Com. v. Clemens, J.

J-S30018-20

                                   

2020 PA Super 261

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  JEFFREY LYNN CLEMENS                         :
                                               :
                       Appellant               :   No. 1668 WDA 2019

        Appeal from the Judgment of Sentence Entered May 9, 2019
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0000461-2018


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY McLAUGHLIN, J.:                             FILED OCTOBER 28, 2020

       Jeffrey Lynn Clemens appeals from the judgment of sentence entered

following his jury trial conviction for Resisting Arrest and bench trial

convictions for Driving Under the Influence of Alcohol (“DUI”)-General

Impairment, Careless Driving, and Restrictions on Alcoholic Beverages.1

Clemens challenges the sufficiency and weight of the evidence. We affirm.

       Clemens was charged with the above-referenced offenses after he

struck a light pole with his car. The court held a trial, where the parties

presented the following evidence.




____________________________________________


* Former Justice specially assigned to the Superior Court.


1 18 Pa.C.S.A. §     5104, 75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), and 3809(a),
respectively.
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      In December 2017, Tina Dobson, an employee of a truck stop, learned

that someone had driven into a light pole outside the truck stop. N.T.,

3/21/19, at 13-14. She went outside and spoke to the driver of the vehicle,

which was Clemens. Id. at 13-15. Clemens told her he struck the light pole

about ten to 15 minutes before she came out. Id. Dobson stated that she

smelled alcohol on Clemens, he was repeating himself, and he “wasn’t real

steady on his feet and he had claimed that he was going to wait about an hour

and then he was going to continue to drive to Cleveland.” Id. at 14, 18.

Dobson testified that she observed the light pole and damage to the front end

and headlight of Clemens’ vehicle. Id. at 14. Dobson called the Pennsylvania

State Troopers and explained what happened. Id. at 15.

      On cross-examination, Dobson stated that Clemens also informed her

that the defrosters on his vehicle were not functioning and the windows had

“fogged up” prior to the accident. Id. at 18-19. She observed that the windows

on the vehicle were fogged. Id.

      Trooper Dylan Weaver testified that he arrived at the truck stop in a

marked police vehicle and in uniform. Id. at 24-25. He approached Clemens

and his vehicle, which had front-end damage. Id. at 25. He said the light pole

was clearly marked, as the base was a bright yellow, and Clemens’ keys were

on the dashboard, not in the ignition. Id. at 26-27. The Trooper said he

detected a “very, very strong odor of alcohol beverage emanating off

[Clemens’] person.” Id. Clemens repeated himself multiple times, stating he

had made a left turn into the truck stop and crashed into “that yellow thing,”

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and he had gotten off the interstate because his defrosters were not working.

Id. Trooper Weaver stated Clemens was hesitant to tell him what happened.

Id.

      According to the Trooper, after Clemens admitted to being behind the

wheel and in physical control of the vehicle, Trooper Weaver confronted him

about the smell of alcohol. Id. Clemens stated he had not been drinking. Id.

Trooper Weaver saw on the passenger seat a cooler with the lid partially off,

and the top of a blue and red aluminum can. Id. at 29. The can was a 25

ounce can of Natty Daddy, which is an eight percent by volume alcoholic

beverage. Id. The can was a little less than a quarter full. Id. at 30.

      Trooper Weaver offered Clemens the opportunity to perform field

sobriety tests. Id. Clemens “hum[med]-and-haw[ed] around about it, telling

[Trooper] Weaver that [he] didn’t have cause to request him to leave his car.”

Id. Trooper Weaver stated that Clemens took “quite a while” to find the

insurance card and later forgot that he had handed Trooper Weaver his

identification. Id. at 30-31. Trooper Weaver testified that in his opinion,

Clemens “was too impaired to drive.” Id. at 33.

      Trooper Weaver asked Clemens to get out of the vehicle, but Clemens

did not comply. Id. at 34. Trooper Weaver provided multiple opportunities to

exit, but Clemens told Trooper Weaver that he did not “have cause to pull

[him] out of the vehicle.” Id. Trooper Weaver called for assistance, and

Corporal Todd Koebley arrived. Id. at 35. Trooper Weaver again asked




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Clemens if he would perform field sobriety tests, and Clemens said he would

not. Id.

       Trooper Weaver and Corporal Koebley then gave Clemens several

commands to exit the vehicle, but Clemens remained inside. Id. Trooper

Weaver stated, “We continued to interact with him and it was clear that he

wasn’t going to come out of the vehicle based on our verbal commands. At

that point I grabbed his arm and began to try to physically remove him from

the vehicle. He grabbed the steering wheel and resisted me. . . .” Id. It took

both Trooper Weaver and Corporal Koebley pulling on Clemens to get him out

of the vehicle. Id. After Trooper Weaver warned Clemens that if he did not

get out, they would tase him, Clemens remained in the vehicle and Corporal

Koebley tased him in the right thigh. Id. at 36. Clemens then finally got out

of the vehicle, and Trooper Weaver put Clemens’ arm behind his back. Id. He

gave commands for Clemens to put his hands behind his neck, but Clemens

did not cooperate. Id. Trooper Weaver and Corporal Koebley eventually were

able to take Clemens into custody. Id. at 37.2

       Trooper Weaver then asked Clemens to submit to a breath testing, and

Clemens said, “No.” Id. at 39-40. Trooper Weaver read Clemens the DL-26

form, which contains the implied consent warnings. Trooper Weaver also gave

it to Clemens to read, and Clemens signed the form acknowledging he read it.

____________________________________________


2 The jury saw the motor vehicle recording, which Trooper Weaver stated was

a fair and accurate depiction of what occurred that night. N.T., 3/21/19, at
38.

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Id. at 39. One of the warnings on the form stated that if he refused, Clemens’

license would automatically be suspended for 12 months. Id. at 40.

      On cross-examination, Trooper Weaver stated that, until Clemens was

in handcuffs, Trooper Weaver never “said out loud you’re under arrest.” Id.

at 42. He stated that “a reasonable person when state police are continually

pulling on you, telling you to get out, grabbing you, okay, a taser is used on

your person to get you to exit the vehicle, your hands are being taken and

tried to be placed behind your back, you are given commands to put your

hands behind your back, you are taken to the ground because you continue

to resist arrest. You don’t initially resist and then comply, you continue to

resist arrest, okay. He understood he was under arrest.” Id. at 43.

      Further, on cross-examination, Trooper Weaver stated he did not notice

any slurred speech or anything unusual about Clemens’ eyes, and that

Clemens said he had just purchased the vehicle that day and was having

trouble locating the paperwork. Id. at 46-49.

      Corporal Koebley also testified and said that he responded to Trooper

Weaver’s request for back up. He testified that he and Trooper Weaver

attempted to “wrestle” Clemens out of the car, and “he was resisting heavily.”

Id. at 53. According to Corporal Koebley, Clemens held onto the steering

wheel, locked himself into position with his feet, and refused to exit, despite

the troopers’ commands. Id. at 53-54. He also stated that they warned

Clemens that Corporal Koebley would use the taser if Clemens did not comply,

and when Clemens did not comply, Corporal Koebley used the taser on him.

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Id. Clemens immediately got out of the vehicle, and troopers “[u]ltimately . .

. took him to the ground and forcibly handcuffed him.” Id. at 55. Corporal

Koebley also testified that he observed signs of intoxication on Clemens,

including a “[s]trong odor of alcohol, difficulty standing, repeating himself.”

Id. at 56.

      The jury convicted Clemens of Resisting Arrest and the trial court found

him guilty of DUI-General Impairment. The court stated it based the DUI

conviction “on the observations of the employee, the observations of both

state police troopers, the alcohol found in his car, the fact that he did hit the

pole, the refusal of the breath and blood and the field tests, as well as his

behaviors seen on the video.” Id. at 95. The court also found him guilty of the

summary offenses of       Careless Driving     and Restrictions on     Alcoholic

Beverages.

      The trial court sentenced Clemens to six months’ restrictive intermediate

punishment for the DUI conviction, one year of probation and 25 hours’

community service for the Resisting Arrest conviction, and 25 hours’

community service for the Restrictions on Alcoholic Beverages conviction.

      Clemens’ counsel filed a motion to withdraw, which the trial court

granted. Clemens filed a pro se motion for a new trial, which the trial court

denied. Clemens filed a notice of appeal. Clemens requested the appointment

of counsel, and we remanded to the trial court, which appointed new counsel.

      Clemens raises the following issues:




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J-S30018-20


         1. Whether the evidence was insufficient to support the
         guilty verdict of DUI General Impairment as Pennsylvania
         State Police Officers Weaver and Koebley did not witness
         [Clemens] operating his vehicle, and testified only to the
         detection of the odor of alcohol around [Clemens] on the
         date of his arrest and an open container to support the
         Commonwealth’s case.

         2. Whether the evidence was insufficient to support the
         guilty verdict of Resisting Arrest where Pennsylvania State
         Police Officers Weaver and Koebley did not notify [Clemens]
         that he was under arrest prior to the Officers attempting to
         forcibly remove [Clemens] from his vehicle on the date of
         his arrest.

         3. Whether the finding of guilt for DUI General Impairment
         was against the weight of the evidence where Pennsylvania
         State Police Officers Weaver and Koebley did not witness
         [Clemens] operating his vehicle, and testified only to the
         detection of the odor of alcohol around [Clemens] on the
         date of his arrest and an open container to support the
         Commonwealth’s case.

         4. Whether the finding of guilt for Resisting Arrest was
         against the weight of the evidence where Pennsylvania
         State Police Officers Weaver and Koebley did not notify
         [Clemens] that he was under arrest prior to the Officers
         attempting to forcibly remove [Clemens] from his vehicle on
         the date of his arrest.

Clemens’ Br. at 6.

      In the first two issues, Clemens challenges the sufficiency of the

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

“must determine whether the evidence admitted at trial, and all reasonable

inferences drawn therefrom, when viewed in a light most favorable to the

Commonwealth as verdict winner, support the conviction beyond a reasonable

doubt.” Commonwealth v. Feliciano, 

67 A.3d 19, 23

 (Pa.Super. 2013) (en

banc) (citation omitted). “Where there is sufficient evidence to enable the trier


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J-S30018-20



of fact to find every element of the crime has been established beyond a

reasonable doubt, the sufficiency of the evidence claim must fail.” 

Id.

 (quoting

Stokes, 38 A.3d at 853). This standard applies equally where the

Commonwealth’s evidence is circumstantial. Commonwealth v. Patterson,

180 A.3d 1217, 1229

 (Pa.Super. 2018).

      In conducting this analysis, we do not weigh the evidence and substitute

our judgment for that of the fact-finder. See Commonwealth v. Snyder,

870 A.2d 336, 350

 (Pa.Super. 2005). Additionally, the Commonwealth's

evidence need not preclude every possibility of innocence in order to prove

guilt beyond a reasonable doubt. 

Id.

 The fact-finder is free to believe all, part,

or none of the evidence. Id.; Commonwealth v. Mollett, 

5 A.3d 291, 313

(Pa.Super. 2010).

      Clemens claims the Commonwealth failed to present sufficient evidence

to sustain the DUI conviction. He argues that no witness saw him driving.

Further, he notes that although the troopers smelled alcohol, Trooper Weaver

acknowledged Clemens did not exhibit slurred speech or have glassy,

bloodshot eyes. He argues that he was driving a new vehicle in which the

defroster was not working, and that the odor of alcohol and a single can of an

alcoholic beverage do not support the conviction.

      The crime of DUI-General Impairment provides that “[a]n 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

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J-S30018-20



control of the movement of the vehicle.” 75 Pa.C.S.A. § 3802(a)(1). The

Commonwealth must establish that the defendant (1) was operating a motor

vehicle (2) after imbibing a sufficient amount of alcohol such that he was

rendered incapable of safely operating the motor vehicle. Commonwealth v.

Segida, 

985 A.2d 871, 876

 (Pa. 2009) (citing Commonwealth v. Kerry, 

906 A.2d 1237, 1241

 (Pa.Super. 2006)). To prove a person is incapable of driving

safely, the Commonwealth must prove

         that alcohol has substantially impaired the normal mental
         and physical faculties required to operate the vehicle safely;
         substantial impairment means a diminution or enfeeblement
         in the ability to exercise judgment, to deliberate or to react
         prudently to changing circumstances and conditions. The
         meaning of substantial impairment is not limited to some
         extreme condition of disability. Section 3802(a)(1), like its
         predecessor, is a general provision and 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.

Kerry, 

906 A.2d at 1241

 (citations, quotation marks, and brackets omitted).

      Clemens relies on Commonwealth v. Gause, 

164 A.3d 532

 (Pa.Super.

2017) (en banc), in support of his sufficiency claim. In Gause, a police officer

initiated a stop of the car the defendant was driving because it lacked

illuminated taillights. The defendant provided his license and registration

without any fumbling. The officer smelled alcohol, and the defendant stated

he had consumed one 12-ounce can of beer. The defendant also completed

some field sobriety tests, “with varying levels of success,” but informed the

officers that he had been shot in the leg ten years before the stop. 

Id. at 535

,


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J-S30018-20



535 n.5. We concluded the evidence did not support a conviction under Section

3802(a)(1), noting that the defendant had “readily acknowledged” he had a

beer about a half hour before the stop, was cooperative, did not exhibit typical

indicators of alcohol impairment, and there was no evidence of erratic driving,

slurred speech, or difficulty in handing over required documents or with

standing. 

Id. at 541

. We further noted that although the field sobriety tests

yielded inconsistent results, the officer recognized the reliability of the tests

could have been affected by the defendant’s leg injury. 

Id.

      Here, the Commonwealth presented sufficient evidence to support the

conviction. Clemens told both Dobson and Trooper Weaver that he had driven

his vehicle into the light pole. Unlike the defendant in Gause, Clemens had

difficulty retrieving the requested paperwork, was not cooperative, and

refused to perform field sobriety tests, and Dobson, who spoke with Clemens

ten to 15 minutes after the accident, detected the smell of alcohol. Trooper

Weaver also detected a strong odor of alcohol.

      Moreover, there were indicia of intoxication to a degree that rendered

Clemens unfit to drive safely. Trooper Weaver testified that Clemens was

repeating himself, had trouble finding his documents, and refused to undergo

field sobriety tests or a breath test. Trooper Weaver further found a 25-ounce

can of 8% alcohol in the passenger seat that was only 25% full. Such evidence

supports a finding, beyond a reasonable doubt, that Clemens was operating a

motor vehicle after imbibing an amount of alcohol that made it unsafe for him

to do so. See Kerry, 

906 A.2d at 1241

 (finding Commonwealth presented

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J-S30018-20



sufficient evidence of impairment where defendant had 4 cans of alcohol on

his person, he exhibited signs of intoxication, including bloodshot eyes, slurred

speech, and odor of alcohol, and he refused to submit to breath test).

      Clemens also challenges the sufficiency of the evidence to support the

Resisting Arrest conviction. He argues the troopers never informed him he was

under arrest and that he did not strike, or attempt to strike, the officers, or

attempt to kick or push the officers.

      The crime of Resisting Arrest occurs when a person “with the intent of

preventing a public servant from effecting a lawful arrest or discharging any

other duty, . . . creates a substantial risk of bodily injury to the public servant

or anyone else, or employs means justifying or requiring substantial force to

overcome the resistance.” 18 Pa.C.S.A. § 5104. “[A] valid charge of resisting

arrest requires an underlying lawful arrest, which, in turn, requires that the

arresting officer possess probable cause.” Commonwealth v. Soto, 

202 A.3d 80, 96

 (Pa.Super. 2018) (quoting Commonwealth v. Hock, 

728 A.2d 943, 946

 (Pa. 1999)). “Section 5104 criminalizes two types of conduct intended to

prevent a lawful arrest: the creation of a substantial risk of bodily injury to

the officer or anyone else or means justifying or requiring a substantial force

to overcome.” Id. at 95.

      In Commonwealth v. Thompson, this Court upheld the defendant’s

Resisting Arrest conviction where an officer had to struggle to pull the

defendant away from her husband with whom she had interlocked her arms

and legs. 

922 A.2d 926, 928

 (Pa.Super. 2007).The officer had commanded

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her to put her hands behind her back, but she refused and held her arms

tightly beneath her. 

Id.

 We concluded, despite the absence of evidence that

she was fighting the officers, that the defendant’s “passive resistance

requiring substantial force to overcome provided sufficient evidence for

upholding the resisting arrest conviction.” 

Id.

      Here, the officers had probable cause to arrest Clemens for DUI, as,

among other things, he smelled of alcohol, there was an open container in his

passenger seat, and he had struck a light pole. Regardless of whether the

officers used the word “arrest,” it would have been clear to a reasonable

person that they ordered Clemens to get out of the vehicle, and attempted to

extricate him from it, in an effort to effectuate an arrest. Further, both Trooper

Weaver and Corporal Koebley testified to the extreme efforts required to

remove Clemens from the vehicle, including the use of a taser. The evidence

was sufficient to support the Resisting Arrest conviction. See Thompson, 

922 A.2d at 928

.

      Clemens’ remaining two issues challenge the weight of the evidence. He

claims the DUI conviction was against the weight of the evidence, which he

maintains merely showed that he was “simply experiencing difficulty in

operating an unfamiliar vehicle with fogged-up windows.” Clemens’ Br. at 20.

He claims the guilty verdict for Resisting Arrest also was against the weight of

the evidence, as there was no testimony he struck, or attempted to strike, the

officers or that the officers employed substantial force.




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J-S30018-20



      “When reviewing a challenge to the weight of the evidence, we review

‘the trial court's exercise of discretion.’” Commonwealth v. Roane, 

204 A.3d 998, 1001

 (Pa.Super. 2019) (quoting Commonwealth v. Johnson, 

192 A.3d 1149, 1152-53

 (Pa.Super. 2018)). A trial court may sustain a weight challenge

only if the verdict “‘is so contrary to the evidence as to shock one's sense of

justice.’” 

Id.

 (quoting Johnson, 

192 A.3d at 1153

). “The weight of the

evidence is exclusively for the finder of fact, who is free to believe all, none or

some of the evidence and to determine the credibility of the witnesses.” 

Id.

(quoting Commonwealth v. Cramer, 

195 A.3d 594, 600

 (Pa.Super. 2018).

We defer to the trial court’s decision regarding a weight of the evidence claim

because it “had the opportunity to hear and see the evidence presented.” 

Id.

(quoting Cramer 1925 A.3d at 600).

      Here, the trial court found the verdict was not against the weight of the

evidence. It reasoned that Clemens cross-examined three witnesses and

“pointed out problems with the evidence,” and stated that the issue of

credibility was for the jury. Trial Court Opinion, Feb. 19, 2020, at 3. It found

the evidence supported the verdict and the verdict did not “shock one’s sense

of justice.” Id. at 3-4. This was not an abuse of discretion.

      Judgment of sentence affirmed.




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J-S30018-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2020




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