J-A11009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK A. MURPHY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 661 WDA 2022

Appeal from the Judgment of Sentence Entered April 25, 2022

In the Court of Common Pleas of Allegheny County 

Criminal Division at No.: CP-02-CR-0006874-2020

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: JULY 17, 2023

Appellant, Mark Murphy, appeals from his judgment of sentence of six 

months’ probation for driving under the influence (“DUI”), general 

impairment, 75 Pa.C.S.A. § 3802. Appellant contends that the evidence was 

insufficient to sustain his conviction. We affirm. 

The arresting officer, Officer Corey Novak, a Pittsburgh police officer, 

was the Commonwealth’s lone witness during Appellant’s non-jury trial. The 

court also admitted video from a body camera worn by Officer Novak during 

his interaction with Appellant. 

The evidence adduced during trial shows that on August 1, 2020, Officer 

Novak responded to a report of a motor vehicle accident. The officer 

encountered Appellant at the accident scene. Appellant immediately admitted 

that the accident was his fault, stating he was not paying attention while 

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* Retired Senior Judge assigned to the Superior Court.
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talking with his sister when he nicked another car. Body Cam Video (BCV) at 

0:13-1:07. The officer stated that Appellant’s car had a flat tire. Id. at 1:09. 

The officer detected an odor of alcohol on Appellant’s breath and observed 

that Appellant was having trouble maintaining balance and standing still. N.T., 

3/23/22, at 7, 12. The officer asked whether Appellant had anything to drink 

that night, and Appellant responded that he had “a little bit,” which he then 

clarified as one beer, and he volunteered to “walk the line” if needed. BCV at 

3:24-3:41. 

Appellant walked to the passenger door of his car and opened it. The 

officer told him not to go into his car. Appellant became belligerent, prompting 

the officer to radio for another unit. Appellant defied the officer by opening 

the door a second time and ordering the person inside to get out. Id. at 3:56-

4:35.

A woman exited the vehicle, and the officer asked Appellant where he 

had been coming from. Instead of answering, Appellant asked what the officer 

meant and continued to act in a belligerent manner. Appellant denied that he 

was becoming aggressive when the officer asked why he was acting in such a 

manner. Id. at 5:01-5:25. The officer asked Appellant if he would perform 

field sobriety tests (“FST’s”). Appellant first refused, asked why he should do 

so, and then said he would perform them because he was not drunk. The 

officer explained to Appellant that he wanted him to do FST’s because 

Appellant had admitted he was drinking and had an accident. Appellant again 

said he did not want to perform FST’s, and when he asked what his options 
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were, the officer said he would take him for blood work. Id. at 5:33-6:06. 

When Appellant said he had no right, the officer stated that he could smell 

alcohol on Appellant’s breath. Appellant became further agitated and accused 

the officer of lying. The officer pointed out that Appellant was stumbling and 

not listening, so Appellant yelled that he was “cool” with taking a sobriety test. 

Id. at 6:14-6:49.

The officer said that he was going to begin by checking Appellant’s eyes 

and explained exactly what he was supposed to do, namely, follow the tip of 

the officer’s pen with only his eyes. Appellant continually moved his entire 

head despite the officer’s repeated instruction to only move his eyes. Id. at 

7:18-8:00. Proceeding to the next test, the officer noted that they were on a 

“slight hillside” and asked Appellant if he felt he could walk a straight line 

regardless of the slope. Appellant said he had “no doubt” that he could do so. 

Id. at 8:25-8:40. As the officer began to explain the walk-and-turn test, 

Appellant interrupted and questioned why he had to look at his feet. When 

the officer tried to explain that this was part of the test, Appellant became 

belligerent once more, swearing and accusing the officer of not providing an 

explanation. The officer then demonstrated exactly what he was to do, but 

Appellant failed to follow directions. Id. at 8:45-11:09.

As the officer attempted to describe the third test, the one-leg stand, 

Appellant began yelling that it was “bullshit” because he had already done 

what he was asked to do, ignoring the fact that there was another test. He 

continued to yell at the officer and use profanity. Id. at 11:10-12:14. The
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officer asked whether he was refusing to do the test. Appellant continued to 

yell that he had done everything he was asked, despite the officer’s statement 

that there were three tests. Id. at 12:15-12:29. As Appellant continued his 

tirade, the officer once again attempted to explain the final test. Appellant 

yelled even louder. Id. at 12:40-13:39. Officer Novak produced handcuffs. 

Appellant said that they could not arrest him and began flailing his arms and 

moving away as officers approached. 

While being transported to the station, Appellant made threats toward 

the officers and he subsequently refused the DL-26 form, so no blood work 

was performed. N.T., 3/22/22, at 8, 17-18. When asked whether he believed 

Appellant was capable of safe driving based on his experience, training and 

observations, the officer responded, “Absolutely not.” Id. at 8.

Appellant testified on his own behalf and claimed that on the date in 

question, he had picked his sister up from a get-together at their uncle’s house 

to give her a ride home to Northview Heights because she had been drinking. 

Contrary to what he had told Officer Novak, Appellant claimed that he only 

drank a half can of beer at his uncle’s house, but then his stomach started 

hurting. Id. at 21-22. According to Appellant, he and his sister had an 

argument in the car because he felt she had taken too many cans of beer from 

her uncle. He claimed that as they were turning into Northview Heights, he 

“might have been speeding just a little bit” because of the argument when he 

hit a pothole and got a flat tire, causing him to hit a parked car. Id. at 22-

24, 27.
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Appellant testified that when he got out of the car to assess the damage, 

“he talked to the guy in the booth, whose car it was, he came outside of the 

booth and he insisted to call the police.” Id. at 24. He stated that once police 

arrived and he was asked to perform FST’s, he felt it would be okay to do so 

since he “wasn’t...drunk or anything.” Id. When asked if he was affected by 

anything that would affect performance of the FST’s, Appellant claimed he had 

been getting treatment for a medical condition that could occur at any time, 

or when he has to move his bowels, which made him nauseous and dizzy. Id.

at 24-25. He alleged that during the incident, he started to get abdominal 

pain that made him nauseous, as well as “a little irritable.” Id. at 25-26. He 

also claimed that he was affected by arthritis in his knees and had trouble 

maintaining his balance when his feet were together because he was pigeontoed and flatfooted. Id. at 26. Appellant claimed he never thought to mention 

these conditions to the officer during the FST’s. Id. at 28-29. Appellant also 

offered a completed request form from June 2021 to fill a pothole at 200 

Penfort Street, which was near the area of the incident. Appellant also offered 

documents summarizing the medical condition about which Appellant had 

testified.

Following trial, the court found Appellant guilty of DUI. On April 25, 

2022, the court imposed sentence. Appellant filed a timely notice of appeal, 

and both Appellant and the court complied with Pa.R.A.P. 1925. Appellant 

raises a single issue in this appeal, “Whether the Commonwealth presented 
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sufficient evidence to prove the charge of driving under the influence beyond 

a reasonable doubt?” Appellant’s Brief at 7.

When reviewing a challenge to the sufficiency of the evidence, we 

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 the elements of the offense.” 

Commonwealth v. Cline, 177 A.3d 922, 925 (Pa. Super. 2017). “This 

standard is equally applicable to cases where the evidence is circumstantial

rather than direct so long as the combination of the evidence links the accused 

to the crime beyond a reasonable doubt.” Commonwealth v. Stokes, 78 

A.3d 644, 649 (Pa. Super. 2013). 

Section 3802(a)(1) of the Vehicle Code provides that “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.A. § 3802(a)(1). Section 

3802(a)(1) is an “at the time of driving” offense, i.e., an offense requiring 

proof that the defendant 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.” 

Section 3802(a)(1) permits multiple types of evidence to prove DUIgeneral impairment, including BAC evidence:
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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; 

demeanor, including toward the investigating officer; physical 

appearance, particularly bloodshot eyes and other physical signs 

of intoxication; odor of alcohol, and slurred speech. Blood alcohol 

level may be added to this list, although it is not necessary and 

the two hour time limit for measuring blood alcohol level does not 

apply. Blood alcohol level is admissible in a subsection 3801(a)(1) 

case only insofar as it is relevant to and probative of the accused’s 

ability to drive safely at the time he or she was driving. The weight 

to be assigned these various types of evidence presents a question 

for the fact-finder, who may rely on his or her experience, 

common sense, and/or expert testimony. Regardless of the type 

of evidence that the Commonwealth proffers to support its case, 

the focus of subsection 3802(a)(1) remains on the inability of the 

individual to drive safely due to consumption of alcohol—not on a 

particular blood alcohol level.

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

Construed in the light most favorable to the Commonwealth, the 

evidence demonstrates beyond a reasonable doubt that Appellant was 

intoxicated at the time he drove or operated his vehicle on August 1, 2020. 

Multiple details support the court’s determination of general impairment, 

including: (1) Appellant was involved in a motor vehicle accident in which his 

tire was blown; (2) upon arriving at the accident scene and meeting Appellant, 

Officer Novak detected an odor of alcohol on Appellant’s breath and observed 

that Appellant was having trouble maintaining balance and standing still; (3) 

Appellant admitted causing the accident and having “a little bit” to drink; (4) 

Appellant opened the passenger door to his car, even though the officer told 

him not to open it; (5) Appellant became belligerent when the officer told him 
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not to open the door, which required the officer to radio for backup; (6) 

Appellant accused the officer of lying when the officer said he smelled alcohol 

on Appellant’s breath; (7) Appellant failed to perform the first two FST’s 

properly in spite of the officer’s clear directions; (8) Appellant blamed the 

officer in profane terms for his poor performance on the FST’s; (9) Appellant 

refused to perform the third FST and began yelling even louder than before; 

(10) as officers approached him with handcuffs, Appellant waved his arms, 

attempted to move away, and protested that the police had no right to arrest 

him; (11) Appellant made threats to the police officers while being transported 

to the police station; and (12) Appellant refused to submit to a blood test. 

This evidence is similar to other decisions in which we have found the evidence 

sufficient to sustain convictions for DUI-general impairment. See 

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (evidence 

was sufficient to show substantial impairment under DUI-general impairment 

statute where defendant “failed four separate field sobriety tests, smelled of 

alcohol, and proceeded to coast through a stop sign despite a police officer 

being in plain view”); Commonwealth v. Smith, 904 A.2d 30, 39 (Pa. Super. 

2006) (evidence was sufficient to show substantial impairment where 

defendant “drove onto a grassy median, drove in the wrong lane of traffic, 

smelled of alcohol, was unsteady on her feet, was combative, failed the field 

sobriety tests, and refused a blood alcohol test”).
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Appellant testified that his behavior during the traffic stop resulted from 

an upset stomach and his argument with his sister. The court’s verdict 

demonstrates that it did not believe Appellant’s version of events and credited 

the Commonwealth’s evidence. Appellant’s brief is tantamount to a request 

that we accept his account of the events in place of the detailed evidence 

submitted by the Commonwealth. Such a request runs afoul of the wellsettled standard in sufficiency challenges that we accept the evidence in the 

light most favorable to the Commonwealth, the verdict winner. Viewed in this 

light, the facts that Appellant admitted causing an accident and drinking 

alcohol before the accident, the smell of alcohol on his person, his failure of 

two FST’s and refusal to complete the third, his escalating aggression and 

profanity-laden outbursts during a large portion of the encounter, his attempt 

to resist arrest, and the threats made to officers while being transported, and 

his refusal to undergo a blood test supports the court’s determination that

Appellant imbibed enough alcohol to render him incapable of safe driving. 

For these reasons, we reject Appellant’s challenge to the sufficiency of 

the evidence, and we affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2023