J-S41043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TERRENCE MICHAEL CLARK,

Appellant No. 1760 MDA 2014

Appeal from the Judgment of Sentence September 15, 2014

in the Court of Common Pleas of York County

Criminal Division at No.: CP-67-CR-0001674-2014

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 10, 2015

Appellant, Terrence Michael Clark, appeals from the judgment of 

sentence imposed after his conviction, following a jury trial, of driving under 

the influence (DUI) (highest rate of alcohol), second offense.1 We affirm.

The trial court summarized the factual and procedural history of this 

case as follows:

On February 22, 2014, at around 3:20 [a.m.], [West 

Manchester Township Police] Officer Keith Roehm observed two 

vehicles traveling at a high rate of speed down Route 30 in York 

County, Pennsylvania. Officer Roehm pulled onto the roadway 

and proceeded to follow a white Ford pickup truck. It took 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(c). We note that the trial judge also convicted 

Appellant of DUI (general impairment) and exceeding maximum speed 

limits. See 75 Pa.C.S.A. §§ 3802(a)(1) and 3362(a)(2). These offenses are 

not the subject of the instant appeal.
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Officer Roehm, going well over 100 mph, approximately one mile 

to catch up to the vehicle. Using a method called pacing mode, 

Officer Roehm was able to clock the truck at 91 mph in a posted 

55 mph zone. As the truck approached a red light and began to 

slow down, Officer Roehm activated his emergency lights and 

initiated a traffic stop. The truck pulled over and Officer Roehm 

identified the driver as [] Appellant.

Officer Roehm approached the vehicle and engaged [] 

Appellant in conversation. He noted that [] Appellant had 

glassy/bloodshot eyes, slurred speech, and an odor of beer 

coming off his breath. . . . Based on his training and experience, 

Officer Roehm asked [] Appellant to exit the vehicle and perform 

some field sobriety tests. . . .

* * *

Based on what Officer Roehm observed, he placed [] 

Appellant under arrest and transported him to York Hospital to 

have his blood drawn. Officer Roehm observed the nurse draw 

[] Appellant’s blood using the standard NMS Laboratory kit. The 

records indicated that [] Appellant’s blood was drawn at 4:05 

[a.m.] The kit was then sent to NMS Labs in Willow Grove, 

Pennsylvania. The report Officer Roehm received from NMS Labs 

stated that [] Appellant’s BAC [(blood alcohol content)] was 

0.179%.

* * *

[At trial, t]he last witness for the Commonwealth was 

Ayako Chan-Hosokawa. Ms. Hosokawa is a forensic toxicologist 

at NMS Labs in Willow Grove. She was admitted as an expert 

witness without objection. After explaining the standard NMS 

blood draw kit, Ms. Hosokawa explained how a person’s BAC is 

determined. Ms. Hosokawa also testified about the procedures 

used to protect samples from contamination. She further 

explained that the blood is actually tested twice and those 

results have to be within 5% of each other. If those results do 

not match within the 5% window the blood is tested again. 

Using all of the above procedures, Ms. Hosokawa testified that [] 

Appellant’s BAC was 0.179%[.]

Briefly on direct examination, Ms. Hosokawa explained that 

because of the volume of blood samples tested each day at her 
J-S41043-15

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lab, the samples are run in batches, or groups. On crossexamination, Ms. Hosokawa further explained that the lab runs 

300 to 400 blood samples a day on the machine used to test [] 

Appellant’s blood. Next, Ms. Hosokawa explained that a batch 

consists of four components: (1) a control containing up to ten 

samples (2) ten real samples submitted to the lab for testing (3) 

another control containing up to ten samples and (4) another ten 

real samples submitted for testing. In a particular batch, if the 

second control sample fails, that entire batch will be retested. 

Although Ms. Hosokawa testified that control samples do not fail 

often, she did state that a control sample failed four times on the 

day [] Appellant’s blood was tested. However, on redirect Ms. 

Hosokawa did explain that the batch containing [] Appellant’s 

sample was not affected by any of the failed control samples.

(Trial Court Opinion, 12/31/14, at 2-4) (record citations and quotation marks 

omitted).

On August 13, 2014, a jury convicted Appellant of DUI (highest rate of 

alcohol), second offense, and the trial judge convicted him of DUI (general 

impairment) and exceeding maximum speed limits, and immediately ordered 

a pre-sentence investigation report. On September 15, 2014, the court 

sentenced Appellant to an aggregate term of not less than fifteen months’ 

nor more than five years’ partial confinement consisting of seven months’ on 

work release followed by eight months’ house arrest. The court also ordered 

him to obtain a drug and alcohol evaluation; and attend an alcohol and safe 

driving clinic, and a driver improvement school.
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On September 22, 2014, Appellant filed a post-sentence motion. The 

court denied Appellant’s motion on September 25, 2014. Appellant timely 

appealed on October 16, 2014.2

Appellant raises the following question for our review:

Did the trial court abuse its discretion in finding the verdict was 

not against the weight of the evidence where the machine used 

to run Appellant’s BAC had produced false batches?

(Appellant’s Brief, at 4).3

Our standard of review is well-settled:

The weight given to trial evidence is a choice 

for the factfinder. If the factfinder returns a guilty 

verdict, and if a criminal defendant then files a 

motion for a new trial on the basis that the verdict 

was against the weight of the evidence, a trial court 

is not to grant relief unless the verdict is so contrary 

to the evidence as to shock one’s sense of justice.

When a trial court denies a weight-of-theevidence motion, and when an appellant then 

appeals that ruling to this Court, our review is 

limited. It is important to understand we do not 

reach the underlying question of whether the verdict 

was, in fact, against the weight of the evidence. We 

do not decide how we would have ruled on the 

motion and then simply replace our own judgment 

for that of the trial court. Instead, this Court 

determines whether the trial court abused its 

____________________________________________

2

Pursuant to the court’s order, Appellant filed a timely Rule 1925(b) 

statement on November 7, 2014. The court entered its Rule 1925(a) 

opinion on December 31, 2014. See Pa.R.A.P. 1925.

3 We note that Appellant withdrew his claim of insufficient evidence. (See

Appellant’s Brief, at 4 n.1).
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discretion in reaching whatever decision it made on 

the motion, whether or not that decision is the one 

we might have made in the first instance.

Moreover, when evaluating a trial court’s 

ruling, we keep in mind that an abuse of discretion is 

not merely an error in judgment. Rather, it involves 

bias, partiality, prejudice, ill-will, manifest 

unreasonableness or a misapplication of the law. By 

contrast, a proper exercise of discretion conforms to 

the law and is based on the facts of record.

Commonwealth v. Ferguson, 107 A.3d 206, 212-13 (Pa. Super. 2015) 

(citation omitted).

Here, Appellant argues that “the trial court abused its discretion in 

ruling on the weight of the evidence claim by relying on the fact that 

Appellant’s batch was not a part of the four failed batches.” (Appellant’s 

Brief, at 10). Specifically, he claims “there is no way to tell if the machine 

was working properly considering the high number of failures which occurred 

in a single day.” (Id.). We disagree.

We note that, “the jury is free to believe all, part, or none of the 

evidence and to determine the credibility of the witnesses.” Ferguson, 

supra at 213 (citation and internal quotation marks omitted).

Moreover, our independent review of the record reflects that 

Appellant’s blood sample was not in any of the four failed batches. (See

N.T. Trial, 8/13/14, at 106-07). Additionally, there was no evidence that the 

machine was flawed rendering invalid results. (See id. at 101-07).
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Accordingly, we discern no abuse of discretion in the trial court’s 

determination that the jury’s verdict did not shock one’s sense of justice. 

See Ferguson, supra at 212-13. Therefore, Appellant’s issue lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015