NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 273 MDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. VICTOR VERDEKAL Appellant No. 273 MDA 2012 Appeal from the Judgment of Sentence September 14, 2011 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J. MEMORANDUM BY OTT, J.: Filed: March 28, 2013 Victor Verdekal appeals from the judgment of sentence imposed on September 14, 2011, made final by the denial of post-sentence motions on January 13, On June 9, 2011, a jury convicted Verdekal of driving under the influence of alcohol ( DUI ) (general impairment). 1 Verdekal raises four issues on appeal: (1) the court erred in denying his motion to suppress because the officer conducted an invalid stop based on a lack of reasonable suspicion; (2) there was insufficient evidence to convict him of DUI because the Commonwealth failed to establish that his mental and 1 75 Pa.C.S. 3802(a)(1). Verdekal s DUI conviction was graded as a second offense for sentencing purposes. Although it was graded as a second offense, Verdekal had four DUI convictions in the past five years. See N.T., 9/14/2011, at 2, Trial Court Opinion, 3/6/2012, at 3.

2 physical faculties were impaired such that he could not safely operate a motor vehicle; (3) the verdict was against the weight of the evidence; and (4) the court erred in sentencing Verdekal in accordance with 75 Pa.C.S. 3804(d) when he obtained a drug and alcohol evaluation prior to sentencing in an unrelated matter. See Verdekal s Brief at 1. 2 After a thorough review of the record, the parties briefs, and the applicable law, we affirm. The trial court set forth the facts in this case as follows: At the Pretrial Hearing conducted on September 29, 2010, [Military Police] Officer Charles Agee (hereafter Agee ) testified that he had served as a police officer at the Fort Indiantown Gap Military Reservation for ten years. On January 7, 2010 at about 12:50 a.m., Agee encountered a pick-up truck driving on Fisher Avenue within the Fort Indiantown Gap base. Agee testified that the vehicle crossed the centerline of the roadway and then drifted from one side of the lane to the other. He also observed the pick-up truck jerk back more to the center of the lane. Agee saw the pick-up truck turn into a parking lot within Area 11 of the base. Agee described Area 11 as containing warehouses, shops, offices and a weapons storage facility. All of the facilities located in Area 11 were closed at the time [Verdekal] drove within the parking lots of that area. Agee stated that it was very unusual for vehicles to be located in the parking lot of Area 11 in the early morning hours. After proceeding through a parking lot, the pick-up truck pulled between two buildings until it arrived near a warehouse. Agee described the warehouse as a weapons of mass destruction building and compound. He stated that the building housed a military civilian support team tasked with the responsibility to respond to the discharge of a weapon of mass 2 Based on the nature of Verdekal s arguments, we have rearranged them for ease of reference

3 destruction or other natural disaster. This building contained classified information and classified security equipment. Agee initiated a traffic stop of this vehicle as a result of what he deemed suspicious activity. After effectuating the traffic stop, Agee discovered that [Verdekal] was the operator of the pick-up truck. Agee later concluded that [Verdekal] was intoxicated and an arrest for Driving Under the Influence of Alcohol was effectuated. Trial Court Opinion, 3/6/2012, at 4-5 (record citations omitted; capitalization removed). The court further expounded on the events following the stop in a subsequent opinion: When Officer Agee approached and was standing outside the vehicle talking to [Verdekal], he detected a strong smell of alcohol on [Verdekal] s breath. Despite the fact that Officer Agee was upwind from [Verdekal], he detected an in your face odor of alcohol. Officer Agee also noticed that [Verdekal] s pupils were dilated, another indicator that a person is under the influence of alcohol. Officer Agee administrated field sobriety tests to [Verdekal]. During the walk-and-turn test, [Verdekal] was swaying while standing in the starting position; he then missed most of the heel-to-toe steps and nearly fell over when turning around. When performing the one-leg stand, [Verdekal] had to put his foot down more than three times. He also had to raise his arms to try to maintain his balance and began to hop on the foot that was still on the ground. Officer Agee ended the test for [Verdekal] s safety. Trial Court Opinion, 1/13/2012, at 3 (record citations omitted). Verdekal filed an omnibus pretrial motion for relief on August 26, 2010, challenging the officer s stop of his motor vehicle. The court held a hearing regarding the motion on September 29, Following the - 3 -

4 hearing, the trial court entered an order denying Verdekal s suppression motion. 3 The matter was initially presented for trial on December 9, This first trial ended with a declaration of a mistrial. After multiple continuances by Verdekal, the case was presented for a second jury trial on June 9, During the jury trial, the Commonwealth played the video from [Officer Agee s cruiser s] dash camcorder. During the video, Officer Agee noted that he could observe [Verdekal] weaving from the right-hand side of the road and then back again to the left-hand side. Officer Agee also noted that the video showed [Verdekal] swaying back and forth as Officer Agee was instructing him on how to perform the walk-and-turn test. It also depicted that [Verdekal] lost his balance during the field sobriety tests. Officer Agee determined, in his professional opinion, that [Verdekal] was under the influence of alcohol and was incapable of the safe operation of a motor vehicle. This determination was based on [Verdekal] s performance on the field sobriety tests, together with the strong odor of alcohol on his breath, and his driving. Officer Agee then placed [Verdekal] under arrest, read Form DL-26 (regarding chemical consent warnings) to [Verdekal] at the scene and requested that he submit to blood tests to determine the amount of alcohol in his system. [Verdekal] refused to submit to blood tests and repeated his refusal upon Officer Agee s second request. [Verdekal] was then placed in handcuffs and transported to the Fort Indiantown Gap police station. Once inside the police station, [Verdekal] was given Form DL-26 to read for himself; however, he again refused to submit to the chemical tests and also refused to sign the consent warning form. During the jury trial, Shawn Verdekal, [Verdekal] s wife (girlfriend at the time of this incident) also testified. Mrs. Verdekal had been present at Moose s LZ and was in the vehicle 3 The order was not docketed until October 4,

5 with [Verdekal] that evening. She testified that she had previously worked as a bartender and had undergone TIPS training and certification through the Pennsylvania Liquor Control Board. 2 Mrs. Verdekal testified that she and [Verdekal] had consumed alcohol (approximately three to four beers) that evening but that she had no concerns about his ability to drive. Mrs. Verdekal admitted that she was not trained in field sobriety tests and that she was probably intoxicated that evening. She admitted that she had been given a portable breath test by the police that evening and that the results indicated that she should not be operating a motor vehicle. Officer Agee testified that Mrs. Verdekal s blood level was sufficiently high that it was not safe to allow her to drive herself home. She was driven back to her office by a police officer. 2 This is a program sponsored by the Pennsylvania Liquor Control Board and is offered to individuals whose employment involves serving alcoholic beverages. It is designed to educate these individuals on how to recognize and deal with visibly intoxicated persons. [Verdekal] also testified at the jury trial. He admitted that he, his wife (then girlfriend), and another couple had been drinking beer from approximately 6:30 or 7:00 that evening until ten to twenty minutes prior to leaving the establishment and stated that he had probably consumed three to four pints of beer during that time period. He testified that he was driving slower than the posted speed limits as a precaution against deer running into the road and because his truck would shift around due to the wind. He also explained that he had headed to Utility Road to stop at the building where he worked in order to pick up some clothing, but did not stop there as he realized that he already had his clothes with him in his vehicle. He further indicated that he had a hip problem which caused him to put his foot down during the field sobriety tests but that he did not explain this to Officer Agee at the time; however, he admitted that his hip probably did not actually impede his performance on the field sobriety tests. [Verdekal] testified that Officer Agee asked him whether [he] had been consuming alcoholic beverages that evening and the amount of alcohol he had consumed but did not question him about the period of time during which his consumption occurred

6 He explained that he refused chemical testing because he was frustrated and wanted to get back to Mrs. Verdekal and he was embarrassed to be in handcuffs in front of her. He stated that he again refused at the police station due to Mrs. Verdekal s presence. Trial Court Opinion, 1/13/2012, at 3-6 (record citations omitted). After deliberations, the jury found Verdekal guilty of DUI. On September 14, 2011, a sentencing hearing was held and the trial court imposed a sentence of five years of intermediate punishment. 4 Verdekal filed timely post-sentence motions, challenging weight and sufficiency, and a motion to modify his sentence. On January 13, 2012, the court entered an order denying Verdekal s post-sentence motions and his motion to modify sentence. This appeal followed. 5 Verdekal first argues that the trial court erred in denying his motion to suppress. Specifically, Verdekal claims the court erred in determining that Officer Agee s stop of his truck was supported by reasonable suspicion or probable cause to believe that he drove in violation of the Pennsylvania Motor Vehicle Code. He states there was no evidence that [he] created a 4 The court ordered that the first 100 days of his sentence was to be served in the Lebanon County Correctional Facility and the subsequent four months were to be spent on house arrest with electronic monitoring. The court stated it did not place him in a correctional facility due to Verdekal s exemplary military history. See Order, 9/14/2011, at 1. 5 On February 22, 2012, the trial court ordered Verdekal to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Verdekal filed a concise statement on February 22, The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 6,

7 safety hazard by crossing the lane dividing lines on possibly two occasions, and weaved within his lane where no vehicles, obstacles or hazardous conditions were present. Verdekal s Brief at Likewise, Verdekal asserts the Commonwealth failed to meet its burden of demonstrating that he was stopped based upon reasonable suspicion for driving under the influence. Id. at 33. He states that the officer s testimony does not support the conclusion that under the existing conditions, Verdekal s departure from his lane of travel demonstrated that he was driving under the influence of alcohol. Moreover, he contends the court erred in finding that the stop was proper based on Verdekal driving on a military base. He refers to Officer Agee s testimony that it was police protocol to stop suspicious vehicles from loitering in areas such as the weapons of mass destruction building on the base. Id. at 36. Verdekal states it was apparent that he was not loitering because he did not delay his activity with idle stops and pauses, he did not remain in an area for no obvious reason, and he did not lag behind. Id. He also argues that the court s reliance on federal case law is misplaced because those cases are distinguishable from the present matter where Officer Agee did not stop him at a checkpoint or a gated area nor was there a sign indicating that the police could stop a vehicle without cause. Our standard when reviewing an order denying a motion to suppress is well-settled: We are limited to determining whether the lower court s factual findings are supported by the record and whether the legal - 7 -

8 conclusions drawn therefrom are correct. We may consider the evidence of the witnesses offered by the Commonwealth, as verdict winner, and only so much of the evidence presented by defense that is not contradicted when examined in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court were erroneous. Commonwealth v. Rowe, 984 A.2d 524, 525 (Pa. Super. 2009). As there is no dispute in this case where both parties and the court agree that the traffic stop in this case constituted an investigative detention because Verdekal was not free to leave but was not under arrest, 6 we apply the following standard: A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. This standard, less stringent than probable cause, is commonly known as reasonable suspicion. In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In making this determination, we must give due weight... to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer. Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008) (citations and quotation marks omitted). [R]easonable suspicion does not require that the activity in question must be unquestionably criminal before 6 See Trial Court Opinion, 3/6/2012, at

9 an officer may investigate further. Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2004). Here, the trial court found Officer Agee possessed reasonable suspicion to justify the stop of Verdekal on the day in question. 7 Specifically, the court opined: There is authority for the proposition that when a vehicle is inside a military installation, it can be stopped by Military Police for inspection with or without cause. See United States v. Harris, 2007 WL (E.D. Cal. 2006). [8]... Fort Indiantown Gap is a military base that contains the headquarters of the Pennsylvania National Guard. Fort Indiantown Gap contains an extensive helicopter airfield, acres of training ground and hundreds of buildings, many of which contain military weapons. It is not an exaggeration to say that if weapons and equipment contained at Fort Indiantown Gap are allowed to fall into the wrong hands, the security of this Commonwealth could be significantly jeopardized. Given this fact, we believe that the rationale articulated in [Morgan v. United States, 323 F.3d 776 (9 th Cir. 2003)], [United States v. Jenkins, 986 F.2d 76 (4 th Cir. 1993)], Harris and their progeny should be applied. As recognized by the Federal Court for the Western District of Kentucky, driving and/or loitering at Fort Indiantown Gap differs markedly from traveling on a public 7 See Trial Court Opinion, 3/6/2012, at The trial court also relies on several other federal cases to support its proposition that a military police officer may stop a vehicle on a military base with or without cause: United States v. M.J., 716 F. Supp. 295 (W.D.Ky. 1989), Commonwealth v. Ellis, 15 F.Supp.2d 1025 (D.C. Col. 1998),, United States v. Guarjardo, 2009 WL (E.D. Va. 2009), and United States v. Collins, 2010 WL (E.D. Cal. 2010). See Trial Court Opinion, 3/6/2012, at

10 highway. For this reason only, we conclude that Agee was justified in stopping [Verdekal] s pick-up truck. Trial Court Opinion, 3/6/2012, at 8-9. Alternatively, the court determined that even if traditional rules relating to reasonable suspicion applied, it would still uphold the officer s stop of Verdekal s truck. See id. at 10. In support, the court cited the following evidence: (1) Verdekal was driving in an erratic fashion on the roadway; (2) Verdekal was driving on a military base at 1:00 a.m. at a time when none of the buildings were open; (3) Verdekal drove his vehicle within parking lots within Area 11 of the Fort Indiantown Gap Post which contains weapons storage facilities; (4) Officer Agee testified that he was aware of a major rash of thefts at the base that occurred in January of 2010; and (5) Officer Agee s commander had established a protocol that required the officer to investigate vehicles that are located near classified military buildings. Id. at Following a careful review of the record, we agree with the trial court s alternative approach that under the specific circumstances in this case, there was ample evidence to support the stop of Verdekal s truck where Officer Agee, with over ten years experience, provided specific facts which led him to suspect that criminal activity was afoot based on Verdekal s suspicious driving and the location of his vehicle when he turned into the restricted area. At the suppression hearing, the officer testified to the following:

11 Q. Is it unusual for people to be in that area at that time of day? A. Yes, it is very unusual. Q. Had you been having problems with thefts in that area? A. Yes, we have had - - we ve been having a major rash of thefts throughout the post of anything from kitchen equipment. Currently we re investigating solar panels. Q. The truck you observed pull into Utility Road then pull[ed] in the parking lot; is that correct? A. It pulled between two buildings on I don t remember the name of the road through the parking lot to warehouse. Q. So it pulled behind some buildings? A. Correct. It pulled up [to] the weapons of mass destruction building and compound. Q. At that point you swung around to drive into the parking lot, head back towards [where] the vehicle was driving; is that correct? A. Right. I traveled further west on Clement, made a left-hand turn on Warehouse Road, made a left into the parking lot at which time the truck and I had crossed paths. It s very unusual for somebody to go through that area so I activated my lights to find out why the person was back there.... Q. When the truck pulled into the parking lot what did you think was happening? A. I didn t know what to think exactly. From where the truck and I crossed paths there s only two exits from that parking lot. The exit which the driver of the vehicle took back out to Clement Avenue further down into vehicle part, storage areas. There s brand new tires, transmission, engines that are stored back further back that road at the end of the parking lot. Q. So why did you initiate the traffic stop?

12 A. Suspicious activity. Q. And when you say suspicious activity, you re talking about the weaving in the lane and the driving in the parking lot? A. Accumulation of all the factors. N.T., 9/29/2010, at In examining the totality of the circumstances, the evidence establishes that Verdekal s truck was in military installation area that was closed at that time of the day and it was unusual for someone to drive through that area. It further demonstrates the military police officer s knowledge that the buildings in the part of the base contained various storage areas for weapons and other military parts. Moreover, Officer Agee testified that there had been a series of thefts on the base over the past month. These facts, in conjunction with inferences derived from them, gave rise to a finding of reasonable suspicion of criminal activity, which warranted the investigatory detention. Based on his experience, Officer Agee would have been derelict in his duties had he not stopped Verdekal based on these specific circumstances. 9 Therefore, the trial court did not err in denying Verdekal s motion to suppress because Officer Agee s interaction with 9 See In the Interest of D.M., 727 A.2d 556, 559 (Pa. 1999) (stating police officer would have been derelict in his duties if he had not investigated a situation further where the officer received a radio report of a gunpoint robbery by a group of black males that had taken place and he observed a group of black males walking quickly in the vicinity of the crime)

13 Verdekal, being more than unparticularized suspicion, was constitutionally permissible. Accordingly, Verdekal s first argument fails. In his second argument, he claims there was insufficient evidence to convict him of DUI because the Commonwealth failed to prove that he consumed alcohol to such a degree that it substantially impaired his ability as to the essential acts of safe driving. Verdekal s Brief at 42. He states the Commonwealth relied entirely on speculative, non-specific, circumstantial evidence to support its accusation that Verdekal had imbibed a sufficient amount of alcohol. Id. at 43. He argues that the admission of consuming alcohol and poor performance on two field sobriety tests was not enough to prove he was substantially impaired. Our standard of review for sufficiency claims is well-settled: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [this] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually

14 received must be considered. 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. Commonwealth v. Walsh, 36 A.3d 613, (Pa. Super. 2012) (citation omitted). As stated above, the jury convicted Verdekal of DUI pursuant to 75 Pa.C.S. 3802(a)(1). This crime is defined as follows: 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. 3802(a)(1) (italics in original). In evaluating evidence presented to establish Section 3802(a)(1) violtation, we keep in mind: As this Court noted with respect to the predecessor statute 5 to 3802(a)(1), [t]o establish that one is incapable of safe driving 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. Commonwealth v. Gruff, 2003 PA Super 126, 822 A.2d 773, 781, (Pa. Super. 2003), appeal denied, 581 Pa. 672, 863 A.2d 1143 (2004). [The] meaning [of substantial impairment] is not limited to some extreme condition of disability. Commonwealth v. Griscavage, 512 Pa. 540, 545, 517 A.2d 1256, 1258 (1986). Section 3802(a)(1), like its predecessor, is a general provision and provides no specific restraint upon the

15 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. Commonwealth v. Loeper, 541 Pa. 393, , 663 A.2d 669, (1995). 5 Section 3802(a)(1) became effective on February 1, 2004, and is similar, but not identical, to former 75 Pa.C.S.A. 3731(a)(1), which provided: Driving under influence of alcohol or controlled substance (a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances. (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving. Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006). Moreover, We have made clear that Section 3802 neither specifies nor limits the type of evidence that the Commonwealth may proffer to prove its case under subsection 3802(a)(1). Commonwealth v. Segida, 604 Pa. 103, 985 A.2d 871, 879 (Pa. 2009) (citing Commonwealth v. Kerry, 2006 PA Super 233, 906 A.2d 1237, 1241 (Pa. Super. 2006)). Although the Commonwealth may proffer evidence of alcohol level and/or expert testimony to establish that the defendant had imbibed sufficient alcohol to be rendered incapable of driving safely, it is not required to do so under subsection 3802(a)(1). Id. This is well-established, long-standing law in Pennsylvania. See, e.g., Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872, 875 (Pa. 1959) (under a prior version of the statute, making clear that medical opinion is admissible but not required to prove that a defendant operated a motor vehicle while under the influence of intoxicating liquor). As we stated in Segida, supra at 879, [r]egardless 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

16 consumption of alcohol not on a particular blood alcohol level. Thus, as an important practical consequence of this statutory scheme, a drunk driver who declines to submit to a blood or breath test to determine alcohol level can still be charged with and convicted under subsection 3802(a)(1) if the Commonwealth can prove that he or she drove after imbibing a sufficient amount of alcohol such that he or she was rendered incapable of safely driving. Commonwealth v. Griffith, 32 A.3d 1231, (Pa. 2011). Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving. Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000). Here, the trial court found the following: Officer Agee testified that he observed [Verdekal] s truck driving over the lines and jerking and weaving on the roadway. This testimony was supported by the video from the dashboard camcorder which was played at the jury trial. He was also driving slightly under the posted speed limit.... Once [Verdekal] was stopped, Officer Agee detected [Verdekal] s dilated pupils and an in your face odor of alcohol despite the wind blowing from the officer s back toward [Verdekal]. Both [Verdekal] and his wife testified that [Verdekal] had been drinking beer from approximately 6:30 or 7:00 p.m. until ten or twenty minutes prior to being stopped by Officer Agee. [Verdekal] failed his field sobriety tests and refused several requests for a blood test. This evidence was more than sufficient to sustain the DUI conviction on these grounds. Trial Court Opinion, 1/13/2012, at After careful review of the evidence presented at Verdekal s trial, we detect no error in the trial court s conclusion. The testimony presented was sufficient to prove the elements of DUI beyond a reasonable doubt

17 Verdekal was incapable of safe driving where he admitted he had been drinking on the night of the incident, had bloodshot eyes, smelled of alcohol, failed the field sobriety tests, and refused requests for a blood alcohol test. 10 Therefore, there was sufficient evidence to convict him of DUI. Accordingly, his second argument fails. In Verdekal s third argument, he contends the verdict was against the weight of the evidence because the Commonwealth did not establish that mental and physical faculties were impaired such that he could not safely operate a motor vehicle. Verdekal s Brief at 47. He states the weight of the evidence does not support the DUI conviction due to his ability to safely operate his vehicle and the remarkable lack of [any] sufficiently articulating [] link between the officer s observations and perceptions to Verdekal s impairment. Id. at We conduct our review according to the following standard: A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to 10 See Commonwealth v. Feathers, 660 A.2d 90 (Pa. Super. 1995) (evidence of defendant s glassy eyes, slurred speech, alcohol odor, inability to stand without support, and failed field sobriety tests was sufficient to support her DUI conviction). 11 We note that Verdekal properly preserved his weight claim in a postsentence motion pursuant to Pa.R.Crim.P

18 believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury s verdict is so contrary to the evidence as to shock one s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Thus, the trial court s denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings. Commonwealth v. Coleman, 984 A.2d 998, (Pa. Super. 2009) (citation omitted). Here, the trial court reject Verdekal s weight claim, explaining: Given [Verdekal] s refusal to submit to blood tests, there remained only Officer Agee s observations to determine the level of [Verdekal] s ability to drive in a safe manner. Officer Agee reached his conclusion that [Verdekal] was incapable of safe driving due to his impairment by alcoholic consumption based on his observations of [Verdekal] s driving, his actions, his appearance and his performance of sobriety tests. Officer Agee applied his training and experience in order to determine the significance and meaning of these observations. These observations and conclusions fully established [Verdekal] s inability to safely operate a vehicle. The jury found Officer Agee s testimony to be credible and we find no reason to question that determination. We are not surprised that the jury assigned no apparent weight to the testimony that Mrs. Verdekal, a TIPS-certified individual, chose to ride in the vehicle with [Verdekal]. In our review of the evidence as a whole, this testimony does not tip the scale in [Verdekal] s favor by any means. Mrs. Verdekal admitted that she was also probably intoxicated that evening. In fact, the results of the portable breath test given to Mrs. Verdekal that evening indicated that she herself should not have been operating a motor vehicle. Trial Court Opinion, 1/13/2012, at

19 We discern no abuse of discretion in the trial court s well-reasoned analysis. Verdekal has not demonstrated that the verdict is so contrary that it shocks one s sense of justice. See Coleman, supra. Accordingly, Verdekal s weight claim also fails. Lastly, Verdekal argues the trial court erred in sentencing him in accordance with 75 Pa.C.S. 3804(d). He indicates that he had previously completed a drug and alcohol evaluation by Catholic Social Services that did not recommend additional treatment. Verdekal states the court did not accept this assessment as it had occurred one year prior to his sentencing and was in reference to a prior DUI charge. By way of background, Verdekal was originally scheduled to be sentenced on August 31, Prior to that hearing, he had informed the court that he already had a drug and alcohol evaluation performed by the Catholic Social Services due to a previous DUI and that evaluation did not recommend further treatment. However, the court directed Verdekal to undergo an evaluation for the pre-sentence report. At the time of the August 31 st hearing, Verdekal appeared and presented the prior evaluation. [Verdekal] argued that the evaluation should be used for the current charges because it had been prepared after the current charges had been filed (but prior to conviction) and that the individual performing the evaluation had been aware of these issues. Trial Court Opinion, 1/13/2012, at 6. The court again directed Verdekal to obtain another evaluation

20 Sentencing was rescheduled for September 14, A second evaluation was performed through the Lebanon County Adult Probation Office, which recommended that Verdekal undergo additional treatment. See id. at 6-7. At the subsequent sentencing hearing, it was noted that the standard range for Verdekal s offense was restorative sanctions to an imposition of 9 months incarceration. The mandatory sentence was 90 days to five years imprisonment. 12 As stated above, the court imposed a maximum sentence of five years intermediate punishment pursuant to 75 Pa.C.S Verdekal now contends that there is nothing in the Pennsylvania Motor Vehicle Code that suggests that a drug and alcohol evaluation is casespecific and therefore, the court erred by requiring him to obtain a second drug and alcohol evaluation because this prior assessment should have been utilized in the present case. We are governed by the following: When we address the legality of a sentence, our standard of review is plenary and is limited to determining whether the trial court erred as a matter of law. Commonwealth v. Graeff, 13 A.3d 516, 518 (Pa. Super. 2011) (citation omitted). Section 3804 of the Motor Vehicle Code sets forth the penalties for DUI convictions, which provides, in pertinent part, that if a person who commits 12 The mandatory minimum sentence for this offense was 90 days. A mandatory maximum sentence also applies here. See 75 Pa.C.S. 3804(d), which will be discussed in greater detail, infra, of the statutorily available maximum

21 a second offense, he or she must comply with all drug and alcohol treatment requirements imposed under sections 3814[.] 75 Pa.C.S. 3804(a)(2)(iv). Section 3814 sets forth the requirements for drug and alcohol assessments, in relevant part, as follows: Drug and alcohol assessments. If a defendant is convicted or pleads guilty or no contest to a violation of section 3802 (relating to driving under influence of alcohol or controlled substance), the following apply prior to sentencing:... (2) The defendant shall be subject to a full assessment for alcohol and drug addiction if any of the following subparagraphs apply: (i) The defendant, within ten years prior to the offense for which sentence is being imposed, has been sentenced for an offense under: (A) section 3802[.] 75 Pa.C.S. 3814(2) (emphasis added). If the evaluation determines that a defendant is in need of additional treatment under Section 3814(2), the defendant is subject to extended supervision pursuant to Section 3804(d): (d) Extended supervision of court. --If a person is sentenced pursuant to this chapter and, after the initial assessment required by section 3814(1), the person is determined to be in need of additional treatment pursuant to section 3814(2), the judge shall impose a minimum sentence as provided by law and a maximum sentence equal to the statutorily available maximum. A sentence to the statutorily available maximum

22 imposed pursuant to this subsection may, in the discretion of the sentencing court, be ordered to be served in a county prison, notwithstanding the provisions of 42 Pa.C.S (relating to sentencing proceeding; place of confinement). 75 Pa.C.S. 3804(d) (italics in original). In Commonwealth v. Borovichka, 18 A.3d 1242 (Pa. Super. 2011), the defendant was sentenced to a 90-day to one year term of imprisonment. A drug and alcohol assessment was completed following his sentencing and it indicated the defendant was a person in need of additional treatment, which triggered the mandatory sentence provision set forth in Section 3804(d). Id. at The Commonwealth appealed the judgment of sentence and argued that the trial court erred in sentencing the defendant before a Section 3814 drug and alcohol assessment was completed. This Court agree[d] with the Commonwealth that the court erred by ordering that Borovichka]s drug and alcohol evaluation occur after sentencing, when section 3814 clearly mandates that drug and alcohol assessments occur before sentencing under section The legislature, by requiring the evaluations to take place before sentencing, sought to provide the court with the information necessary to answer two questions: (1) the extent of the defendant s involvement with alcohol or other drug, and (2) what type of sentence would benefit the defendant and the public. See 75 Pa.C.S.A Id. at This Court concluded that without the information necessary to craft a sentence to meet Borovichka s individual needs, the trial court committed an error of law and the sentence was improper. Turning to the present matter, the trial court found the following:

23 The evaluation proffered by [Verdekal] was performed in response to the DUI charge for which he was sentenced in June It was over one year old at the time of the sentencing for the current charges and was prepared prior to his conviction on the present DUI charge. This evaluation was not based on sufficient information of [Verdekal] s current circumstances. Like the situation in Borovichka, the lack of a current evaluation deprived the Court of a complete base of information upon which to design the most appropriate sentence for the current charges. Under the above statutory provisions, the Court was required to order and [Verdekal] was required to submit to a full drug and alcohol evaluation for the pre-sentence report required in this case. It was encumbent on us to impose a period of extended supervision under Section 3804[(d)] due to the recommendation of additional treatment and we did not err in doing so. Trial Court Opinion, 1/13/2012, at 17 (footnote omitted). We agree with the trial court s determination. As a matter of law, the trial court complied with the mandates of Section 3814 to require Verdekal to undergo a full assessment for his new DUI conviction. This was necessary to address Verdekal s circumstances as to his present involvement with alcohol and which sentence would benefit him and the public. As it is quite evident, an individual s circumstances can change over a period of time and therefore, the statute requires that an assessment be completed when one is convicted of a DUI offense. Moreover, to the extent that Verdekal argues the court should have considered his prior assessment, this claim belies the record as it is clear that the trial court did review the prior evaluation and found it to be not credible. See N.T., 8/31/2011, at 8; N.T., 9/14/2011 at 7. Therefore, Verdekal s final argument is unavailing. Judgment of sentence affirmed