J-S36005-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

THOMAS M. MCCHESNEY 

 Appellant No. 951 WDA 2014 

Appeal from the Judgment of Sentence May 1, 2014 

In the Court of Common Pleas of Greene County 

Criminal Division at No(s): CP-30-CR-0000378-2013 

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.* 

MEMORANDUM BY PANELLA, J. FILED JULY 21, 2015 

 Appellant, Thomas M. McChesney, appeals from the judgment of 

sentence entered in the Court of Common Pleas of Greene County after he 

was convicted on charges of driving under the influence of alcohol. 

McChesney argues that the trial court erred in finding that the breath testing 

device used to measure his blood alcohol content (“BAC”) was an accepted 

device. We disagree and affirm. 

 In the early evening of September 2, 2013, McChesney was pulled 

over for driving through a stop sign without coming to a complete stop. The 

Pennsylvania State Trooper who initiated the stop noticed indications of 

alcohol intoxication, and administered a preliminary breath test as well as a 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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horizontal gaze nystagmus test. Based upon the results of these tests, the 

Trooper placed McChesney under arrest and transported him to the barracks 

for further testing. 

 At the barracks, the Trooper administered a breath test with a device 

known as a “DataMaster DMT.” This test indicated that McChesney’s BAC 

was 0.144. As a result, the Trooper filed charges of driving under the 

influence of alcohol (high rate), driving under the influence of alcohol 

(incapable of safe driving), and failure to stop at a stop sign. 

 McChesney filed a motion to suppress, arguing that the stop initiated 

by the Trooper was invalid. After a hearing, the trial court denied the 

motion. 

 The case proceeded to a non-jury trial. McChesney objected to, inter 

alia, the admission of the DataMaster DMT results, arguing that the 

Commonwealth had not supplied the necessary foundation. The trial court 

overruled McChesney’s objection, and ultimately found McChesney guilty on 

all counts. On the same date, the trial court sentenced McChesney to a term 

of incarceration of 48 hours to six months. This timely appeal followed. 

 On appeal, McChesney raises a single issue for our review. McChesney 

argues that the Commonwealth failed to meet its burden of proof regarding 

foundation for the admission of his BAC. Specifically, McChesney contends 

that the Commonwealth failed to present sufficient evidence that the 

DataMaster DMT was “approved equipment” for determining BAC. 
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 While McChesney styles this argument as a challenge to an evidentiary 

ruling, we conclude that his arguments are more properly classified as a 

challenge to the sufficiency of the evidence supporting his conviction. We 

address McChesney’s argument by first noting our standard of review. When 

reviewing a non-jury trial, we review the record to ensure the findings of fact 

are supported by competent evidence and that the trial court did not commit 

an error of law. See Commonwealth v. Kaufman, 849 A.2d 1258, 1259 

(Pa. Super. 2004). 

When considering a challenge to the sufficiency of the evidence, 

this court must view the evidence in a light most favorable to the 

Commonwealth, the verdict winner, and draw all reasonable 

inferences therefrom. We must then determine whether the 

evidence was sufficient to permit the fact-finder to conclude that 

each and every element of the crimes charged was proven 

beyond a reasonable doubt. Any question of doubt is for 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. (internal citations omitted). 

 Here, McChesney challenges his conviction for driving under the 

influence of alcohol (high rate), 75 Pa.C.S.A. § 3802(b). Section 3802(b) 

provides that a person may not operate a motor vehicle if he or she is under 

the influence of alcohol such that the person’s BAC is at least 0.10% but less 

than 0.16% within two hours after the person has operated the vehicle. See 

75 Pa.C.S.A. § 3802(b). An operator’s BAC can be measured for purposes of 

Section 3802 through the use of “approved equipment” operated by 

“qualified persons.” 75 Pa.C.S.A. § 1547(c). “Approved equipment” are 
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devices certified through regulations promulgated by the Department of 

Health and the Department of Transportation. See 75 Pa.C.S.A. § 

1547(c)(1). Devices so certified are listed at least annually in the 

Pennsylvania Bulletin. See, e.g., 45 Pa.B. 79. 

 During the direct examination of the Trooper who arrested McChesney, 

the following relevant exchange occurred: 

Q: How long of a trip is it from this place where you 

encountered Mr. McChesney to the Pennsylvania State Police 

barracks? 

A: Approximately 25 to 30 minutes. 

Q: Okay. And are you a certified breath test instrument 

operator? 

A: Yes, ma’am. 

Q: And let me ask you this: What type of instrument do they 

have available at the Pennsylvania State Police barracks? 

A: The DataMaster, ma’am. 

Q: And is that an instrument approved for – a breath testing 

device approved for determining blood alcohol content in 

Pennsylvania? 

A: Yes, ma’am. 

Q: And, I don’t know. I have the Pennsylvania Bulletin here. 

[Prosecutor:] I don’t know if the Court wishes to take 

judicial notice, or if counsel wishes to see the copy of the 

Pennsylvania Bulletin regarding this particular device or – 

THE COURT: Well, the officer has testified that it’s 

been accepted. 
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[Prosecutor:] -- if there’s any challenge to the approval 

of this device. 

[Def. Counsel:] Well, I think the evidence has to be that 

it is an approved device. I think the officer can determine 

that it’s approved.[1] 

[Prosecutor:] All right. I have with me printed out a 

copy of the Pennsylvania Bulletin, Document No. 1442. I 

note on page 11 of 13 – and I don’t have an extra copy of 

this, but I can certainly show it to [defense counsel] and 

provide to the Court, that it lists the DataMaster DMT as 

approved. 

THE COURT: Well, do you want to show [defense 

counsel?] 

[Def. Counsel:] We would object, Your Honor. 

THE COURT: Based on? 

[Def. Counsel:] This is a list of approved devices as of 

January 4, 2014. This event occurred in 2013. 

[Prosecutor:] If the Court wishes for me to take a 

recess, I can access the previous Pennsylvania Bulletin. 

I’d certainly do that if the Court wishes me to do so. 

THE COURT: No. We’ll accept it. The objection is 

overruled. 

N.T., Trial, 4/30/14, at 18-20. 

____________________________________________ 

1

 The Commonwealth notes in its brief that McChesney filed a motion for 

correction of the record with respect to this response in the transcript. The 

Commonwealth further observes that trial court ordered the court reporter 

to review the transcript and provide defense counsel an opportunity to listen 

to the recording. “The Commonwealth knows of no subsequent correction or 

modification to the record.” Appellee’s Brief, at 3, n.4. In any event, we 

find this statement by defense counsel to be of little significance, given 

defense counsel’s objection shortly thereafter. 
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 McChesney argues that the Commonwealth never requested the trial 

court take judicial notice of the approved status of the DataMaster DMT 

through the Pennsylvania Bulletin. We conclude that while the prosecutor 

never explicitly requested the trial court take judicial notice, she did 

reference judicial notice before presenting the Pennsylvania Bulletin to the 

court. Furthermore, when the trial court overruled defense counsel’s 

objection, it ruled that the relevant Pennsylvania Bulletin was being admitted 

as evidence. Once the Bulletin was admitted into evidence, the trial court 

was required to take judicial notice of it. See 45 Pa.C.S.A. § 506. 

 In the alternative, McChesney argues that since the Commonwealth 

presented the list of approved devices published in 2014, it could not 

support a finding that the DataMaster DMT was an approved device at the 

time of his arrest. However, this Court has rejected a similar argument 

under a previous version of 75 Pa.C.S.A. § 1547(c). See Commonwealth 

v. Hess, 503 A.2d 448, 449 (Pa. Super. 1986) (conditions for admissibility 

of BAC contained in 75 Pa.C.S.A. § 1547(c) must be satisfied at time of trial, 

not at the time of testing).2 We thus conclude that McChesney’s challenge 

on appeal merits no relief. 

 Judgment of sentence affirmed. Jurisdiction relinquished. 

 Judge Strassburger joins the memorandum. 

____________________________________________ 

2

 We note that in any event, the DataMaster DMT was an approved device in 

2013. See 43 Pa.B. 72. 
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 Judge Jenkins concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/21/2015