

of intoxication; odor of alcohol, and slurred speech. 

Id. 

In Segida, the defendant was involved in a one-car accident. An 

officer responding to the scene of the accident smelled alcohol on Segida’s 

person. Segida admitted that he had been drinking and was driving home 

when the accident occurred. He failed three field sobriety tests. The police 

then transported him to the hospital, where a blood test revealed a BAC of 

0.326%. Segida was convicted of DUI – general impairment (§ 3802(a)) 

and DUI – highest rate of alcohol (§ 3802(c)). On appeal, this Court held 

that the evidence was insufficient to support either conviction. With regard 

to Subsection 3802(a), this Court held that the Commonwealth was required 

to prove that Segida was impaired at the time he was driving, and had failed 

to do so. Commonwealth v. Segida, 912 A.2d 841, 847-50 (Pa. Super. 

2006) (“Segida I”), vacated, 985 A.2d 871 (Pa. 2009). 

The Commonwealth appealed with respect to the Subsection 3802(a) 

conviction only. The Supreme Court of Pennsylvania agreed with this Court 

that Subsection 3802(a) was an “at the time of driving” offense, but held 

that the circumstantial evidence was sufficient to support Segida’s 

conviction. Segida II, 985 A.2d at 873, 879-80. The Court emphasized 

Segida’s admission that he had been drinking and was driving home when 

he lost control of the car; the odor of alcohol on Segida’s person; Segida’s 
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inability to complete sobriety tests; the extremely high level of alcohol in 

Segida’s blood; and the investigating officer’s testimony that, based on 

traffic conditions, it was unlikely that the accident had occurred more than 

ten minutes prior to his arrival. Id. at 880.

In this case, Appellant argues that there was insufficient evidence to 

prove that he was intoxicated at the time he drove his vehicle in 

Pennsylvania. He notes that, in contrast to the facts of Segida, there were 

no field sobriety tests performed here, he did not admit to consuming 

alcohol before driving, his BAC was lower than Segida’s, and he claimed to 

have consumed one beer after driving. Appellant’s Brief at 19. He also 

argues that “all of the evidence which was presented by the Commonwealth 

has to do with observations made by Trooper Waskiewicz at some time long 

after the alleged operation of the vehicle.” Id. at 20. 

Although the facts of this case differ from Segida in some respects, 

we hold that there was sufficient circumstantial evidence to support 

Appellant’s conviction. Notably, the Court in Segida II did not hold that 

every piece of evidence in that case is required in all other Subsection 

3802(a)(1) cases. Instead, the Court recognized that the proof in each case 

differs. See Segida II, 985 A.2d at 879 (Subsection 3802(a)(1) “does not 

limit the type of evidence that the Commonwealth can proffer to prove its 

case”). Here, Ayares testified that she saw Appellant driving erratically 

before he rear-ended her car at approximately 3:30 p.m. on Route 202 in 
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Delaware. She also testified that immediately after the accident, Appellant 

slurred his speech, swayed, and said “Yeah, I’m drunk.” After Ayares 

mentioned the police, Appellant fled the scene of the accident. See Trial Ct. 

Op. at 4; N.T. 12/17/15, at 9-23.2 When Trooper Waskiewicz spoke to 

Appellant at his house at around 5:20 p.m., Appellant told her that he had 

driven to his Pennsylvania home from Delaware after work that day by way 

of Route 202, arriving home between 4:21 and 4:36 p.m. Trooper 

Waskiewicz noticed that Appellant’s eyes were bloodshot and glassy, he 

smelled of alcohol, and he was swaying. When asked about the accident, 

Appellant became belligerent and loud. The PBT administered by Trooper

Gibson tested positive for alcohol. Subsequently, Appellant became very 

agitated and had to be physically restrained. See Trial Ct. Op. at 4; N.T. 

12/17/15, at 53-62, 69-70. Based on the above evidence, the trial court 

could find that Appellant was intoxicated to the point of being unable to 

safely operate his vehicle at the time he drove in Pennsylvania. 

The differences between this case and Segida do not undermine 

Appellant’s conviction. For example, unlike in Segida, there was no 

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2

 Appellant argues that Ayares’ testimony regarding his behavior in 

Delaware “is irrelevant with regard to any time driving in Pennsylvania.” 

Appellant’s Brief at 15. We disagree. Considering Appellant’s admission that 

he drove to his Pennsylvania home from Delaware by way of Route 202 and 

returned home approximately one hour after the accident, his conduct at the 

scene of the accident, immediately before he drove to his Pennsylvania 

home, is relevant circumstantial evidence.
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evidence in this case of failed sobriety tests. However, there was evidence 

that the reason sobriety tests were not performed was Appellant’s refusal to 

cooperate with the police. N.T. 12/15/17, at 57. Further, while Appellant 

argues that, unlike Segida, he did not admit to drinking before driving, he 

did say to Ayares “I’m drunk,” before getting in his car and driving from the 

scene of the accident to his home. Id. at 19. Although Appellant’s BAC was 

lower than Segida’s, Section 3802(a)(1) does not require any BAC evidence. 

See Segida II, 985 A.2d at 879. And although Appellant, unlike Segida, 

contended that he consumed alcohol after driving,3the trial court was not 

required to believe Appellant’s statement. See Commonwealth v. 

Mahaney, 540 A.2d 556, 559 (Pa. Super. 1988) (jury was aware of 

Mahaney’s contention that he became intoxicated after driving and was free 

to disbelieve it), appeal denied, 551 A.2d 214 (Pa. 1988). In sum, we hold 

that the circumstantial evidence in this case was sufficient to prove that 

Appellant drove in Pennsylvania while incapable of safely operating his 

vehicle due to alcohol consumption.

75 Pa.C.S. § 3802(b)

Appellant also claims that the evidence was insufficient to establish 

that he violated 75 Pa.C.S. § 3802(b), which provides:

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3

 Trooper Waskiewicz testified that Appellant first told her that he had not 

consumed any alcohol, and later changed his response. N.T. 12/17/15, at 

56. 
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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 alcohol concentration in the 

individual’s blood or breath is at least 0.10% but less than 

0.16% within two hours after the individual has driven, operated 

or been in actual physical control of the movement of the 

vehicle.

Proof of the alcohol concentration level normally requires that a blood test 

be taken within the two-hour period, but the statute provides the following 

exception:

Notwithstanding the provisions of subsection (a), (b), (c), (e) or 

(f), where alcohol or controlled substance concentration in an 

individual’s blood or breath is an element of the offense, 

evidence of such alcohol or controlled substance concentration 

more than two hours after the individual has driven, operated or 

been in actual physical control of the movement of the vehicle is 

sufficient to establish that element of the offense under the 

following circumstances:

(1) where the Commonwealth shows good cause 

explaining why the chemical test sample could not be 

obtained within two hours; and

(2) where the Commonwealth establishes that the 

individual did not imbibe any alcohol or utilize a controlled 

substance between the time the individual was arrested 

and the time the sample was obtained.

75 Pa.C.S. § 3802(g).

In Segida I, this Court held that the evidence was insufficient to 

establish a violation of 75 Pa.C.S. § 3802(c) (highest rate of alcohol)4 where 

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4

 Subsection 3802(c) is similar to Subsection 3802(b), except that it 

requires a BAC of 0.16% or greater within two hours of driving, rather than 

a BAC of at least 0.10% and less than 0.16%. 
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the Commonwealth did not establish the time when Segida’s blood was 

drawn or when he last drove his vehicle. See Segida I, 912 A.2d at 846. 

Our Segida I opinion did not address the Section 3802(g) “good cause” 

exception, however. Recently, we addressed the exception in 

Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super. 2016), appeal 

denied, No. 315 WAL 2016 (Pa. Nov. 22, 2016). In Eichler, the defendant 

hit a pedestrian while driving and then left the scene. Id. at 782. The 

accident occurred shortly before 6:00 p.m. Id. at 780-81. At the scene of 

the crash, the police were able to ascertain the color, make, and serial 

number of the vehicle involved, and they determined that Eichler, who lived 

nearby, owned the same type of vehicle. Id. at 781. Officers arrived at 

Eichler’s house less than ninety minutes after the accident and found him in 

a highly intoxicated state. Id. at 777. Eichler was transported to the 

hospital, where his blood was drawn at 8:12 p.m. Id. at 782. His BAC was 

0.30%. Id. at 791. We held that notwithstanding the more than two-hour 

span between the blood draw and the time Eichler last drove his car, there 

was sufficient evidence to support a conviction under 75 Pa.C.S. § 3802(c):

[T]he evidence satisfies the good cause exception under section 

3802(g), because [Eichler’s] flight from the accident scene, and 

the consequential delay in finding him, constituted good cause 

for the failure to obtain his blood test, and the Commonwealth 

demonstrated at trial that he did not imbibe alcohol between the 

time of his arrest and the time of the blood draw.

Id.
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In this case, Appellant argues that, as in Segida I, the evidence was 

insufficient to convict him because the Commonwealth did not prove either 

the time of operation of the vehicle or the time of the blood draw. 5 

Appellant’s Brief at 16. The Commonwealth responds that it did establish 

the required timeline, but concedes that Appellant’s blood was not drawn 

within the two-hour window. The Commonwealth contends instead that its 

proof was sufficient to satisfy the good cause exception in Section 3802(g). 

Appellee’s Brief at 21-24.6 

The trial court did not state whether it based Appellant’s conviction on 

a blood draw taken within two hours of Appellant’s driving under Section 

3802(b), or on the exception to the two-hour requirement in Section 

3802(g).7 Our review of the record makes clear, however, that the blood 

draw was not taken within two hours of Appellant’s driving and that the 

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5

 Appellant does not contest that his BAC was above 0.10%.

6 Remarkably, Appellant did not discuss Section 3802(g) in his brief and did 

not file a reply brief responding to the Commonwealth’s Section 3802(g) 

argument.

7 The trial court clearly considered Section 3802(g), and that provision was 

subject to extensive discussion during proceedings on Appellant’s post-trial 

motion. At the hearing on that motion, Appellant argued that the 

Commonwealth failed to satisfy Section 3802(b)’s two-hour requirement. 

N.T. 2/4/16, at 4. The Commonwealth responded by relying on the Section 

3802(g) exception. Id. at 11-12. Appellant contended that Section 3802(g) 

should not apply because he drank a beer after he drove home. Id. at 16. 

At the conclusion of the hearing, the trial court denied the post-trial motion, 

thereby rejecting Appellant’s arguments. 
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conviction therefore could not properly be based on compliance with the 

two-hour requirement. Instead, the conviction may be upheld only if the 

Commonwealth’s evidence was sufficient to prove the elements of Section 

3802(g). Based on our de novo review of the entire trial record, we 

conclude that the evidence was sufficient to satisfy those elements of 

Section 3802(g). 

Before reviewing the evidence, we note that the trial court’s failure to 

specify whether it convicted Appellant under Section 3802(b)’s two-hour 

requirement or Section 3802(g)’s exception to that requirement does not 

prevent us from making a sufficiency-of-the-evidence determination. 

Sufficiency of the evidence is a question of law, which we resolve de novo

regardless of the trial court’s specification of its legal theory. See 

Commonwealth v. Haughwout, 837 A.2d 480, 487 n.11 (Pa. Super. 

2003) (trial court’s failure to address issue in its opinion did not hamper 

appellate review because, in deciding issues of law, appellate court need not 

defer to conclusions of trial court); United Coal & Commodities Co. v. 

Hawley Fuel Coal, Inc., 525 A.2d 741, 743 (Pa. Super. 1987) (upholding 

jury verdict notwithstanding trial court opinion’s lack of discussion of 

question of law), appeal denied, 536 A.2d 1333 (Pa. 1987). Indeed, where 

the trial court does not issue a Pa. R.A.P. 1925(a) opinion explaining the 

reasons for its order, an appellate court may resolve questions of law 

without remanding for further explanation of the trial court’s ruling. Otte v. 
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Covington Township Road Supervisors, 650 A.2d 412, 414 (Pa. 1994); 

Commonwealth v. Hall, 867 A.2d 619, 640 (Pa. Super. 2005) (“even if the 

trial judge failed to provide a 1925(a) opinion we would still be within our 

rights not to order a remand” (citation and internal quotation marks 

omitted)), appeal denied, 895 A.2d 549 (Pa. 2006); Lemon v. 

Commonwealth Dep’t of Transp., 763 A.2d 534, 538 (Pa. Cmwlth. 2000) 

(stating remand unnecessary where “the record in this matter is sufficient 

for appellate review; all the issues raised are issues of law; and we may 

affirm if Common Pleas’ order can be upheld on any ground”). 8 We 

therefore are free to determine whether, as a matter of law, the evidence 

was sufficient to convict Appellant under either the two-hour requirement or 

the exception to that requirement.

The evidence did not establish that the blood draw was made within 

two hours of when Appellant last operated his vehicle, as required by Section 

3802(b). The trial found that Appellant last operated his vehicle at 

approximately 4:36 p.m. Trial Ct. Op. at 5. That finding was supported by 

Trooper Waskiewicz’s testimony that, at approximately 5:21 p.m., Appellant 

told her he had arrived at home 45 minutes earlier. N.T. 12/17/15, at 58-

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8 Although “a decision of the Commonwealth Court is not binding precedent 

upon this Court,” it can be considered persuasive authority. Holland v. 

Marcy, 817 A.2d 1082, 1083 n.1 (Pa. Super. 2002) (en banc), aff’d, 883 

A.2d 449 (Pa. 2005).
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59. 9 Appellant calls this testimony “hearsay,” but never argued it was 

inadmissible. Indeed, the statement fell within the exception to the rule 

against hearsay for statements by an opposing party. See Pa.R.E. 803(25). 

Appellant appears to argue that the trial court should not have believed 

Trooper Waskiewicz’s statement, but because the statement was properly 

admitted, it was for the factfinder to determine the weight it should be 

given. Commonwealth v. Stickle, 398 A.2d 957, 965 n.2 (Pa. 1979). 

Trooper Waskiewicz testified that the blood draw took place at 6:42 

p.m. N.T. 12/17/15, at 79. Appellant notes that this testimony was not 

mentioned in the trial court opinion and was not elicited by the 

Commonwealth, but rather was given during his attorney’s crossexamination of Trooper Waskiewicz. Appellant’s Brief at 14, 16. However, 

in reviewing the sufficiency of the evidence, we review the entire trial 

record. Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009), cert. 

denied, 562 U.S. 906 (2010). Thus, we are not limited to considering only 

the evidence specifically cited in the trial court’s opinion or elicited by the 

Commonwealth. See generally Commonwealth v. Nelson, 467 A.2d 

638, 641 (Pa. Super. 1983) (“we may affirm where our review, limited to the 

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9

 On cross-examination, Trooper Waskiewicz stated that Appellant said he 

returned home 45 minutes to one hour earlier. N.T. 12/17/15, at 69. The 

trial court apparently adopted the 45-minute estimate, which it was free to 

do. The result would not change if it adopted the one-hour estimate.
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trial record itself, discloses that the evidence is, in fact, sufficient”). In 

addition, Appellant calls the testimony regarding the time of the blood draw 

“vague.” Appellant’s Brief at 16. Based on our review of the testimony, we 

disagree with Appellant’s characterization and conclude that the trial court 

was free to rely on that testimony to establish the time of the blood draw.

The evidence thus established that the time between when Appellant 

last operated his car (4:36 p.m.) and when the blood draw occurred (6:42 

p.m.) was at least two hours and six minutes and, therefore, exceeded 

Section 3802(b)’s two-hour requirement. The conviction therefore may be 

affirmed only if the evidence presented at trial was sufficient to satisfy the 

exception in Section 3802(g). 

To meet the exception in Section 3802(g), the Commonwealth must 

establish two requirements. The first is that the Commonwealth had good 

cause for taking more than two hours to obtain the blood draw. 75 Pa.C.S. 

§ 3802(g)(1). Here, as in Eichler, the Commonwealth proved at trial that 

Appellant fled the scene of a car accident. N.T. 12/17/15, at 19-20. This 

flight, and the consequential delay in finding Appellant, provides good cause 

for the Commonwealth’s delay under Section 3802(g)(1). See Eichler, 133 

A.3d at 791. 

Section 3802(g)’s second requirement is “that the individual did not 

imbibe any alcohol or utilize a controlled substance between the time the 

individual was arrested and the time the sample was obtained.” 75 Pa.C.S. 
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§ 3802(g)(2). There was no evidence that Appellant imbibed alcohol after 

he was arrested, and Appellant has never made such a contention. At trial, 

the Commonwealth established that after Appellant was arrested, he was 

handcuffed, placed in the back of a patrol car, and driven to the hospital 

where his blood was drawn. N.T. 12/17/15, at 60-62. That evidence was 

sufficient to enable the trial court to find that Appellant was unable to 

consume alcohol during this time. See Goins, 867 A.2d at 527 (in 

reviewing the sufficiency of the evidence, this Court must view the evidence 

and all reasonable inferences in the light most favorable to the 

Commonwealth). The evidence therefore was sufficient to establish the 

second element of Section 3802(g).

Our review of the record therefore convinces us that the evidence was 

sufficient to satisfy the good cause exception in Section 3802(g), and, 

therefore, to prove a violation of 75 Pa.C.S. § 3802(b) on the basis of that 

exception. Accordingly, we reject Appellant’s insufficiency argument.

Weight of the Evidence

Based on the same arguments he made with respect to the sufficiency 

of the evidence, Appellant also claims that the verdict was contrary to the 

weight of the evidence. Because Appellant makes no separate argument to 

support his weight claims, those claims are arguably waived. See 

Commonwealth v. Birdseye, 637 A.2d 1036, 1039-40 (Pa. Super. 1994) 

(noting distinction between sufficiency and weight claims and deeming 
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weight claim waived for failure to present separate argument), aff'd, 670 

A.2d 1124 (Pa. 1996), cert. denied, 518 U.S. 1019 (1996). 

In any event, Appellant’s claims that the verdict was contrary to the 

weight of the evidence are meritless. A court may award a new trial 

because the verdict is against the weight of the evidence only when the 

verdict is so contrary to the evidence as to shock one’s sense of justice, such 

that “right must be given another opportunity to prevail.” Commonwealth 

v. Foster, 764 A.2d 1076, 1083 (Pa. Super. 2000), appeal denied, 782 

A.2d 542 (Pa. 2001). “The evidence must be so tenuous, vague and 

uncertain that the verdict shocks the conscience of the court.” 

Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004) (citation 

omitted), appeal denied, 889 A.2d 125 (Pa. 2005), cert. denied, 547 U.S. 

1045 (2006). In addition, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to make its own analysis of the 

evidence’s weight. “Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight claim.” 

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert. denied, 

541 U.S. 1045 (2004). After a thorough review of the record in this matter, 

we conclude that the trial court did not abuse its discretion in denying 

Appellant's motion for a new trial. We agree with the trial court that 

“[t]here is nothing in the record to support that the fact-finder’s verdict is so 
J-S84024-16

- 20 -

contrary to the evidence that it shocks one’s sense of justice.” Trial Ct. Op. 

at 7.

Accordingly, Appellant is not entitled to relief on his sufficiency and 

weight claims, and we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2016