Com. v. Brown, O., Com. v. Brown, O. No. 1264 MDA 2016

On Nov. 29, 2014, Officer Ribec stopped Otto A. Brown for traffic violations (late merge, failure to signal, and driving below the speed limit).
At the stop (approx. 2:20 a.m.) Ribec smelled alcohol coming from the vehicle; Brown said he had one beer, was cooperative, coherent, and not slurring.
Brown consented to field sobriety testing; Ribec observed multiple “clues” on the walk-and-turn (5 clues) and one-legged stand (2 clues), described performance as poor but did not explicitly testify that Brown failed the tests.
Brown consented to a blood draw at the judicial center but refused further attempts after two failed venipunctures; he was charged with DUI under 75 Pa.C.S. § 3802(a)(1) (general impairment).
A jury convicted Brown; he was sentenced to 1–4 years (including a mandatory minimum for refusal). After Birchfield, the trial court later found the mandatory-minimum illegal and resentenced, but Brown had filed a timely appeal challenging sufficiency and prosecutorial misconduct.
The Superior Court reversed the conviction for insufficiency of the evidence and ordered Brown discharged; it also stated it would have granted a new trial for prosecutorial misconduct if not reversing on sufficiency grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency — proof of "incapable of safe driving" under § 3802(a)(1)	Commonwealth: Ribec observed alcohol odor, poor performance on sobriety tests, swaying, and invoked nurse/venipuncture refusal; those facts support general impairment.	Brown: Driving was not erratic; odor came from car; coherent, not slurring, only one beer un-timed; officer never said tests were failed or that overall impairment to the required degree existed.	Reversed — evidence insufficient to prove Brown was incapable of safely driving beyond a reasonable doubt; discharge ordered.
Prosecutorial misconduct — inflammatory closing argument	Commonwealth: closing argument was permissible advocacy; curative instruction cured any prejudice.	Brown: Prosecutor called officer a "hero" and suggested Brown would have killed someone absent the stop — unsupported, highly prejudicial, warranting mistrial.	Not reached on merits (decision on sufficiency). Court observed it would have granted a new trial for the misconduct if not reversing on sufficiency grounds.

Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011) (standard for reviewing sufficiency and circumstantial evidence)
Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009) (appellate court may not reweigh evidence)
Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011) (failure of multiple field tests and other signs can support general-impairment DUI)
Commonwealth v. Smith, 831 A.2d 636 (Pa. Super. 2003) (erratic driving plus physical signs and failed tests sustain general-impairment conviction)
Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. 2000) (definition and proof of impairment under § 3802)
Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) (standard of review and related procedural citations)
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007) (trial court's limited authority to correct sentencing orders after notice of appeal)
Commonwealth v. Chmiel, 777 A.2d 459 (Pa. Super. 2001) (prosecutorial misconduct standard: remarks that create fixed bias may require new trial)