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2025 PA Super 181
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LUBERTO :
:
Appellant : No. 1238 EDA 2024
Appeal from the Judgment of Sentence Entered April 5, 2024
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000485-2022
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
OPINION BY BECK, J.: FILED AUGUST 22, 2025
Anthony Luberto (“Luberto”) appeals from the judgment of sentence
entered by the Pike County Court of Common Pleas (“trial court”) following his
convictions of one count each of driving under the influence (“DUI”) – general
impairment as a second offense and DUI – high rate of alcohol as a second
offense.1 Luberto challenges the sufficiency of the evidence to support his
convictions, as well as discretionary aspects of his sentence. We affirm in
part, reverse in part, and remand for resentencing.
On June 18, 2022, at 6:22 p.m., Trooper Christopher Kolosinsky
received a call from a towing company about a single vehicle accident on
German Valley Road in Greene Township, Pike County. Trooper Kolosinsky
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1), (b).
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arrived at the scene at 7:20 p.m. and observed a vehicle off the road and in
a field with no driver in the vehicle. Trooper Kolosinsky ran the registration
of the vehicle and found that Luberto was the owner. He then found Luberto
in a parking lot close to the location of the vehicle. Trooper Kolosinsky spoke
with Luberto and found that he exhibited signs of intoxication, including an
odor of alcohol emanating from him, slurred speech, swaying side to side,
unable to stand upright, and had bloodshot eyes. Trooper Kolosinsky
attempted to run field sobriety tests on Luberto but realized that continuing
them would be unsafe. Accordingly, Trooper Kolosinsky arrested Luberto and
took him to the barracks to conduct a breathalyzer test.
At the barracks, Trooper Kolosinsky observed Luberto for twenty
minutes and ensured that he did not drink or eat anything before the test.
The breathalyzer was turned on at 7:40 p.m. Trooper Megan Herrmann then
input Luberto’s information into the machine at 7:56 p.m. and subsequently
performed two breathalyzer tests at 8:01 p.m. and 8:02 p.m., respectively.
The results indicated a blood alcohol content (“BAC”) of 0.133 and 0.130
respectively. Subsequently, the Commonwealth charged Luberto with two
counts of driving under the influence and one count each of careless driving
and driving vehicle at safe speed.
Luberto waived his right to a jury trial, and the case proceeded to a
bench trial, following which the trial court found him guilty of the two counts
of DUI and not guilty of careless driving and driving vehicle at safe speed. The
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trial court found that this was his second offense because he had previously
received accelerated rehabilitative disposition (“ARD”) for a prior DUI, and
thus imposed the mandatory minimum sentence of thirty days to six months
in prison for the DUI conviction under section 3802(b) as a second offense,
plus costs and fines. It did not impose a separate sentence under section
3802(a)(1),2 finding the conviction merged with Luberto’s conviction under
section 3802(b). Luberto filed a timely appeal. 3
Luberto raises four questions for our review:
1. Whether the trial court erred in finding that the Commonwealth
established that testing was done within two hours of the
accident?
2. Whether the trial court erred in finding that the Commonwealth
produced sufficient evidence to establish that the required
twenty-minute observation period was completed prior to
testing?
2 The trial court noted, though, that Luberto’s convictions under both section
3802(a)(1) and (b) were his second DUI offenses.
3 On October 11, 2024, Luberto electronically filed a brief that did not include
the trial court opinion, or the 1925(b) statement, and he failed to file a
reproduced record. Further, Luberto failed to file paper copies of the brief.
On December 11, 2024, the Commonwealth filed an application to dismiss the
appeal on these bases. Luberto did not file a response, and this Court granted
the Commonwealth’s application to dismiss based on his failure to file paper
copies of the brief. On February 4, 2024, Luberto filed a motion to reinstate
appeal and sent paper copies of his brief to this Court. We granted the motion
but deferred the Commonwealth’s application to dismiss based on the failure
to provide a reproduced record or append copies of the Rule 1925(b) concise
statement and Rule 1925(a) opinion to his brief. As the record is complete
and includes the concise statement and trial court opinion, we decline to
dismiss on those grounds and deny the Commonwealth’s application.
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3. Whether the trial court erred in finding that the Commonwealth
produced sufficient evidence to establish that [Luberto] was
the operator of the subject vehicle?
4. Whether the trial court erred in finding that this incident
constitutes a second offense for sentencing purposes?
Luberto’s Brief at 7 (questions reordered for ease of disposition).
Sufficiency of the Evidence
Testing
Luberto claims that there was insufficient evidence to convict him of DUI
under section 3802(b) because there was nothing to establish that the BAC
tests were conducted within two hours of the accident, as required by law.
Luberto’s Brief at 15-16. He contends that because the troopers did not know
when the accident occurred, they could not prove that the tests were done
within two hours of when the vehicle was last operated. Id. at 16.
Our standard of review for sufficiency claims is well settled:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to
the Commonwealth as verdict winner, were sufficient to prove
every element of the offense beyond a reasonable doubt. [T]he
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. It is within the
province of the [factfinder] to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the offense by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgement for that of the
[factfinder].
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Commonwealth v. Rosario, 307 A.3d 759, 764-65 (Pa. Super. 2023)
(citation omitted).
Section 3802(b) states the following:
(b) High rate of alcohol.--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 at least 0.10%
but less than 0.16% 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(b).
To be found guilty under section 3802(b), “the Commonwealth must
prove: (1) [a]ppellant was driving, operating, or in actual physical control of
the movement of a vehicle, and (2) [a]ppellant’s BAC was … at least 0.10%
but less than 0.16% within two hours of driving, operating, or being in control
of the vehicle.” Commonwealth v. Haight, 50 A.3d 137, 141 (Pa. Super.
2012); see also Commonwealth v. Segida,
985 A.2d 871, 879 (Pa. 2009)
(“The necessity for the two hour time limit in subsections 3802… (b) … is
grounded in the practical impossibility either of measuring blood alcohol level
precisely at the time of driving or of calculating the exact blood alcohol level
at the time of driving from a single blood alcohol measurement taken at some
point in time after driving.”). The Commonwealth may prove its case through
circumstantial evidence. Commonwealth v. Starry,
224 A.3d 312, 318 (Pa.
2020).
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Trooper Kolosinsky testified he received a call at 6:22 p.m. from a
towing company about a single-car accident that had occurred in a field. N.T.,
5/09/2024, at 11, 20. He stated that he arrived at the scene at 7:20 p.m.
Id. at 11, 28. After identifying Luberto as the owner of the vehicle and
performing sobriety tests, Trooper Kolosinsky transported him back to the
barracks and conducted an observation period that began at 7:40 p.m. 4 Id.
at 28. Importantly, Trooper Kolosinsky testified that he did not know when
the crash had occurred, and there was no other evidence presented to answer
that question. Id. at 28-29.
Trooper Herrmann testified that she put Luberto’s information into the
breathalyzer machine at 7:56 p.m., but that the first test did not commence
until 8:01 p.m., and the second test occurred at 8:02 p.m. Id. at 35-36. She
further testified that the machine would not operate unless the full twenty-
minute observation period had elapsed. Id. at 35, 40. She stated that
Luberto’s BAC levels were .133 and .130. Id. at 37.
The trial court found there was sufficient evidence to establish that the
test occurred within two hours of Luberto driving:
The samples were drawn approximately one hour and forty
minutes after the call reporting the indecent was received. The
vehicle had not been moved prior to Trooper Kolosinsky’s arrival.
[Luberto] was still near the scene of the accident when Trooper
4 A person being breathalyzed “shall be kept under observation by a police
officer or certified breath test officer for at least twenty minutes prior to the
administration of the test.” 67 Pa. Code § 77.24. During the observation
period, “the person may not have ingested alcoholic beverages or other fluids,
regurgitated, vomited, eaten or smoked.”
Id.
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Kolosinsky arrived. There was no evidence to suggest that
[Luberto] had imbibed alcohol after the accident and his BAC
remained zero point one three zero at the time the breathalyzer
samples were taken. We find that the totality of the circumstances
and circumstantial evidence presented supported the conclusion
that the accident had occurred within two hours of the
breathalyzer samples being taken.
Trial Court Opinion, 6/28/2024, at 6.
We respectfully disagree with the trial court and find that the evidence
adduced at trial was insufficient to support Luberto’s conviction of DUI under
section 3802(b). Although the testing occurred one hour and forty minutes
after law enforcement was made aware of the accident, the Commonwealth
presented no evidence as to when the accident occurred or that Luberto drove,
operated, or was in actual physical control of the vehicle within two hours of
the breathalyzer test. In fact, the Commonwealth presented no evidence
establishing a timeline of events. Trooper Kolosinsky admitted he did not
know when the accident occurred and only stated that he arrived at the scene
approximately one hour after receiving the call from the towing company
about the accident. In the absence of any evidence—direct or circumstantial—
that Luberto’s BAC was between 0.10% and 0.16% within two hours after he
drove, operated, or was in actual physical control of the vehicle, we are
constrained to reverse Luberto’s conviction under section 3802(b). 5
Operation of the Vehicle
5 Based upon this conclusion, we need not address Luberto’s second claim
concerning the length of time that elapsed during the observation period
before his breathalyzer test. See Luberto’s Brief at 16-18; supra note 4.
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Luberto further contends that there was insufficient evidence to prove
that he was driving the vehicle before the accident. Luberto’s Brief at 12-15.
He argues Trooper Kolosinsky never saw him behind the wheel before the
accident and was only able to identify him as the owner of the vehicle. Id. at
13-14. He therefore concludes that he should not have been convicted of DUI
under section 3802(a)(1). Id. at 12.
Section 3802(a)(1) states:
(a) General impairment. –
(1) 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).
To be found guilty under section 3802(a)(1), “the Commonwealth
[must] prove the following elements: the accused was driving, operating, or
in actual physical control of the movement of a vehicle during the time when
he or she was rendered incapable of safely doing so due to the consumption
of alcohol.” Commonwealth v. Frey, 263 A.3d 1125, 1128 (Pa. Super.
2020) (citation omitted). “The Commonwealth can establish through wholly
circumstantial evidence that a defendant was driving, operating or in actual
physical control of a motor vehicle.” Commonwealth v. Bathurst,
288 A.3d
492, 501 (Pa. Super. 2023) (citation omitted).
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The types of evidence that the Commonwealth may proffer in a
subsection 3802(a)(1) prosecution include but are not limited to
the following: the offender’s actions and behavior, including
manner of driving and ability to pass field sobriety tests;
demeanor, including toward the investigating officer; physical
appearance, particularly bloodshot eyes and other physical signs
of intoxication; odor of alcohol, and slurred speech. Blood alcohol
level may be added to this list, although it is not necessary and
the two-hour time limit for measuring blood alcohol level does not
apply.
Segida, 985 A.2d at 879.
Trooper Kolosinsky testified that the tow truck operator who called to
report the accident stated that Luberto was the driver and was at a garage up
the road from the accident. N.T., 5/09/2024, at 12. His investigation revealed
that the vehicle was registered to Luberto and matched him to his photograph.
Id. at 14-15, 20. Trooper Kolosinsky found Luberto at the location identified
by the tow truck driver and observed that he was intoxicated upon
approaching him. Id. at 15-19. The trooper described Luberto as “swaying
side to side” as though he was going to fall over while standing. Id. at 15-
16. He also had slurred speech, smelled of alcohol, had bloodshot eyes, and
could not complete the field sobriety tests the trooper attempted to administer
multiple times. Id. at 16-19.
The trial court found sufficient circumstantial evidence identifying
Luberto as having driven the car, noting that there was “no evidence indicating
that anyone other than [Luberto] was driving the vehicle at the time of the
accident, and there was no evidence that [Luberto] had ever denied driving
the vehicle.” Trial Court Opinion, 6/24/2025, at 5.
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Viewing the record in a light most favorable to the Commonwealth, there
was substantial evidence that Luberto was the driver of the vehicle and was
under the influence of alcohol at the time of the accident. Luberto was the
owner of the vehicle, was identified by the tow truck driver as the person who
had driven the car and was nearby the scene of accident when the trooper
arrived and displayed numerous indicia of intoxication. See Segida, 985 A.2d
at 880 (“[An] accident itself constitutes evidence that [a defendant] drove
when he was incapable of doing so safely.”). As such, the evidence is sufficient
to support his DUI conviction under section 3802(a)(1).
Sentencing
Finally, Luberto claims that the trial court erred in sentencing him as a
second time offender because there is no evidence that he had a previous
record. Luberto’s Brief at 18-19. He argues that he cannot be convicted and
sentenced for a second offense DUI absent proof that it was, in fact, his second
offense. Id. at 18.6
We note Luberto couches his argument as a discretionary sentencing
claim; however, it is more properly construed as a challenge to the legality of
his sentence, and we will treat it as such. See Commonwealth v.
6 The sentencing hearing transcript is not included in the certified record.
This Court attempted to locate the transcript to no avail. It is the appellant’s
responsibility to “ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court to
perform its duty.” Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa.
Super. 2006) (en banc). Nonetheless, this does not impede our review of the
sentencing claim raised, and we therefore proceed to address it.
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Seladones, 305 A.3d 83, 85 (Pa. Super. 2023) (“A claim that the court
improperly graded an offense for sentencing purposes implicates the legality
of a sentence.”) (citation omitted); Commonwealth v. Love,
957 A.2d 765,
767 (Pa. Super. 2008) (“a challenge to a sentencing court’s application of a
mandatory sentencing provision … implicates the legality, not the
discretionary, aspects of sentencing.”) (citation omitted); see also
Commonwealth v. Randal,
837 A.2d 1211, 1214 (Pa. Super. 2003) (en
banc) (“challenges to an illegal sentence can never be waived and may be
reviewed sua sponte by this Court.”)
The record reflects that the trial court imposed a mandatory minimum
sentence reserved for second DUI convictions. Sentencing Order, 4/8/2024
at 1; see also Guideline Sentence Form, 4/8/2024. The trial court based its
decision upon its review of the presentence investigation report, which
indicated that Luberto “had received ARD for a DUI charge resulting from an
incident which occurred on August 31, 2013, which was within ten years of
the current offense.” Trial Court Opinion, 6/28/2024, at 8.
During the pendency of this appeal, however, our Supreme Court held
that “a defendant’s previous acceptance of ARD cannot be viewed as the
equivalent of a prior conviction.” Commonwealth v. Shifflett, 335 A.3d
1158, 1175 (Pa. 2025). The Court reasoned that a defendant’s acceptance of
ARD lacks the constitutional protections of a guilty plea or a criminal
proceeding. Id. at 1172-75. As such, the Court held that a prior DUI for
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which the defendant accepted ARD cannot be viewed as a first DUI offense
during sentencing. Id. at 1178. Based upon Shifflett, the trial court thus
erred in sentencing Luberto as a second DUI offender based upon his
acceptance of ARD for a DUI charge in 2013.
We therefore reverse Luberto’s DUI conviction under section 3802(b)
and affirm his conviction under section 3802(a)(1). We remand for
resentencing pursuant to Shifflett, at which the trial court must treat the
instant conviction under section 3802(a)(1) as his first offense. See id. at
1175.
Judgment of sentence affirmed in part and reversed in part. Case
remanded for resentencing. Application to dismiss denied. Jurisdiction
relinquished.
Date: 8/22/2025
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