Com. v. Widel, M.



                                               :        PENNSYLVANIA
               v.                              :
    MICHELLE JOY WIDEL                         :
                      Appellant                :   No. 701 MDA 2020

       Appeal from the Judgment of Sentence Entered February 25, 2020
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0000361-2019


MEMORANDUM BY McCAFFERY, J.:                         FILED OCTOBER 28, 2020

        Michelle Joy Widel (Appellant) appeals from the judgment of sentence

entered in the Schuylkill County Court of Common Pleas, following her bench

trial convictions of, inter alia, 75 Pa.C.S. § 3802(c), driving under the

influence—highest rate of alcohol (DUI .16); 75 Pa.C.S. § 3362(a)(3),

exceeding the speed limit; and 75 Pa.C.S. § 3309(1), failure to operate her

vehicle within the roadway laned for traffic. We vacate in part, affirm in part,

and remand for further proceedings consistent with this memorandum.

        On November 21, 2018, at approximately 7:00 p.m., Appellant was

pulled over after Sergeant Raymond W. O’Donnell observed her to be traveling

at 66 miles per hour in a zone with a posted speed limit of 45 miles per hour.1

N.T. Trial, 1/9/20, at 5-7. Sergeant O’Donnell testified that Appellant was not


1   November 21, 2018 was the Wednesday immediately prior to Thanksgiving.

able to provide a proof of insurance during the stop.2

Id. at 7-8.


testified that she had older insurance cards, but had not printed her most

current insurance card as she was very busy with school at that time.

Id. at 38.

  During the traffic stop, Sergeant O’Donnell saw two wine bottles in

Appellant’s vehicle, one of which was open and approximately half full.

Id. at 7.

   He testified that he smelled alcohol both inside the vehicle and on

Appellant’s person, and saw that Appellant’s eyes were glassy and bloodshot;

he also observed her speech to be slurred.

Id. at 8.

  He administered a

preliminary breath test several times.

Id. at 40-41, 54.

One of the repetitions

of the preliminary breath test showed the presence of alcohol, and Appellant

was arrested.

Id. at 8-9.

Appellant testified at trial that she had consumed

one glass of wine at home, and had then gone to Thanksgiving dinner with

her grandparents, where she consumed approximately two glasses of wine;

her testimony reflected consumption of two to three glasses of wine between

1:00 p.m. and 6:00 p.m.

Id. at 33-34, 39.

       Sergeant O’Donnell asked her to pull her vehicle further off the road so

that it would not be towed. N.T. Trial at 11, 42-43. Appellant testified that

Sergeant O’Donnell aimed his Taser at her while she was moving her car.

Id. at 44.

Sergeant O’Donnell denied having done so.

Id. at 55.

Appellant later

consented to a blood draw, which took place within two hours of when


2 Appellant was initially charged with a violation of 75 Pa.C.S. § 1786(f),
operation of a motor vehicle without required financial responsibility, but that
charge was withdrawn.


Sergeant O’Donnell observed her as she operated her vehicle.

Id. at 11-13.

At trial, Appellant stipulated to the contents of the laboratory report

summarizing an analysis of the blood sample.

Id. at 13.

       On January 9, 2020, Appellant had a bench trial and was convicted of

the above-enumerated offenses.3 N.T. Trial at 61. The trial court imposed a

sentence of six months’ restrictive probation, as part of participation in the

Schuylkill County Intermediate Punishment Program.              Order of Sentence,

2/26/20; Trial Ct. Op., 6/8/20, at 4.4           Appellant filed a timely appeal and

complied with Pa.R.A.P. 1925(b).

       Appellant poses the question presented as follows:

3 Appellant was also convicted of 75 Pa.C.S. § 3802(a)(1) as a first offense;
the trial court determined that this conviction merged with her DUI .16
conviction and therefore she was not sentenced under this subsection of the
DUI statute. See Order of Sentence, 2/26/20 (“Ct 1: Merges”). For the
sentencing impact of this conviction, see 75 Pa.C.S. § 3804(a)(1), specifying
sentencing conditions for a defendant convicted under 75 Pa.C.S. §
3802(a)(1) as a first offense. Appellant was found not guilty of careless
driving, 75 Pa.C.S. § 3714(a), driving a vehicle in careless disregard for the
safety of persons or property.

4 The trial court’s sentencing order specifies that Appellant shall serve a period
of six months’ probation subject to the standard conditions of restrictive
probation, where the first fifteen days will be served as house arrest with
electronic surveillance followed by 45 days of strict supervision and four
months of probation. Order of Sentence, 2/26/20. Appellant was also
sentenced to pay: $12 per day during house arrest, the costs of prosecution,
a $1000 fine, $300 to the Substance Abuse Education Fund, $75 to the MCARE
fund, $50 per month as a supervision fee upon completion of house arrest,
$144 for her speed limit violation, and $102 for her lane violation.

Id. She was further

sentenced to complete DUI Alcohol Safety School, to attend and
complete a CRN evaluation (a form of drug and alcohol assessment), to a 12-
month suspension of her driving privileges, and to 12 months’ use of an
ignition interlock device.

Id. -3-


      Was the evidence presented at trial [ ] legally insufficient to
      support the guilty verdict on [DUI .16] where the
      Commonwealth’s evidence established that [Appellant’s BAC]
      might have been .161, but could also have been as low as .151
      within two hours of her being in actual physical control of a motor
      vehicle and the Commonwealth failed to present testimony as to
      how the uncertainty measurement is calculated and what
      coverage probability means?

Appellant’s Brief at 4.

      This Court must determine whether the Commonwealth’s toxicology

report was sufficient to establish a violation of DUI .16, where the margin of

error encompasses a blood alcohol concentration (BAC) less than .16, however

slightly so. 75 Pa.C.S. § 3802(c) sets forth the elements of DUI .16 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 alcohol concentration in the
      individual’s blood or breath is 0.16% or higher within two hours
      after the individual has driven, operated or been in actual physical
      control of the movement of the vehicle.

75 Pa.C.S. § 3802(c).

      This is a sufficiency argument, and unlike a typical argument disputing

weight or sufficiency of trial evidence where we defer to the factfinder who

was able to experience the testimony in real time and thus was best positioned

to weigh it, Appellant’s argument hinges entirely on the interpretation of a

toxicology report, submitted without testimony.        The arresting officer’s

observations corroborate some level of inebriation, but the Commonwealth

depended on laboratory toxicology testing to establish the level of DUI

conviction, as it must. See, e.g., Commonwealth v. Mongiovi, 

521 A.2d -4-


429, 431 (Pa. Super. 1987) (“The nature of the [DUI] charge . . . requires

the admission of technical evidence.”).

      The trial court opinion concludes that “a fair reading of the [toxicology]

report given Appellant’s driving observed by the Trooper confirms that the

.161 BAC was an accurate finding warranting the imposition of the sentence.”

Trial Ct. Op., 6/8/20, at 3-4.

      Appellant argues that because the Commonwealth did not submit expert

testimony or other evidence establishing beyond a reasonable doubt that her

BAC was .16 or above during the relevant time period, the evidence is

insufficient to sustain the conviction for DUI .16. Appellant’s Brief at 7-8. The

Commonwealth counters that while “[o]f course, there is the possibility that

the [BAC] may have been less than [.16] based on the lab report . . . [t]he

Commonwealth need only present the trial court enough evidence to find that

the elements of a crime exist.” Commonwealth’s Brief at 4.

      Our standard of review when evaluating a sufficiency of the evidence

claim is as follows:

      In determining whether the evidence was sufficient to support a
      defendant’s conviction, we must review the evidence admitted
      during the trial along with any reasonable inferences that may be
      drawn from that evidence in the light most favorable to the
      Commonwealth as the verdict winner. If we find, based on that
      review, that the jury could have found every element of the crime
      beyond a reasonable doubt, we must sustain the defendant’s

Commonwealth v. Janda, 

14 A.3d 147

, 164 (Pa. Super. 2011) (citation

omitted, emphasis added). In this scenario, even applying the “light most


favorable” aspect of our standard does not alter the fact that a margin of error

is a mathematical certainty, a fixed number range that is not altered

regardless of favorable lighting.

       The laboratory report reads, in pertinent part, as follows:

       Positive Findings:

       Compound             Result                 Units       Matrix Source

       Ethanol              161 ± 10               mg/dL       001 – Blood

       [BAC]                0.161 ± 0.01           g/100 mL    001 – Blood

       Quantitative results are reported as Result +/- Uncertainty of
       Measurement (UM). Ethanol results are reported at a coverage
       probability of 99.73%; all other analytes are reported at a
       coverage probability of 95.45%.

NMS Labs Toxicology Report, Commonwealth Exh. 4, at 1.5                      This report

indicates that the laboratory is 99.73% sure that its stated result is within 10

mg/dL, or 0.01 g/100 mL, of Appellant’s actual BAC as expressed in the

sample tested; that is, it is quite sure that the BAC in the sample was between

.151 and .171.

       Mongiovi makes clear that factfinders must rely on technical evidence

when applying our DUI statute, which uses BAC levels to establish tiers of

severity of the infraction. 

Mongiovi, 521 A.2d at 431

; 75 Pa.C.S. § 3802.

Because     factfinders    impart    culpability    and    courts   impose   mandatory

5Though the individual who prepared the report certified therein that they
would be available to testify at trial, see NMS Labs Toxicology Report,
Commonwealth Exh. 4, at 1, there was no such testimony at trial and
Appellant stipulated to the report itself.


sentencing options based on these tiers, it is vital that factfinders understand

the toxicology evidence, its strengths, and its limitations. The very power of

statistical evidence can become its undoing if it is misunderstood. If this case

had gone to a jury and they had correctly understood the lab report’s self-

reported coverage probability of 99.73%, but not understood how to apply its

uncertainty of measurement ranges, that jury might have made the same

error that the Commonwealth and the trial court seem to have made here.

See N.T. Trial, 56-59 (reflecting confusion as to whether the uncertainty of

measurement ranges encompassed .151-.171 or .160-.162).

      Our courts have been diligent in ensuring that evidence incorporating

statistical probabilities is reliable and meets all standards of admissibility for

scientific evidence. See, e.g., Commonwealth v. Blasioli, 

713 A.2d 1117

(Pa. 1998) (DNA match evidence establishing that the probability of a random

occurrence in the general population of a DNA profile matching both

defendant’s and the crime sample was one in 10 billion was properly

admitted).   However, if factfinders do not understand how to apply that

evidence, its value is greatly diminished and fundamental rights belonging to

defendants and the Commonwealth may be exposed to unnecessary risk.

“Mathematics, a veritable sorcerer in our computerized society, while assisting

the trier of fact in the search for truth, must not cast a spell over him.” People

v. Collins, 

438 P.2d 33

, 33 (Cal. 1968) (reversing conviction obtained with

shoddy statistical evidence).


       While most civil trials are decided by a “more probable than not”

standard6, a criminal conviction must be secured by establishing the elements

of the charged crimes beyond a reasonable doubt. In re Winship, 

397 U.S. 358

, 364 (1970). In Commonwealth v. Landis, 

89 A.3d 694

(Pa. Super.

2014), this Court reversed a conviction for DUI .16 “because the blood-alcohol

test result of .164%, which was relied on by the Commonwealth, was subject

to a 10% margin of error and there was no further evidence to sustain the

jury’s finding that [the defendant’s BAC] was .16% or above within two hours

of driving.”

Id. at 696.

       The Landis Court reasoned as follows:

       In sum, the trial record did not contain a reasoned basis for
       accepting the specific reading of .164% as either accurate or
       precise. There was no support for a finding that the reading
       registered by the [blood sample testing] machine was any more
       reliable than the possible blood-alcohol levels within the 10%
       margin of error.     Moreover, since there was no direct or
       circumstantial evidence regarding the possible applications of the
       10% margin of error, the trial evidence required the jury to
       speculate that [the defendant’s] actual blood alcohol content was
       .16% or higher within two hours of driving. Such speculation
       defies the requirement that the [finder of fact] find all facts
       necessary for a conviction beyond a reasonable doubt.

Landis, 89 A.3d at 701

(emphasis added).          The Commonwealth has not

distinguished Landis, and we are bound to apply its reasoning here.          We

conclude the evidence was insufficient to support Appellant’s conviction of DUI


6“In a civil case, the plaintiff must prove his or her claims by a legal standard
called a ‘preponderance of the evidence.’ Preponderance of the evidence
means that a fact is more likely true than not.” 5.00 Burden of Proof and
Preponderance of Evidence, Pa. SSJI (CIV), 5.00.


.16 and vacate that portion of her judgment of sentence.         We affirm

Appellant’s remaining convictions. Moreover, because “our disposition upsets

the overall sentencing scheme of the trial court, we must remand so that the

court can restructure its sentence plan.” Commonwealth v. Thur, 

906 A.2d 552

, 569 (Pa. Super. 2006).

      Judgment of sentence vacated in part and affirmed in part.       Case

remanded for proceedings consistent with this memorandum.        Jurisdiction


Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 10/28/2020

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