J-S26010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

LATHAN NICHELSON,

Appellant No. 1061 EDA 2017

Appeal from the Judgment of Sentence Entered February 28, 2017

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0006845-2015

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

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 16, 2018

Appellant, Lathan Nichelson, appeals from the judgment of sentence of 

five days’ to six months’ incarceration, and a $25 fine, imposed after he was 

convicted of driving under the influence of alcohol (hereinafter “DUI”), 75 

Pa.C.S. § 3802(a)(1), and restriction on alcoholic beverages (hereinafter 

“open containers”), 75 Pa.C.S. § 3809(a). After careful review, we affirm.

The trial court set forth a detailed summary of the facts and procedural 

history of Appellant’s case, as follows:

[Appellant] was charged with DUI as a misdemeanor of the 

first degree and summary [open containers] stemming from an 

arrest on June 7, 2015. The Commonwealth alleged that 

[Appellant] had driven to a parking lot under the influence where

he was found by police with vomit outside the car and an open 

bottle of beer in the center console area. The bills were amended 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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to add an additional DUI charge. On February 27, 2017, a jury 

trial began with Officer [Dustin] Wittmer, an eight[-]year veteran 

of the Abington Township Police Department. N.T. Trial[,]

2/27/17[,] [at] 112. Officer Wittmer had received training on 

standard field sobriety testing, the effects of alcohol on the body, 

and identifying signs of impairment. Id. at 113-14. Officer 

Wittmer had come into contact with between 300-500 individuals 

under the effects of alcohol and hundreds of people under the 

influence of marijuana. Id. at 114. On June 7, 2015, at 

approximately 2:54 AM, Officer Wittmer was on patrol, when his 

tour of duty took him to 1352 Easton Road which was the location 

of Tony’s Pizza, which sold bottles and cans of beer, and The Elbow 

Room, a bar. Id. at 114-15. There was a shared parking lot at 

that location. Id. at 116. The Elbow Room was open seven days 

a week, and Tony’s Pizza was open every weekend and most days 

of the week, but was occasionally closed Monday and Tuesday. 

Id. The parking lot is a traffic way open to the public that had 

two exits and entrances. Id. at 114-17. On this night, there was 

only one vehicle in the parking lot, a Ford F-150 with the 

headlights on and engine running. Id. at 117. The [o]fficer saw 

large amounts of vomit next to the driver’s side door, about 18-

30 inches away. Id. at 117-18, 126. Officer Wittmer approached 

the driver’s side and saw a small marijuana roach near the vomit. 

Id. at 122. A marijuana roach is a hollowed out cigar wrapper 

which is sometimes re-wrapped with marijuana and the roach is 

the end of that after it’s smoked. Id. at 122-23.

The [o]fficer saw [Appellant] sitting in the car with his head 

bent forward, all the windows rolled up, and the car locked. Id.

at 123. The [o]fficer shined his light into [Appellant’s] face, but 

[Appellant] didn’t react. Id. While walking around the vehicle, 

the [o]fficer noticed a Rolling Rock beer in a half rolled down 

brown paper bag inside the center console of the truck. Id.

Officer Wittmer could see the label and felt the brown paper bag

indicated that the bottle came from Tony’s Pizza Shop. Id. at 126. 

Officer Wittmer said [Appellant] was sitting upright in the seat and 

appeared to be under the influence of alcohol, and was incoherent. 

Id. Officer Wittmer testified that the car had a rear bench seat 

and the front seats could recline. Id. at 125. The [o]fficer 

testified that the car was still running, keys in the ignition, and 

the headlights were on. Id. Officer [James] Ficzko arrived on 

scene with Officer Wittmer, and was present when he approached 

the vehicle. Id. at 126. Officer Wittmer pounded on the window 

to wake [Appellant] as the vehicle was locked, and it took multiple 
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attempts to wake him up. Id. at 127. When the [o]fficers were 

finally able to rouse [Appellant], he appeared to be unaware of

who was outside the car, just stared, and took around 15 seconds 

to realize the police were knocking on his window. Id. at 127-28. 

When [Appellant] opened the door, the [o]fficer was “immediately 

hit with a strong odor of freshly smoked marijuana coming straight 

from the vehicle.” Id. at 128. The [o]fficer said fresh marijuana 

has a “more botanical” smell and freshly smoked marijuana smells 

burnt. Id. The smell of freshly burnt marijuana signified to the 

[o]fficer that marijuana was recently smoked inside the vehicle. 

Id. When Officer Wittmer began to speak to [Appellant], he noted 

a smell of alcohol on [Appellant’s] breath. Id. at 129. [Appellant]

needed to hold onto the vehicle when he exited, and the [o]fficer

never saw a cane in the car and [Appellant] never indicated he 

had balance or medical issues. Id. At no point in the encounter 

did [Appellant] use a cane or indicate that he needed assistance 

or a wheelchair. Id. In the parking lot, [Appellant] was having 

trouble with his balance, and needed to hold onto the car the 

whole time. Id. at 130-31.

[Appellant’s] eyes were glassy, his speech was slurred, and 

when asked if he had consumed alcohol that evening [Appellant]

said he had. Id. at 131-32. [Appellant] denied marijuana use. 

Id. at 132. Officer Wittmer asked [Appellant] to perform a field 

sobriety test. Id. at 133. [Appellant] never indicated that he was 

physically unable to perform the tests, or that he had medical 

conditions [that] would affect his ability to perform the tests. Id.

at 134. The field sobriety tests were done in the parking lot, on 

the large flat open black top area. Id. at 134-35. The first field 

sobriety test conducted was the nine step walk and turn test which 

the [o]fficer explained and demonstrated to [Appellant]. Id. at 

136-38. [Appellant] was unable to keep his balance during the 

instructional phase, he did not step heel to toe as required, and 

[Appellant] only took 9 steps and failed to turn and do the final 9 

steps. Id. at 138-39. [Appellant] also failed to stay on the line. 

Id. at 138-39. The [o]fficer believed this was indicative of signs 

of impairment. Id. at 139. [Appellant] was next told to do a oneleg stand test[,] which Officer Wittmer explained and 

demonstrated for [Appellant]. Id. at 139-40. The test is

supposed to last for 30 seconds, but [Appellant] put his foot down 

after 5 seconds and[,] besides failing to complete the test, 

[Appellant] was swaying and unbalanced. Id. at 141. The 

[o]fficer then asked [Appellant] for a portable breath test, but

[Appellant] refused to blow into the test as demonstrated. Id. at 
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142. He continued to turn his head away, and would not speak. 

Id. [Appellant] was given multiple opportunities to take the test. 

Id. [Appellant] was placed into custody, and the [o]fficer went to 

retrieve the marijuana roach but the bottom was soaked in vomit, 

so the [o]fficer dropped it and destroyed it. Id. at 144. The 

destruction of the marijuana roach was consistent with 

department policy when evidence is contaminated. Id. The 

Rolling Rock beer bottle was half consumed, and the [o]fficer

poured out the rest and destroyed it on scene consistent with 

department policy because there is no safe way to transport an 

open container of alcohol. Id. at 144. No photographs of the 

evidence were taken because the [o]fficer did not have a camera. 

Id. The dash cam was not activated during the encounter, and 

the recording from the transport to the hospital showed nothing 

as [Appellant] did not speak or do anything. Id. at 147-48.

At the hospital, the [o]fficer provided a form requesting 

[Appellant] submit to a chemical test, and informing [Appellant]

that the refusal to submit to the chemical test will result in a 12 

month suspension of operating privileges. Id. at 150. The form 

also stated that [Appellant] had no right to speak to an attorney 

or anyone else before deciding whether to submit to the test and 

a request to speak to anyone or remaining silen[t] would be 

deemed a refusal. Id. [Appellant] ignored the [o]fficer who 

continued to explain the test. Id. at 151. [Appellant] didn’t 

submit to a blood test after being read the warnings, and the 

[o]fficer deemed it a refusal. Id. at 152. [Appellant] was brought 

home to his wife, around an hour after the [o]fficer first

encountered [Appellant]. Id. Based on his training and 

experience, Officer Wittmer believed [Appellant] was incapable of 

safe driving. Id.

On cross, Officer Wittmer testified that it is possible to edit 

the reports he generates, but that he was out of work for 10 

months following a serious car accident. Therefore, he could have

updated his report in the Fall of 2017 when he returned, but not 

before. Id. at 161-63. Nowhere in the [o]fficer’s report or 

affidavit is there a mention of the headlights being on or that 

[Appellant] was sitting upright. Id. at 165-66. The report also 

didn’t say every word was slurred, the [o]fficer just wrote[,] “he 

slurred his words,” and it doesn’t say the marijuana smel[led]

freshly burnt, just that the marijuana smel[led] burnt. Id. The 

report also doesn’t mention the [o]fficer[’s] asking [Appellant] if 

he had any physical conditions that would impair his ability to 

perform the tests. Id. at 166-67. The [o]fficer stated that his 
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training indicates to check for medical conditions, but that he does 

not indicate his instructional phase in his report. Id. at 167. The 

[o]fficer also indicated that the bottle of beer could have come 

from anywhere. Id. at 176. The [d]efense asked if the [o]fficer

could have taken pictures with his cell phone, but he said that is 

not policy as the cell phone itself would become evidence. Id. at 

178-79. The [o]fficer said he was one hundred percent certain 

[Appellant’s] headlights were on, his seat was in the upright 

position, and [Appellant] was passed out. Id. at 179. The 

[o]fficer also stated the even without the field sobriety tests, he 

felt there was enough evidence to feel [Appellant] was incapable 

of safe driving based on his training and experience. Id. at 181.

Officer Ficzko then testified to being employed with the 

Abington Police Department for almost 8 years. Id. at 188. 

Officer Ficzko had standard field sobriety testing training as well 

as [Advanced Roadside Impairment] training.... Id. at 189. Officer 

Ficzko is also familiar with the effects of drugs and alcohol. Id. at 

190. Officer Ficzko responded as back up to Officer Wittmer, and 

saw [Appellant] in the driver’s seat, with the keys in the ignition 

and engine running. Id. at 191-92. Officer Ficzko also saw an 

open container in the center console. Id. at 192. Officer Ficzko 

also observed that [Appellant’s] speech was slurred, there was an 

odor of alcohol from [Appellant], and a burnt marijuana smell 

coming from the vehicle and clothing. Id. at 192-93. Officer 

Ficzko said the smell indicated to him recent use of marijuana in 

the vehicle. Id. at 193. The [o]fficer also noted a puddle of vomit 

and remnants of a burnt marijuana cigarette outside the car. Id.

Based on his training and experience, Officer Ficzko believed that

[Appellant] was unable to safely operate a motor vehicle at that 

time based on his observations of [Appellant]. Id. at 193-94.

The Defense called Mary Nichelson to testify. She had been 

married to [Appellant] for 40 years. Id. at 199. Mrs. Nichelson 

testified that her husband has a broken ankle, knee problems, and 

back problems. Id. at 200. The back problems stemmed from 

2006 when he had a fractured pelvis and knee issues from an 

accident. Id. at 200-01. She testified that [Appellant] uses a

cane from “time to time.” Id. at 201. Mrs. Nichelson also testified 

that without a cane the [Appellant] has balance problems. Id.

She testified that [Appellant] has Post Traumatic Stress Disorder, 

and when [Appellant] gets mad he starts to scream and then 

leaves. Id. at 201-02. He will often sit in his truck and listen to 

music. Id. at 203. The truck will be running, but the lights will 

be off. Id. She testified that when he is angry he sometimes 
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won’t talk or follow commands. Id. at 204. Mrs. Nichelson also 

testified that her husband is a deep sleeper and hard to wake. Id. 

Mrs. Nichelson testified that she was at her cousin’s house on the 

night before the arrest, and [Appellant] was there from 5:30-8:30 

PM. Id. at 207. She didn’t see [Appellant] again until the police 

brought him home. Id. at 207-08. She said when he was brought 

home she didn’t think he smelled of marijuana and she didn’t think 

he was under the influence. Id. at 208. When Mrs. Nichelson 

went to recover the vehicle she didn’t see vomit, and she didn’t 

think the car smelled of marijuana. Id. at 210. However, it was 

important for her husband to keep his commercial driver’s license 

because that is what he does for a living. Id. at 211-12.

[Appellant] testified that he is an over-the-road trucker, and 

works long hours. N.T. Trial[,] 2/28/17[,] [at] 8. He often sleeps 

in his truck while it’s running. Id. [Appellant] testified to mental 

health issues[,] which lead him to want to be alone, so he goes to 

his truck to sleep or rest. Id. at 11. If people engage with him, 

[Appellant] said he gets angry. Id. [Appellant] also said he was 

under a doctor’s care for a “bad ankle, bad knee, and a bad back.” 

Id. On the day before he was arrested, [Appellant] had been in 

Illinois and drove to his cousin’s house. Id. at 13. [Appellant]

denied drinking. Id. After his cousin’s house, he went to The 

Elbow Lounge Bar and claimed he only drank tonic and lime until 

the end of the night where he had “one glass of beer” which 

[Appellant] said he didn’t finish. Id. at 14. [Appellant] said he 

got agitated so he parked in the back to take a nap, and claimed 

he reclined his seat. Id. at 15-16. [Appellant] denied buying a 

bottle of beer or one being in his truck. Id. at 17. [Appellant]

claimed that when the police woke him up he wasn’t all there 

because he had been in a deep sleep. Id. at 18. [Appellant] also 

claimed that when asked to do field sobriety tests, he told the

officer about his bad ankle, knees, and back. Id. at 19. He 

claim[ed that] despite this, the police had him perform field 

sobriety tests, that he had a cane in his truck, and the police didn’t 

let him retrieve it. Id. at 19. [Appellant] also denied seeing vomit 

outside his car or smoking marijuana. Id. at 20. [Appellant]

claimed he didn’t do anything the [o]fficer asked because “I just 

felt that he was going to stick me with a DUI no matter what I

said or did.” Id. He said he didn’t give a blood test because he 

didn’t think he did anything wrong and just “shutdown.” Id. at 

21. On cross, [Appellant] denied being offered a portable breath 

test, and agreed that his physical issues didn’t prevent him from 

giving a blood sample. Id. at 23-24.
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On February 28, 2017, a jury found [Appellant] guilty of 

DUI-general impairment and not guilty of DUI-impaired ability. 

This [c]ourt found [Appellant] guilty of the summary [open 

containers] charge. On the same day, [Appellant] was sentenced 

to five days to six months of incarceration for the DUI charge and 

given a $25 fine for the summary offense. On March 24, 2017, 

[Appellant] filed a timely notice of appeal.

Trial Court Opinion (TCO), 5/22/17, at 1-8 (footnote omitted).

The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal, and Appellant timely complied. 

Herein, he presents three questions for our review:

1. Whether the trial court erred in denying Appellant’s request for 

individual voir dire[?]

2. Whether the trial court erred in allowing evidence of the 

refusal[?]

3. Whether the evidence was insufficient as a matter of law for a 

DUI conviction and for the summary charge of open containers 

conviction[?]

Appellant’s Brief at 7.

In Appellant’s first issue, he challenges the trial court’s refusal to 

individually voir dire prospective jurors about their responses to a certain 

question (hereinafter, “Question 15”) asked by the court when it examined 

the jury pool collectively. Specifically, the court questioned the prospective 

jurors all together, as follows:

[The Court]: Is there anyone here who himself or herself has been 

a victim of a crime or who has had a family member who has been 

a victim of a crime? Raise your card if that applies to you. And 

I’ll have a backup question to this one. [The numbers of the 

prospective jurors who are raising cards are] 3, 12, 13, 23, 24, 

25. [Number] 16, I have you. 27, 19, 10, 20, 39, 38, 47 and 44. 

All right.
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Of all those that raised their card, and there were many on 

that question about being a victim or has had a family member 

[who has been] a victim of a crime, this case obviously deals with 

two counts of DUI, so you know generally what this case is about.

If that question about being a victim or a family member 

being a victim of a crime, if you believe that given the very limited 

facts of this case would impair your ability to be fair and impartial, 

I need you to be honest with me, then re-raise your card of those 

who raised their card before. All right. I see no one who has reraised their card.

N.T. Trial, 2/27/17, at 15-16.

After this collective questioning of the jury pool, defense counsel 

requested individual voir dire regarding some of the questions, including 

Question 15. The court denied that request regarding Question 15, but it did

grant defense counsel’s request pertaining to other questions, including 

Question 8. That question asked the jurors if they “would either accept or 

reject the testimony of a police officer merely because that witness happens 

to be a police officer[.]” Id. at 14. None of the jury panel raised their hands 

to Question 8. Id. However, 15 of them had answered “yes” to that same 

question on a confidential juror information questionnaire filled out prior to 

voir dire. See id. at 24. Based on this inconsistency, the court granted 

defense counsel’s request to individually voir dire the 15 prospective jurors 

who had answered “yes” to Question 8 on the written questionnaire. Through 

those examinations, several of the jurors were stricken for cause after they 

made statements indicating they may be biased in favor of police officers. 

Appellant now contends that, because some of the prospective jurors 

did not honestly answer Question 8 during the trial court’s collective voir dire, 
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it demonstrates that the prospective jurors were likely also dishonest in 

answering Question 15, and the court should have individually examined the 

jurors on that question. He further maintains that the jury panel’s hesitation 

to answer truthfully during the collective voir dire was because

the trial court made comments before the entire panel that 

expressly indicated it would be bad if any of them indicated they 

could not be fair. (N.T. [Trial, 2/27/17, at] 24). Thus, no one 

raised their hand when the trial court asked if, in light of their 

responses to questions #8 ... and #15, it would affect their ability 

to be fair and impartial. The words of the trial court had a severe 

chilling effect on the jurors[’] comfort level in freely expressing 

and communicating their beliefs. Thus, many who responded in a 

biased manner on their questionnaires in the comfort of their 

homes, failed to respond after the trial court commented it would 

be bad to express their bias when asked the same questions in 

the courtroom. The trial court[’s] comment caused them to 

become timid, and they did not raise their hands. Thus[,] defense 

counsel observed their uneasiness first hand, and surmised there

was a strong likelihood that the jurors were not being truthful or 

that they were uncomfortable discussing their true feelings in 

open court.

Appellant’s Brief at 15-16.

Notably, at no point does Appellant explicitly state what improper 

comment the trial court made that allegedly caused ‘uneasiness’ in the 

prospective jurors’ minds and compelled them not to answer honestly, despite 

being under oath during the collective examination. The only portion of the 

record cited by Appellant in support of this argument is a discussion between 

the trial court and the parties, outside the hearing of the jury. See id. at 15 

(citing N.T. Trial, 2/27/17, at 24). Because Appellant does not identify where 

in the record the court allegedly made an improper comment, or even state 
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in his appellate brief what that comment was, he has waived his argument 

that this ostensible tainting of the jury pool required individual voir dire on 

Question 15. 

We also disagree with Appellant that the individual voir dire of 

prospective jurors on Question 8 demonstrates that the court should have also 

conducted individual examinations regarding Question 15. There was a clear 

inconsistency between the prospective jurors’ answers of Question 8 on the 

written questionnaire and their responses during the collective voir dire. The 

same is not true for Question 15; multiple prospective jurors raised their cards 

during the collective voir dire indicating that they, or a family member, had 

been the victim of a crime. Appellant does not claim that those answers were 

inconsistent with the written questionnaires. Additionally, unlike with 

Question 8, the court followed the collective voir dire on Question 15 with a 

second question about whether those prospective jurors believed that they 

would not be able to be fair and impartial based on their, or their family 

member’s, victimization. See N.T. Trial, 2/27/17, at 15. The court specifically 

directed the jury pool “to be honest with [the court]” and to raise their card if 

they questioned their ability to be impartial and fair on this basis. Id. at 16. 

No prospective juror raised a card. Therefore, unlike with Question 8, there 

was no facial inconsistency or ‘red flags’ in the prospective jurors’ responses 

during the collective voir dire on Question 15. Consequently, Appellant has 

not demonstrated that the trial court abused its discretion by not conducting 
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an individual examination of the jury pool regarding that question.1 See 

Commonwealth v. Howard, 375 A.2d 79, 82 (Pa. Super. 1977) (stating 

that, in all non-capital cases, the decision to permit defense counsel to conduct 

individual voir dire of prospective jurors “is a matter resting within the sound 

discretion of the trial judge”) (citation omitted).

Appellant next contends that the trial court erred by allowing the 

Commonwealth to admit evidence, as proof of his consciousness of guilt, that 

he refused to submit to a breathalyzer test and a warrantless blood draw. 

First, Appellant argues that his refusal of the breath test should not have been 

admitted because he contested that he was even asked to submit to such a 

test. Second, regarding his refusal of a warrantless blood test, Appellant 

maintains that this evidence was inadmissible under Birchfield v. North 

Dakota, 136 S.Ct. 2160 (2016), where the United States Supreme Court held 

____________________________________________

1 We also stress that Appellant at no point clarifies whether any of the 15 

prospective jurors who indicated, during the collective examination, that they 

or a family member had been the victim of a crime, were actually chosen to 

be part of the final jury. The trial court points out that “the jury [was] selected 

from jurors 1-32 and the alternates would be chosen from 33-36[,]” meaning 

that 4 of the 15 who answered “yes” to Question 15 during the collective voir 

dire did not end up on the jury panel (i.e., jurors number 38, 39, 44, and 47). 

TCO at 10. Additionally, the record indicates that jurors 3, 12, 13, 23 were 

stricken for cause for other reasons. See N.T. Trial, 2/27/17, at 40, 48, 51, 

65. Appellant does not specify who, if any, of the remaining 7 jurors that 

indicated that they, or a family member, had been the victim of a crime were 

ultimately empaneled. Therefore, we would alternatively conclude that he has 

not established that he was tried by a biased jury and, thus, reversal is not 

required in this case. See Commonwealth v. Hoffman, 398 A.2d 658, 660 

(Pa. Super. 1979) (“The purpose of examining jurors under voir dire is to 

secure a competent, fair, impartial and unprejudiced jury.”).
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“that motorists cannot be deemed to have consented to submit to a blood test 

on pain of committing a criminal offense.” Id. at 2186. According to 

Appellant, the introduction of the evidence that he refused the blood draw 

constituted a ‘criminal penalty’ of the type prohibited by the holding of 

Birchfield. Appellant also complains that the trial court should not have 

issued a consciousness-of-guilt jury instruction regarding his refusal of both 

the breath and blood tests.

Initially, we conclude that Appellant has waived these challenges for our 

review. Prior to trial, the Commonwealth filed a motion in limine seeking to 

introduce the evidence that Appellant had refused to submit to the blood test. 

Appellant did not file a responsive motion. Additionally, he does not point to 

- and we cannot locate - where in the record he lodged any objection to the 

admission of this evidence, or to the admission of the evidence that he refused 

to submit to a breathalyzer. See , e.g., N.T. Trial, 2/27/17, at 149-52 (Officer 

Wittmer’s testifying, without objection by Appellant, that he read Appellant 

the DL-26 chemical test warnings, after which Appellant refused to submit to 

a blood test); Id. at 142 (Officer Wittmer’s testifying, without objection by 

Appellant, that Appellant refused to take a breathalyzer test). Likewise, 

Appellant does not cite to where he objected to the trial court’s issuance of

the consciousness-of-guilt jury instruction, and we see no such objection 

before, during, or after the jury charge was given. See N.T. Trial, 2/28/17, 

at 67 (the court’s instructing the jury on consciousness of guilt regarding 

Appellant’s refusal of the breath and blood tests without objection by 
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Appellant). Because Appellant does not point to where he preserved these 

evidentiary and jury instruction challenges at trial, we deem them waived for 

our review. Commonwealth v. Boyd, 679 A.2d 1284, 1289 (Pa. Super. 

1996) (“In order to preserve for appellate review any claim of error regarding 

the admission of evidence, a party must specifically object to the admission 

of such evidence at trial. Failure to do so results in a waiver of that claim of 

error in the evidence’s admission.”) (citation omitted); Pa.R.Crim.P. 647(C) 

(“No portions of the charge nor omissions from the charge may be assigned 

as errors, unless specific objections are made hereto before the jury retires to 

deliberate. All such objections shall be made beyond the hearing of the 

jury.”).

Notwithstanding Appellant’s waiver of these claims, we would deem 

them meritless. First, in regard to the admission of Appellant’s refusal of the 

blood test, we rely on this Court’s recent decision in Commonwealth v. Bell, 

67 A.3d 744 (Pa. Super. 2017), appeal granted, 183 A.3d 978 (Pa. 2018)

(holding that evidence that Bell refused a blood test was admissible under 

Birchfield as an evidentiary consequence of his decision to refuse to submit 

to that test).2 Appellant does not even acknowledge Bell, let alone make any 

attempt to distinguish our holding in that case from his argument herein. 

____________________________________________

2 We recognize that our decision in Bell is currently under review by our 

Supreme Court. However, until the Court issues a ruling on Bell, it remains 

binding precedent on this Court. See Marks v. Nationwide Ins. Co., 762 

A.2d 1098, 1101 (Pa. Super. 2000) (citing Sorber v. American Motorists 

Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996)).
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Consequently, we would conclude that the court did not abuse its discretion

in admitting the evidence that he refused the warrantless blood draw. See 

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) 

(recognizing that questions concerning the admissibility of evidence lie within 

the sound discretion of the trial court, and a reviewing court will not reverse 

the trial court’s decision absent a clear abuse of discretion) (citation omitted). 

We would also discern no abuse of discretion in the court’s decision to 

admit the evidence that Appellant refused the breathalyzer test. Officer 

Wittmer testified that he asked Appellant “to perform [the test] multiple 

times” but “[h]e continued to refuse by turning his head away from [the 

[o]fficer] and just not speaking to [the officer] at all.” N.T. Trial, 2/27/17, at 

142. Simply because Appellant contested the fact that the officer asked him 

to take a breathalyzer test did not render inadmissible the officer’s testimony 

that Appellant refused the test. Additionally, because we would conclude that 

the court did not err in admitting the evidence that Appellant refused both the 

breath and blood tests, we would also reject his challenge to the court’s 

consciousness-of-guilt instruction regarding those refusals.

In his third and final issue, Appellant claims that the evidence was 

insufficient to sustain his DUI and open containers convictions. 

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 
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finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

Here, Appellant was convicted of DUI under 75 Pa.C.S. § 3802(a)(1), 

which reads:

(a) General impairment.--

(1) 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 first avers that the Commonwealth failed to prove that he 

operated, or was in actual physical control of the movement of his vehicle, 

where the officers found him “in such a deep sleep that shining a light on his 

face provoked no reaction.” Appellant’s Brief at 43. In rejecting this 

sufficiency argument, the trial court reasoned that Appellant’s own testimony 

demonstrated that he drove the car while intoxicated, as Appellant stated: “I 

left the bar so I don’t [sic] get myself in trouble; got in my truck; went 

around and parked in the back and just said I would take a nap because I 

was tired anyway.” N.T. Trial, 2/28/17, at 16 (emphasis added); see also 

TCO at 17-18. We agree with the trial court. Appellant’s testimony, along 

with the evidence of his intoxication - i.e., the smell of alcohol on his breath

and burnt marijuana in his car, the vomit and marijuana “roach” found outside 

the door to his vehicle, his failing the field sobriety tests, and his refusal to 
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submit to a breath or blood test - were sufficient to prove that Appellant 

operated his vehicle while intoxicated to a point that he could not safely do 

so.3

Appellant also argues that his DUI conviction cannot stand because he 

was not driving his vehicle on a highway or trafficway. As this Court has 

recognized, DUI 

is defined in the vehicle code as a ‘Serious Traffic Offense.’ A 

Serious Traffic Offense, according to 75 Pa.C.S.[] § 3101, must 

be committed on a highway or trafficway. A highway is defined 

as[,]

the entire width between the boundary lines of every way 

publicly maintained when any part thereof is open to the use 

of the public for purposes of vehicular travel. The term 

includes a roadway open to the use of the public for 

vehicular travel on grounds of a college or university or 

public or private school or public or historical park.

75 Pa.C.S.[] § 102.

____________________________________________

3 Moreover, we reject Appellant’s contention that the trial court erroneously 

instructed the jury that it could convict Appellant of DUI if it found that he 

posed a ‘threat’ of driving. Appellant’s Brief at 46. In the portion of the charge 

cited by Appellant, the court stated: “These terms are broader than the term 

drive because the law is concerned with the threat to public safety for 

motorists who have a present intention of driving a vehicle immediately within 

their control, as well as those who actually do drive while they are under the 

influence.” N.T. Trial, 2/28/17, at 65 (emphasis added). Initially, at no point 

did Appellant object to this portion of the jury charge, and he cites no legal 

authority to support his claim that he did “not have to object to a patently 

false instruction....” Appellant’s Brief at 46. Consequently, we deem this claim 

waived. See Pa.R.Crim.P. 647(C). In any event, it is apparent that the court 

used the word “threat” not to refer to the chance that Appellant might drive 

his vehicle, but in regard to the public safety concerns on which the DUI 

statute is premised. Accordingly, we would deem Appellant’s challenge to this 

instruction meritless, even if preserved.
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A trafficway is defined as[,]

the entire width between property lines or other boundary 

lines of every way or place of which any part is open to the 

public for purposes of vehicular travel as a matter of right 

or custom.

75 Pa.C.S.[] § 102.

Commonwealth v. Wilson, 553 A.2d 452, 453 (Pa. Super. 1989).

Here, Appellant avers that he “was in a private parking lot, not on a 

highway. Moreover, the vehicle was not on a traffic way [sic] and was in fact 

on private property.” Appellant’s Brief at 4. Appellant maintains that, “[t]he 

case law on whether a private parking lot constitutes a public parking space

is far from settled.” Id. In support, he cites Commonwealth v. Owen, 580 

A.2d 412 (Pa. Super. 1990), and Commonwealth v. McFadden, 547 A.2d 

774 (Pa. Super. 1988). 

In Owen, we held that the defendant’s being stopped “in the Nittany 

Silver Parking Lot in University Park, Centre County, Pennsylvania[,]” did not 

support his DUI conviction, where the Commonwealth “presented ... no 

competent evidence concerning the nature of the parking lot where [Owen] 

was stopped by police.” Owen, 580 A.2d at 413, 414 (emphasis in original). 

Specifically, there was no evidence demonstrating, or stipulation by the 

parties conceding, that “the parking lot was open to the public....” Id. at 415. 

In McFadden (which we note was a plurality decision and, thus, is not 

binding precedent, see Wilson, 553 A.2d at 454), we reversed McFadden’s

DUI conviction where he was accused of driving while intoxicated on a private 

drive in a trailer court. McFadden, 547 A.2d at 775. Because “the 
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Commonwealth failed to adduce any evidence upon which the jury could have 

based a conclusion that the road was customarily open to vehicular traffic[,]” 

aside from residents and guests of the trailer court, we held that McFadden 

did not drive on a highway or trafficway as required by the DUI statute. Id. 

at 776.

The present case is clearly distinguishable from Owen and McFadden. 

Here, the Commonwealth presented evidence that the parking lot in which 

Appellant’s vehicle was driven was owned by The Elbow Room and Tony’s 

Pizza, both of which are businesses that are open to the public. See N.T. 

Trial, 2/27/17, at 115-16. Public patrons of those businesses, such as 

Appellant, regularly use that parking lot. Id. at 116. We agree with the trial 

court that “[t]he parking lot here is similar to [a] parking lot of a mall that is 

open to the public for shopping.” TCO at 18. This Court has held that such a 

public parking lot is a ‘trafficway’ for purposes of the DUI statute. See

Commonwealth v. Proctor, 625 A.2d 1221, 1224 (Pa. Super. 1993) 

(holding that because “the evidence established that [the] appellant drove in 

a parking lot of a mall that is open to the public for shopping[,] ... there was 

sufficient evidence for the jury to conclude that the parking area was a 

trafficway”). See also Wilson, 553 A.2d at 453-54 (concluding that the 

parking lot of an Elks Club is open to the public and, therefore, is a trafficway 

for purposes of the DUI statute). Accordingly, Appellant’s challenge to the 

sufficiency of the evidence to support his DUI conviction is meritless.
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Regarding the sufficiency of the evidence to support his open containers

conviction, Appellant has waived this claim for our review. Other than setting 

forth the statute defining that offense, Appellant’s entire argument regarding 

why the evidence was insufficient to prove the open containers charge 

amounts to the following sentence: “Appellant, asleep in his pick-up truck in 

a parking lot[,] does not meet the definition of a highway.” Appellant’s Brief 

at 50. Appellant’s underdeveloped and legally unsupported argument is 

insufficient to permit this Court to meaningfully review his claim.4 Therefore, 

Appellant’s challenge to this conviction is waived. See Commonwealth v. 

Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various 

issues that have been preserved, it is an appellant’s duty to present 

arguments that are sufficiently developed for our review. ... [W]hen defects 

in a brief impede our ability to conduct meaningful appellate review, we may 

dismiss the appeal entirely or find certain issues to be waived.”).

Judgment of sentence affirmed.

____________________________________________

4

It is particularly troubling that Appellant offers no counter to the trial court’s 

determination that the evidence was sufficient because, 

[Appellant] testified that he did not buy the beer bottle at Tony’s 

Pizza. [See N.T. Trial, 2/28/17, at 17.] Therefore, the only way 

for the beer bottle to be inside [Appellant’s] truck was if he bought 

it before driving to the Elbow Lounge/Tony’s Pizza parking lot. 

[Appellant’s] own testimony circumstantially establishes that 

[Appellant] drove with the open container of beer on a highway to 

the parking lot....

TCO at 19.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/18