J-A22035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NATHAN RICHARD WILSON,

                            Appellant                No. 2117 MDA 2014


             Appeal from the Judgment of Sentence August 4, 2014
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0004392-2013


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 17, 2015

        Appellant, Nathan Richard Wilson, appeals from the judgment of

sentence imposed after his conviction, following a jury trial, of driving under

the influence (DUI) (general impairment), second offense; DUI (controlled

substance), second offense; DUI (controlled substance combination alcohol

and drug), second offense; failure to obey traffic control devices; and

endangering the welfare of a child.1 We affirm.

        We take the following facts and procedural history from the trial

court’s February 6, 2015 opinion and our own independent review of the

record.    On May 6, 2013, at approximately 11:40 p.m., Penn Township
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S.A. §§ 3802(a)(1), (d)(2), (3), 3111(a), and 18 Pa.C.S.A. §
4304(a)(1), respectively.
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Police Officer Joseph O’Brien initiated a traffic stop when a gray Toyota

Camry made an illegal left turn and ignored “Do Not Enter” and “No Left

Turn” signs. Once Officer O’Brien stopped the vehicle, Appellant, the driver,

stumbled and almost fell out of it.            Officer O’Brien ordered Appellant back

into the car. Upon approaching, Officer O’Brien detected an odor of alcohol,

and observed a female passenger in the front seat and an infant in a car

seat in the rear.      Appellant exhibited slow and slurred speech, his eyes

seemed heavy, he admitted to consuming beer earlier in the evening, and he

performed poorly on field sobriety tests.            Penn Township Police Sergeant

Jedadiah Shearer arrived on the scene and conducted the Romberg balance

test on Appellant.       Sergeant Shearer believed that Appellant was on a

depressant.

        The police arrested Appellant and transported him to Hanover General

Hospital for a blood draw.         After receiving Miranda2 warnings, Appellant

admitted to taking several pills: Aleve; Xanax; and an unknown yellow pill,

later determined to be headache medicine. He remained silent for over ten

minutes and then refused to have his blood drawn.

        On July 25, 2013, the Commonwealth filed an information charging

Appellant with failing to obey traffic control devices, endangering the welfare




____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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of a child, and three counts of DUI. Appellant’s first jury trial resulted in a

mistrial on March 7, 2014.

       On June 5, 2014, another jury convicted Appellant of all five counts

and the trial court ordered a pre-sentence investigation. On August 4, 2014,

the court sentenced Appellant to an aggregate term of not less than six

months’ nor more than twelve months’ incarceration, a $2,500.00 fine, and

one hundred hours of community service.3         Appellant timely filed post-

sentence motions on August 6, 2014.

       The court denied all but one of Appellant’s post-sentence motions on

September 26, 2014.4          On December 12, 2014, Appellant requested an

order denying the remaining post-sentence motion and filed a notice of

appeal.    On December 18, 2014, the court denied the remaining post-

sentence motion by operation of law and ordered Appellant to file a Rule

1925(b) statement.5

____________________________________________


3
  The court originally sentenced Appellant on July 29, 2014. (See N.T.
Sentence, 7/29/14, at 8-9). On August 4, 2014, at the Commonwealth’s
request, the court amended the sentence to merge the sentences for counts
one (DUI: general impairment) and four (DUI: controlled substance) into the
sentence for count five (DUI: controlled substance combination alcohol and
drug). (See Motion to Amend Sentence, 8/01/14; Order, 8/04/14).
4
   The court denied Appellant’s post-sentence motions on weight and
sufficiency of the evidence; and took under advisement endangering welfare
of a child. (See N.T. Post-Sentence Motion, 9/26/14, at 5-6).
5
  Appellant filed his notice of appeal while his post-sentence motion was
pending. However, because the court subsequently entered the final order,
(Footnote Continued Next Page)


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      Appellant timely filed his Rule 1925(b) statement on January 8, 2015.

See Pa.R.A.P. 1925(b).           The court entered its Rule 1925(a) opinion on

February 6, 2015. See Pa.R.A.P. 1925(a).

      Appellant raises the following questions for our review:

      1.     Did the Commonwealth, as a matter of law, provide
      insufficient evidence to meet its burden of proof in regard to
      Count 3—Endangering the Welfare of Children where [Appellant]
      did not exhibit unsafe driving as the only violation committed
      was one that Sergeant Shearer had observed from several other
      unimpaired motorists, and the Commonwealth could not
      establish any other tangible indicia of unsafe driving that would
      have violated a duty of care or created a substantial risk of
      injury to the child who was fastened in a child’s safety seat in
      the rear of the car[?]

      2.   Whether the trial court’s verdict of guilt as to Count 3—
      Endangering the Welfare of Children was against the weight of
      the evidence as [Appellant] had the child in a car safety seat,
      drove in an unimpaired manner, and neither officer could qualify
      how [Appellant] was impaired due to alcohol alone, a drug or
      combination of drugs, or alcohol and a drug or combination of
      drugs[?]

      3.   Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A.
      §3802(a)(1)—DUI: General Impairment was against the weight
      of the evidence as the [o]fficers were unable to link any
      observations of unsafe driving to [Appellant] and the
      Commonwealth’s evidence did not establish that [Appellant’s]
      mental and physical faculties were impaired by alcohol to such a
      degree that he could not safely operate a motor vehicle[?]

      4.    Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A.
      §3802(d)(2)—DUI: Controlled Substance—Impaired Ability was
      against the weight of the evidence as the [o]fficers were unable
                       _______________________
(Footnote Continued)

the notice of appeal is deemed filed on the same date as the final order.
See Pa.R.A.P. 905(a).



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J-A22035-15


       to link any observations of unsafe driving to [Appellant] and the
       Commonwealth’s evidence did not establish that [Appellant’s]
       mental and physical faculties were impaired by a drug or
       combination of drugs to such a degree that he could not safely
       operate a motor vehicle[?]

       5.    Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A.
       §3802(d)(3)—DUI:      Controlled    Substance—Combination        of
       Alcohol and a Drug or Combination of Drugs was against the
       weight of the evidence as the [o]fficers were unable to link any
       observations of unsafe driving to [Appellant] and the
       Commonwealth’s evidence did not establish that [Appellant’s]
       mental and physical faculties were impaired by alcohol and a
       drug or combination of drugs to such a degree that he could not
       safely operate a motor vehicle[?]

(Appellant’s Brief, at 1-2).

       In his first issue, Appellant challenges the sufficiency of the evidence

to sustain an endangering the welfare of a child conviction. (See id. at 28-

39).     He argues that “[w]ithout first establishing any evidence of

impairment, the Commonwealth could not possibly have met its burden . . .

[and] wishes to impose liability upon [him] based solely upon the fact that

he was driving while intoxicated.” (Id. at 29). Further, he “suggests that a

defendant does not automatically endanger a child knowingly when [he]

operate[s] a vehicle under the influence of an intoxicating beverage without

more.” (Id. at 37). We disagree.

       It is well-settled that:

              In challenges to the sufficiency of the evidence, our
       standard of review is de novo, however, our scope of review is
       limited to considering the evidence of record, and all reasonable
       inferences arising therefrom, viewed in the light most favorable
       to the Commonwealth as the verdict winner.           Evidence is
       sufficient if it can support every element of the crime charged
       beyond a reasonable doubt. The evidence does not need to

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J-A22035-15


      disprove every possibility of innocence, and doubts as to guilt,
      the credibility of witnesses, and the weight of the evidence are
      for the fact-finder to decide. We will not disturb the verdict
      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.

Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (citations

and quotation marks omitted).

      As charged in this case, “[a] parent, guardian or other person

supervising the welfare of a child under 18 years of age . . . commits an

offense if he knowingly endangers the welfare of the child by violating a duty

of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).

            The statute does not require the actual infliction of
      physical injury. Nor does it state a requirement that the child or
      children be in imminent threat of physical harm. Rather it is the
      awareness by the accused that [his] violation of [his] duty of
      care, protection and support is practically certain to result in the
      endangerment to [the] children’s welfare, which is proscribed by
      the statute.

            Further, a person must take affirmative, reasonable steps
      to protect the child:

                  The affirmative performance required by
            [Section] 4304 cannot be met simply by showing any
            step at all toward preventing harm, however
            incomplete or ineffectual. An act which will negate
            intent is not necessarily one which will provide a
            successful outcome. However, the person charged
            with the duty of care is required to take steps that
            are reasonably calculated to achieve success.
            Otherwise, the meaning of the duty of care is
            eviscerated.

Commonwealth v. Winger, 957 A.2d 325, 329-30 (Pa. Super. 2008)

(citations and quotation mark omitted; emphasis in original). The Court in



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Winger    found   a   grossly   intoxicated   driver   properly   charged   with

endangering the welfare of a child where a car seat secured the child and

there was no evidence of erratic driving. See id. at 331.

     Here, Officer O’Brien initiated a traffic stop when Appellant made an

illegal left turn and ignored “Do Not Enter” and “No Left Turn” signs. (N.T.

Trial, 6/05/14, at 67; see id. at 69-70). Appellant stumbled and almost fell

out of the vehicle when Officer O’Brien ordered him back into the car. (See

id. at 71).   Officer O’Brien detected an odor of alcohol and observed an

infant in a car seat. (See id. at 72). Appellant exhibited slow and slurred

speech, his eyes seemed heavy, he admitted to consuming beer earlier in

the evening, and he performed poorly on field sobriety tests. (See id. at 72,

76-77). Sergeant Shearer conducted the Romberg balance test on Appellant

and believed that he was on a depressant. (See id. at 129-30). Appellant

admitted to taking several pills: Aleve; Xanax; and an unknown yellow pill,

later determined to be headache medicine. (See id. at 83-84, 131).

     Accordingly, viewing the evidence in the light most favorable to the

Commonwealth, we conclude that it was sufficient to sustain the jury’s

conviction of endangering the welfare of a child. See Forrey, supra at 897;

Winger, supra at 329-30.




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J-A22035-15



       In his remaining four issues, Appellant challenges the weight of the

evidence. (See Appellant’s Brief, at 39-48).6 These issues lack merit.

              Our standard of review is well-settled:

              The weight given to trial evidence is a choice for the
       factfinder. If the factfinder returns a guilty verdict, and if a
       criminal defendant then files a motion for a new trial on the
       basis that the verdict was against the weight of the evidence, a
       trial court is not to grant relief unless the verdict is so contrary
       to the evidence as to shock one’s sense of justice.

             When a trial court denies a weight-of-the-evidence motion,
       and when an appellant then appeals that ruling to this Court, our
       review is limited. It is important to understand we do not reach
       the underlying question of whether the verdict was, in fact,
       against the weight of the evidence. We do not decide how we
       would have ruled on the motion and then simply replace our own
       judgment for that of the trial court.        Instead, this Court
       determines whether the trial court abused its discretion in
       reaching whatever decision it made on the motion, whether or
       not that decision is the one we might have made in the first
       instance.

             Moreover, when evaluating a trial court’s ruling, we keep
       in mind that an abuse of discretion is not merely an error in
       judgment. Rather, it involves bias, partiality, prejudice, ill-will,
       manifest unreasonableness or a misapplication of the law. By
       contrast, a proper exercise of discretion conforms to the law and
       is based on the facts of record.




____________________________________________


6
  We note that in his second issue, Appellant states he “believes that the
established case law clearly goes to the sufficiency of the evidence.
However, out of an abundance of caution he argues in the alternative that
the verdict was against the greater weight of the evidence.” (Appellant’s
Brief, at 39).    In his third, fourth, and fifth issues, Appellant argues
sufficiency rather than weight. (See id. at 40-48).



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J-A22035-15


            . . . [W]e note that the jury is free to believe all, part, or
      none of the evidence and to determine the credibility of the
      witnesses. . . .

Commonwealth v. Ferguson, 107 A.3d 206, 212-13 (Pa. Super. 2015)

(citations and quotation marks omitted).

      In his second issue, Appellant claims that “[t]he trial court’s verdict of

guilt was against the weight of the evidence because the Commonwealth did

not establish that [he] [e]ndangered the [w]elfare of a [c]hild.” (Appellant’s

Brief, at 39).   Specifically, he argues that “[t]he [] only support for this

offense was that [he] was charged with DUI while a minor was . . . properly

fastened in a child’s safety seat . . . [and] there was nothing to suggest

erratic or reckless driving.” (Id.). We disagree.

      As previously discussed, endangering the welfare of a child does not

require evidence of erratic driving.       See Winger, supra at 329-30.

Moreover, our independent review of the record reflects that there was

ample evidence for the jury to convict Appellant of endangering the welfare

of a child.

      Accordingly, we discern no abuse of discretion in the trial court’s

determination that the jury’s verdict did not shock one’s sense of justice.

See Ferguson, supra at 212-13. Therefore, Appellant’s second issue lacks

merit.

      In his third, fourth, and fifth issues, Appellant claims that his

convictions of DUI were against the weight of the evidence because the

evidence did not establish that his mental and physical faculties were


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impaired to prevent him from safely operating a motor vehicle.            (See

Appellant’s Brief, at 40-48).     Specifically, he asserts there was a “lack of

sufficiently articulating any link between the observations and perceptions

Officer O’Brien and Sergeant Shearer made to [Appellant’s] impairment.”

(Id. at 42; see id. at 43, 46). We disagree.

      Our independent review of the record reflects that Officer O’Brien

observed Appellant disregard traffic signs and make an illegal left turn, (see

N.T. Trial, 6/05/14, at 67, 69-70), and “stumble[], almost [fall] out of the

car[.]”   (Id. at 71).     Both Officer O’Brien and Sergeant Shearer testified

about Appellant’s poor performance on field sobriety tests, and their

observations of his slow and slurred speech, and heavy eyes. (See id. at

71, 76-77, 128-30).        Therefore, there was ample evidence for the jury to

convict Appellant of three counts of DUI.

      Accordingly, we discern no abuse of discretion in the trial court’s

determination that the jury’s verdict did not shock one’s sense of justice.

See Ferguson, supra at 212-13. Therefore, Appellant’s third, fourth, and

fifth issues lack merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2015


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