J-S62010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEATLH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

RANDY SCOTT GLASS

Appellant No. 317 MDA 2017

Appeal from the Judgment of Sentence entered January 17, 2017

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-000-2191-2016

BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2017

Appellant, Randy Scott Glass, appeals from the January 17, 2017 

judgment of sentence imposing six months of probation plus fines and court 

costs for driving under the influence of alcohol and driving with an open 

alcoholic beverage container.1 We affirm. 

The trial court’s opinion sets forth the pertinent facts: 

In the instant case, witness James McMahan, testified that 

[Appellant] appeared at the door of Mr. McMahan’s residence on 

April 9, 2016, at approximately 7:30 p.m. with bloodshot, red 

eyes. After speaking with [Appellant] and directing him to leave 

the property, Mr. McMahan contacted the police. Officer Troy 

Rogers and Officer Phillip Eck of the Manor Township Police 

testified that they received a dispatch to Mr. McMahan’s property 

at approximately 7:34 p.m. on April 9, 2016 and arrived at the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 75 Pa.C.S.A. §§ 3802(a)(1) and 3809(a), respectively. 
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residence about four (4) minutes later. Upon arriving Officer 

Rogers observed [Appellant] sitting in the driver’s seat of the 

vehicle, which was parked in the driveway of Mr. McMahan’s 

residence. 

Upon approaching [Appellant] within his vehicle, Officer Rogers 

testified that he could smell the odor of alcohol coming from within 

the vehicle, that he observed [Appellant] fumble with his wallet to 

retrieve his identification and that [Appellant] was slurring his 

speech and had bloodshot eyes. Officer Eck also testified that 

[Appellant] was slurring his speech and that there was an odor of 

alcohol coming from the vehicle. Officer Eck further testified that 

he could tell, based on his training and experience, that the odor 

was that of alcohol after it has been metabolized, when it 

emanates from the body and not from a container. Officer Rogers 

testified that a glass tumbler was observed in the center console 

of the vehicle with a tan liquid inside of it as well as a partially 

emptied bottle of tequila and an empty Corona beer bottle behind 

the driver’s seat of the vehicle. [Appellant] refused to exit the 

vehicle when asked three (3) times and it took two (2) officers to 

forcibly remove him from the vehicle. After being removed from 

the vehicle, [Appellant] staggered and had trouble holding himself 

up while walking. [Appellant] was not asked to complete field 

sobriety tests because [Appellant] did not appear as if he could 

safely complete those tests due to his inability to walk and 

maintain his balance. 

Both Officer Rogers and Officer Eck have training in the detection 

of persons under the influence of alcohol. Both officers testified 

that their training and experience led them to the conclusion that 

[Appellant] was under the influence of alcohol to the extent that 

he could not safely operate a motor vehicle. When asked, 

[Appellant] admitted that he drove to Mr. McMahan’s residence 

and had arrived only a few minutes before. 

While [Appellant] did not state a specific time that he arrived at 

Mr. McMahan’s residence, he did indicate that it was at some time 

after 7:00 p.m. [Appellant] claimed that he purchased the bottle 

of tequila on his way to Mr. McMahan’s residence, but had not had 

anything to drink prior to arriving or prior to speaking with Mr. 

McMahan. [Appellant] stated that it was only after speaking with 

Mr. McMahan and returning to its vehicle that he opened, poured, 

and began sipping on the tequila. [Appellant] testified that he 

only had a few sips of tequila and does not chug drinks. 
J-S62010-17

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Trial Court Opinion, 4/4/17, at 5-7 (footnotes omitted). 

The incident occurred on April 9, 2016. Appellant proceeded to a bench 

trial on January 17, 2017. The court found Appellant guilty of the 

aforementioned issues, imposed sentence as set forth above, and this timely 

appeal followed. Appellant challenges the sufficiency of the evidence in 

support of both convictions, arguing the Commonwealth failed to prove that 

he was intoxicated while driving or that he drove with an open container. 

The applicable standard of review is as follows: 

When evaluating a sufficiency claim, our standard is whether, 

viewing all the evidence and reasonable inferences in the light 

most favorable to the Commonwealth, the factfinder reasonably 

could have determined that each element of the crime was 

established beyond a reasonable doubt. This Court considers all 

the evidence admitted, without regard to any claim that some of 

the evidence was wrongly allowed. We do not weigh the evidence 

or make credibility determinations. Moreover, any doubts 

concerning a defendant's guilt were to be resolved by the 

factfinder unless the evidence was so weak and inconclusive that 

no probability of fact could be drawn from that evidence. 

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal 

denied, 29 A.3d 796 (Pa. 2011). 

Section 3802 of the Motor Vehicle Code forbids an individual to “drive, 

operate, or be in actual physical control of the movement of a vehicle” while 

intoxicated. 75 Pa.C.S.A. § 3802(a). Section 3809 forbids “an individual who 

is an operator or occupant in a motor vehicle” to possess an open alcoholic 

beverage container. 75 Pa.C.S.A. § 3809(a). Appellant argues the evidence 
J-S62010-17

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is insufficient because the Commonwealth failed to prove that he opened the 

containers or consumed any alcohol until after he parked his vehicle. 

We have reviewed the trial court’s opinion, the applicable law, the 

parties’ briefs, and the record. We conclude that the trial court’s April 4, 2017 

opinion accurately addresses Appellant’s arguments, and we affirm on the 

basis of that opinion. In particular, we note that the trial court, sitting as 

finder of fact, found Appellant’s testimony not credible. Furthermore, police 

officers arrived on the scene within minutes of McMahan’s call, and the trial 

court credited their testimony that Appellant was already intoxicated and that

he smelled of metabolized alcohol. The standard of review requires us to defer 

to the fact finder’s credibility determinations and draw all reasonable 

inferences in favor of the Commonwealth, as verdict winner. We direct that a 

copy of the trial court’s opinion be filed along with this memorandum. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2017
. · . . ·.·· Circulated 11/27/2017 02:34 PM.·.: . ' 

vs . . No. 2191-2016 

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IN THE COURT OF C0¥MON PL�AS OF LAN GASTER. COUNTY, PENNSYL �lffi � CRIMINAL DIVISION . · . · -t ::ll: 

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RANDY SCOTI QLASS 

OPINION 

BY: KNISELY� J. April 3� 2017 

Appellant/Defendant, Randy· Scott "Glass, appeals from the. judgment of 

sentence imposed on January 11, 201_1. Defendant challenges th� sufficiency .otthe 

evidence supporting ·his convictions for driving under the influence of alcohol, 

. . 

general. impairment,

1 and. for possessing an open alcoholic beverage container-in 

violation of the Restriction on A_lcoholic Beverages.I Defendant admitted to driving 

only a few minutes prior to police finding hiJTI inside in· his vehicle, in a visibly 

intoxicated state and possessing inside the vehicle a glass of alcohol, an open liquor 

bottle with a significant amount emptied and an empty beer bottle·�·The evidence; 

and all reasonable inferences drawn therefrom, establish each material element of 

the offenses charged, and the commission thereof by ·. the accused, beyond a 

· reasonable doubt. 

.• 

1 75 -, Pa.C.S.A. § 3802(a)(l). 

:· 2 75 Pa.C.S.A. § 3809(a). 
BACKGROUND 

Defendant was convicted of one ( 1) count each of driving under the influence 

· of alcohol (general impairment),3 defiant- trespass with notice through actual 

communication" and violating the restrictions on alcoholic beverages by possessing 

an open container as the operator of a vehicle on a highway! following a bench ·trial 

. . 

on January 17, 20(7. Defendant's aggregate sentence is six (6) months of probation, 

fines and .costs and other relevant conditions.

6 On February 16, 20.17, Defendant 

filed a Notice of Appeal and pursuant to Pa.R.A.P. I 925(b) Order, Defendant filed 

a Concise Statement of Errors Complained of on .Appeal on March 9, 2017. 

Defendant challenges his convictions for driving under the influence of alcohol and 

for violations of the restrictions on alcoholic beverages claiming that each were not 

sufficiently supported by competent evidence," 

DISCUSSION 

Thestandard for reviewing the sufficiency of evidence is well-settled. 

When reviewing a sufficiency of the evidence claim, the appellate court 

must review all of the evidence and all reasonable inferences drawn 

therefrom· in the light most favorable to the Commonwealth, as the 

verdict winner. Evidence will be deemed to support·the verdict when it 

establishes each element of the crime charged and the commission 

thereof by the accused, beyond a reasonable doubt. The 

Commonwealth need not preclude every possibility of innocence or 

3 75 Pa.C.S.A. § 3802(a)(l). 

4 18 Pa.C.S.A. § 3503(b)(l)(i). 

5 75 Pa.C.S.A. § 3809(a). 

6 See, Sentencing Order, 1 /17/17; Sentencing Conditions Order; 1/17/17. 

7 See, Defendant's Concise Statement of Errors Complained of on Appeal, 3/9/17, 1 I· II. 

2 
establish the defendant's guilt to a mathematical certainty. Finally, the 

trier of fact while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or none of 

the evidence. 

Com. v. Teems, 14 A.3d 142, 144-45 (Pa.Super. 2013) (citing Commonwealth v, 

Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010)) (citations omitted). The burden of 

the Commonwealth may be established through wholly circumstantial evidence. 

Com. v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012). Any doubts as to guilt are 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." Id An appellate court may not re-weigh the evidence or substitute 

their judgment for that of the fact-finder. Id. 

I. Driving Under Influence of Alcohol - General Impairment 

As to the charge of driving under the influence of alcohol with a general 

impairment, 

the Commonwealth must prove that "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}. In proving 

intoxication, "non-expert testimony is admissible to prove intoxication where such 

testimony is based upon the witness' observation ... and where the witness can opine 

as to whether the defendant was drunk." Com. v. Ragan, 652 A.2d 925, 928 

(Pa.Super, 1995). Evidence of intoxication may include, but is not limited to, the 

3 
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following: the actions and behavior of the defendant; the defendant's demeanor, 

including towards an officer; and the defendant's physical appearance, particularly 

bloodshot eyes, the odor of alcohol and slurred speech. Com. v. Teems, 74 A.3d at 

145. 

Furthermore, while it is true that Subsection 3802(a)(l) is an "at the time of 

driving" offense, it "provides no specific restraint upon the Commonwealth in the 

manner in which it may prove that an accused operated a vehicle under the influence 

of alcohol to a degree which rendered him incapable of safe driving." Id. The 

Commonwealth's ability to utilize wholly circumstantial evidence applies not only 

to determining whether the defendant was intoxicated to the extent that he or she 

was rendered incapable of safely operating the vehicle, but also to determining 

whether the defendant was driving, operating or in actualphysical control of a motor 

vehicle at the time of such intoxication. Com. v, Williams, 871 A.2d 254, 259 

(Pa.Super. 2005). Such determination is made based upon the totality of the 

circumstances (Id.) and the fact-finder is permitted to rely on his or her experience 

· and common sense when assigning weight to the evidence (Com. v, Teems, 74 A.3d 

at 145). It has been noted that "our jurisprudence does not require fact-finders to 

suspend their powers of logical reasoning or common sense in the absence. of direct 

evidence" but permits them to make "reasonable inferences from circumstantial 

evidence introduced at trial." Com. v, Teems, 74 A.3d at 145. 

4 
In · the instant case, witness, James McMahan, testified that Defendant 

· appeared at the door of Mr. McMahan's residence on April 9, 2016 at approximately 

7:30 p.m. with bloodshot, red eyes," After speaking with Defendant and directing 

him to leave the property, Mr. McMahan-contacted �e police.

9·o�ficer Troy Rogers 

and Officer Phillip Eck of the Manor Township Police testified that they received a 

dispatch to Mr. Mclvlahan's p�operty at approximately 7:34 p.m. on .April 9; 2016 

and arrived at the residence about four (4) minutes later." Upon arriving Officer 

Rogers observed Defendant sitting in the driver's seat of the his vehicle, which was 

. . 

parked in the driveway of Mr. McMahan's residence.'! 

Upon approaching Defendant within his vehicle, Officer Rogers testified that 

_he could smell the odor of alcohol coming from within the vehicle, that he observed 

Defendant fumble with his wallet to retrieve his identification and that Defendant 

was slurring his speech and had bloodshot eyes.

12 Officer Eck also testified that 

Defendant was slurring his speech and that there was an. odor of alcohol coming 

from the vehicle. 

13 Officer Eck further testified that he .could tell, based on his 

training and experience, 

that the odor was that of alcohol after it has been 

8 N.T., Criminal Trial, 1/17/17, pp. 8·10, 12. 

9 N.T., Criminal Trial, 1/17/17, p. 10. 

10 N,T., Criminal Trial, 1117/17, pp._ 13, 14·15, 40, 42. 

II N.T., Criminal Trial, 1/17/17, pp. 16�17. 

12 N.T;, Criminal Trial, 1/17/17, pp. 17·18, 34.· 

13 N.T., Criminal Trial, 1,117/17, p, 46. 

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metabolized, when it emanates from the body and not from a container.

14 Officer 

Rogers testified that a glass tumbler was observed in the center console of the vehicle 

with a tan liquid inside of it as well as a partially emptied bottle of tequila and an 

empty Corona beer bottle behind the driver's seat of the vehicle. 

1 s Defendant refused 

to exit the vehicle when asked three (3) times and it took.two (2) officers to forcibly 

remove him from the vehicle. 

16 After being removed from the vehicle, Defendant 

staggered and had trouble holding himselfup while walking.

17 Defendant was not 

asked to complete field sobriety tests because Defendantdid not appear as ifhe could 

. safely complete those tests due to his. inability to walk and maintain his balance.

18 

Both Officer Rogers and Officer Eck have training in the detection of persons 

. 

under the influence of alcohol.19 Both officers testified that their training· and 

experience led them to the conclusion that Defendant was under the influence of 

alcohol to the extent that he could not safely operate a motor vehicle." When asked, 

Defendant admitted that he drove to Mr. Mclvlahan's residence and had arrived only 

a few minutes before. 

21 

14 N.T., Criminal Trial, 1117/17, pp. 41-42, 46. 

IS N.T., Criminal Trial, 1117/17, pp. 18-19; cw. Ex. 6; cw. Ex. 7; cw. Ex. 9. 

16 N.T., Criminal Trial, 1/17/17, pp. 21-23, 47-48. 

17 N.T., Criminal Trial, 1/17/17, pp. 23-24, 48. 

18 N.T., Criminal Trial, 1/17/17, pp. 24·25, 35. 

19 N.T., Criminal Trial, 1/17/17, pp. 14, 28, 40-42. 

20 N.T., Criminal Trial, 1/17/17, pp. 18, 22·23, 24, 52, 55. 

21 N.T., Criminal Trial, 1/17/17, pp. 18, 21. 

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. 

While Defendant did not state a specific time that he arrived at Mr. 

McMahan's residence, he did indicate that ii was at some tii:ne after 7:00 p.m.

22 

Defendant claimed that he purchased the bottle of tequila on his way to Mr. 

McMahan's residence, but had not had anything to drink prior to arriving or prior to 

speaking with. Mr. McMahan.

23 Defendant testified that it was only after speaking 

with Mr. Mclvlahan and returning to his vehicle that he opened, poured and began 

sipping on the tequila.

24 Defendant testified that he only had a few sips of the tequila 

and does not chug drinks.

25 

The testimony outlined above clearly indicates that Defendant _.operated his 

vehicle .during the time when he or she was rendered incapable of safely doing so 

· due to the consumption of alcohol. Immediately upon arriving at Mr. McMahan's 

residence, Defendant was exhibiting signs of.being �ntoxicated as testified to my· Mr. 

McMahan. Mere minutes later, Defendant was observed by officers to be exhibiting 

other clear signs of being highly intoxicated,· including having bloodshot eyes, 

slurring his speech, emitting the smell of alcohol, staggering and struggling to 

maintain his balance. All of this was observed mere minutes after Defendant had 

admittedly been driving. The testimony of Officer Rogers, ·Officer Eck and Mr. 

22 N.T., Criminal Trial, 1/17/17, pp. 63, 65. 

23 N.T., Criminal Trial, 1/17/17, pp .. 63-65, 72, 76, 80. 

24 N.T., Criminal Trial, 1117/17, pp. 68-69. 

25 N.T., Criminal Trial, 1117/17, p. 69. 

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McMahan wasfound to be credible, while the testimony of Defendant was found to 

be not credible. It is simply illogical and unreasonable to believe thatwithin a few 

. . 

minutes, Defendant became intoxicated to the leve� at which he �as observed having 

only taken a few sips of tequila. It is clear, beyond a reasonable doubt, thatDefendant 

operated his vehicle during th� time when he or she was rendered incapable_ of safely 

doing so due to the consumption of alcohol. · 

II. . Restrictions on Alcoholic Beverages 

This offense is defined as follows: 

. (a) General rule.v-Except as set forth in subsection (b), an individual 

who is an operator .or an occupant in a motor vehicle .may not be in 

possession -of an open alcoholic beverage container or consume a 

controlled substance .. �s defined in the, act of April 14, 1972 · (P .L.233, 

·No.64), known as _The· Controlled Substance, Drug, Device and 

Cosmetic Act; or an alcoholic beverage in a motor vehicle while the · 

motor vehicle is located on a highway in this Commonwealth. 

75 Pa.C.S.A. § 3809(a) (footnote omitted). 

Testimony and evidence at trial revealed beyond a reasonable doubt that 

Defendant possessed a partially emptied container of tequila and an empty beer 

· container in his vehicle while located on a highway in this Commonwealth. As stated 

above, the alcoholic beverage containers were observed in Defendant's vehicle, with 

Defendant present, mere minutes after Defendant was admittedly driving on public 

roadways.

26 Defendant's testimony that he did not open the bo�le ·of tequila until 

26N.T., Criminal T�ial, 1/17/17, pp. 18-·i9, 21, 63, 65� CW. Ex. 6; CW. Ex. 7; CW. Ex. 9. 

8 
after he was parked in Mr. Mclvlahan's driveway was not credible for the reasons 

stated above. Furthermore, Defendant himself did not contest the existence of the 

open and empty beer bottle in his vehicle at the time he was driving and denied 

opening it or consuming it after his arrival.

27 Defendant's testimony that he did not 

know the beer bottle was in the vehicle despite its presence directly beside the tequila 

bottle that he admittedly placed in the vehicle and allegedly opened after the vehicle 

was no longer moving was not credible.

28 Therefore, it is clear, beyond a reasonable 

doubt, that Defendant possessed a partially emptied container of tequila and an 

empty beer container in his vehicle while located on a highway in this 

Commonweal th. 

For all the foregoing reasons, the judgment of sentence imposed on January 

17, 2017 should not be disturbed. 

B�Y THE �

CO��

HOWARDF. KNISELY 

JUDGE 

AITEST: 

Copies to: 

Kane Podraza, Esq., Assistant Public Defender 

Office of the District Attorney n 

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27 N.T., Criminal Trial, 1/17/17, pp. 72-73. -e 

28 N.T., Criminal Trial, 1/17/17, pp. 63-65, 68-69, 76, 80; CW. Ex. 6; CW. Ex. 9. :t> 

9