J-S14017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NANCY JEANNE EASTMAN,

                            Appellant                No. 893 MDA 2016


           Appeal from the Judgment of Sentence January 20, 2016
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0006625-2014


BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 13, 2017

       Appellant, Nancy Jeanne Eastman, appeals from the judgment of

sentence entered on January 20, 2016, following her conviction of driving

under the influence (“DUI”) pursuant to 75 Pa.C.S. § 3802(d)(3)1.        We

affirm.

       Appellant was charged with three counts of DUI, 75 Pa.C.S. §

3802(d)(1), (2), and (3), all as first offenses, and possession of a small

amount of marijuana, 35 P.S. § 780-113 (a)(31), stemming from an incident

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*
    Retired Senior Judge assigned to the Superior Court.
1
   “The individual is under the combined influence of alcohol and a drug or
combination of drugs to a degree which impairs the individual’s ability to
safely drive, operate or be in actual physical control of the movement of the
vehicle.” 75 Pa.C.S. § 3802(d)(3).
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on August 22, 2014. She was tried at a bench trial on January 20, 2016,

where the Commonwealth described the evidence as follows:

        On August 22nd of 2014, [Appellant] was driving down North
        Front Street. The State Police at that time had a checkpoint set
        up. They did observe [Appellant] make a U-turn on Front Street
        blocking traffic, and her four-way flashers were on at the time so
        they initiated a traffic stop.

              They smelled marijuana. They noticed her eyes were
        bloodshot and glassy. They had her do a number of field
        sobriety tests that indicated she was impaired, so they took her
        for a blood draw, and the blood draw came back that there was
        marijuana as well as amphetamines over the legal limit in her
        blood. She also did have alcohol in her blood, however, that was
        not over the legal limit. So she is just charged with the THC,[2]
        the amphetamines, and the combination thereof.

N.T., 1/20/16, at 2.

        As noted, Appellant was found guilty on January 20, 2016, of DUI

pursuant to 75 Pa.C.S. § 3802(d)(3) and not guilty of all other counts. The

trial   court   sentenced     her   to   seventy-two   hours   to   six   months   of

incarceration, gave her credit for time served from August 22, 2014, until

August 28, 2014, and granted her immediate parole.

        Appellant filed a post-sentence motion on February 1, 2016,3 alleging

that the verdict was against the weight of the evidence.             The trial court

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2
    Delta-9 Carboxy THC “is the marijuana.” N.T., 1/20/16, at 51.
3
  The tenth day following sentencing fell on Saturday, January 30, 2016.
Thus, Appellant’s post sentence motion filed on Monday, February 1, 2016,
was timely. Pa.R.Crim.P. 720 (A)(1); Commonwealth v. Davis, 86 A.3d
883 (Pa. Super. 2012)(whenever the last day of any time period falls on a
(Footnote Continued Next Page)


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denied the motion on April 26, 2016.              Appellant filed a timely notice of

appeal to this Court.         Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises the following single issue for our review:

        I.   Whether the trial court erred in denying Appellant’s Post-
             Sentence Motion where the verdict was against the weight
             of the evidence so as to shock one’s sense of justice where
             the Commonwealth never showed that the Appellant was
             incapable of driving her vehicle safely?

Appellant’s Brief at 6 (underline omitted).

      “The weight of the evidence is a matter exclusively for the finder of

fact, who is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses.” Commonwealth v. Gonzalez,

109 A.3d 711, 723 (Pa. Super. 2015). In Commonwealth v. Clay, 64 A.3d

1049 (Pa. 2013), our Supreme Court set forth the following standards to be

employed in addressing challenges to the weight of the evidence:

             A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. Commonwealth v. Widmer, 560
      Pa.    308,    319,    744    A.2d    745,   751-[7]52     (2000);
      Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
      1189 (1994). A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Widmer, 560
      A.2d at 319–[3]20, 744 A.2d at 752. Rather, “the role of the
      trial judge is to determine that ‘notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
                       _______________________
(Footnote Continued)

Saturday or Sunday, that day is omitted from the computation. 1 Pa.C.S. §
1908).



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      or to give them equal weight with all the facts is to deny
      justice.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has
      often been stated that “a new trial should be awarded when the
      jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so
      that right may be given another opportunity to prevail.” Brown,
      538 Pa. at 435, 648 A.2d at 1189.

            An appellate court’s standard of review when presented
      with a weight of the evidence claim is distinct from the standard
      of review applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence. Brown, 648 A.2d at 1189. Because the
            trial judge has had the opportunity to hear and see
            the evidence presented, an appellate court will give
            the gravest consideration to the findings and reasons
            advanced by the trial judge when reviewing a trial
            court’s determination that the verdict is against the
            weight of the evidence.          Commonwealth v.
            Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
            One of the least assailable reasons for granting or
            denying a new trial is the lower court’s conviction
            that the verdict was or was not against the weight of
            the evidence and that a new trial should be granted
            in the interest of justice.

      Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis
      added).

Clay, 64 A.3d at 1054–1055. “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. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

      Appellant relies on the testimony of Pennsylvania State Trooper

Gregory Strayer, that Appellant was able to present her driver’s license and

insurance information, was cooperative and not combative, did not stutter,

slur her speech, or fall over.      Appellant’s Brief at 12–13.      Therefore,

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Appellant maintains that the weight of the evidence failed to prove that

Appellant was not capable of safe driving.

     Appellant ignores that the video from Trooper Strayer’s dash camera

was played at trial and admitted into evidence without objection. See N.T.,

1/20/16, at 12. Trooper Strayer, a ten-year veteran with special training in

DUI enforcement testified that Appellant displayed multiple signs of

impairment during the field-sobriety testing. Id. at 5, 18–25. Appellant’s

eyes were bloodshot and glassy, and she was confused.          Id. at 14.    The

officer administered the Horizontal Gaze Nystagmus test and concluded that

Appellant showed six out of six indicators of impairment for both eyes. Id.

at 18–19. He also administered the walk-and-turn test, and stated that “out

of the eight impairment clues that we are trained to look for, she had six of

those impairment clues.”    Id. at 23–24.     The third test Trooper Strayer

administered was the one-leg stand, and Appellant displayed “three out of

three indicators” of impairment. Id. at 24.

     In the case at bar, the trial court, sitting as the finder of fact, chose to

believe the evidence presented by the Commonwealth, as was its right. In

response to Appellant’s claim assailing the weight of the evidence, the trial

court stated:

     Specifically, the Commonwealth demonstrated that [Appellant]
     was seen making a U-turn in the area of a DUI checkpoint and
     subsequently remained stopped at a four-way stop sign.
     [Appellant] admitted to police that she had been drinking alcohol
     and smoking marijuana prior to the stop, and showed several
     signs of impairment during the field sobriety tests.       Police

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       observed [Appellant] to be confused, and her speech slow and
       lethargic. Further, [Appellant] consented to a blood test which
       showed she was above the legal limit for amphetamines and
       Delta-9 THC.

Order, 4/26/16, at 1–2.4

       Based upon our review of the record, we agree with the trial court,

which, as the fact-finder, was free to believe all, part, or none of the

evidence against Appellant. Gonzalez, 109 A.3d at 723. The court weighed

the testimonial evidence and the evidence from the surveillance video and

found that it supported the verdict. This determination is not so contrary to

the evidence as to shock one’s sense of justice. Moreover, this Court will not

assume the role of fact-finder and reweigh the evidence.         Accordingly, we

conclude that the trial court did not abuse its discretion in refusing to grant

relief on Appellant’s challenge to the weight of the evidence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017

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4
   The trial court incorporated its April 26, 2016 order denying Appellant’s
post-sentence motion challenging the weight of the evidence into its
Pa.R.A.P. 1925(a) opinion.



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