J-S09033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
                                               :
    TIMOTHY JOHN COLLINS                       :
                                               :
                      Appellant                :   No. 1223 WDA 2018

        Appeal from the Judgment of Sentence Entered August 3, 2018
              in the Court of Common Pleas of Venango County
            Criminal Division at No(s): CP-61-CR-0000760-2017

BEFORE:      PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                            FILED MAY 10, 2019

        Timothy John Collins (Appellant) appeals from the judgment of

sentence imposed following his conviction for driving under the influence

(DUI) - general impairment. We affirm.

        Appellant’s charges stem from an incident occurring on October 21,

2017. At Appellant’s non-jury trial, the following evidence was presented.

Late in the evening, likely sometime after 9 p.m., Richard Stewart pulled up

to his residence at the Dale Avenue Apartments. N.T., 6/15/2018, at 21-23,

29.     As he was doing so, he saw Appellant1 “banging” on the door of

Apartment 104.       Id. at 24.      A blue SUV was parked in Stewart’s normal

spot, so Stewart parked his car elsewhere.             Id. at 23.   After noticing


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1   Stewart identified Appellant in court as the person he saw. Id. at 26.



*     Retired Senior Judge assigned to the Superior Court.
J-S09033-19


Stewart’s arrival, Appellant asked Stewart whether Appellant’s SUV was

parked in Stewart’s spot; Stewart said no.        Id.   Appellant offered to yank

the car out of the spot with a chain, but Stewart declined.         Id.   Stewart

believed Appellant was intoxicated because his speech was slurred “pretty

bad.” Id. at 24, 31. Appellant went to the SUV and spoke to a black man

(later identified as Taco),2 who was sitting in the front passenger seat of the

SUV.    Id. at 24-25.       Appellant then briefly banged on the front door of

Apartment 104 for a second time before Stewart observed Appellant get into

the driver’s seat of the SUV and drive away. Id. at 25.

       Approximately a half-hour later, the blue SUV returned to the Dale

Avenue Apartments. Id. at 26.           From his apartment window, Stewart saw

that Appellant was driving and Taco was sitting in the front passenger seat.

Id. at 26, 29.        The street lights and lights on the apartment building

illuminated the area. Id. at 30. A few minutes later, Stewart noticed that

the police had arrived and they were giving Taco a breathalyzer. Id. at 27-

28. Appellant was no longer around. Id.

       According to Officer Kenneth Scott of the City of Franklin Police

Department, police had been dispatched to Apartment 104 at the Dale

Avenue Apartments around 10:30 p.m. to respond to a noise complaint
____________________________________________


2 The man’s name is unclear from the record. Although it appears it may be
Eugene Sanders, the only definitive identification of him was by Appellant,
who referred to him by the man’s nickname, Taco. Accordingly, we shall
refer to him as Taco in this memorandum.



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regarding door-knocking by a black male and white male.        Id. at 4-6, 8.

When they arrived, the officers found a blue SUV that had been reported

stolen that evening.     Id. at 6.   A black male – presumably Taco – was

operating the vehicle and the officers arrested him for DUI. Id.

      Around 11:00 p.m., Officer Scott was dispatched to 610 10th Street,

which was a few minutes’ drive away from the Dale Avenue Apartments, due

to the report of the stolen blue SUV. Id. at 4-5, 18. When he arrived at

610 10th Street, Officer Scott spoke to Appellant and the owner of the blue

SUV, Steve Godden, and informed them that the police did not believe the

blue SUV had been stolen.        Id. at 7.   Godden admitted that he had

permitted Appellant and Taco to drive the vehicle to the Dale Avenue

Apartments. Id.     Appellant and Taco had returned to 610 10th Street but

left for a second time without notifying Godden, prompting him to report the

vehicle as stolen. Id.

      Appellant then admitted to Officer Scott that he had driven the blue

SUV from 610 10th Street to the Dale Avenue Apartments twice that

evening.   Id.   He told Officer Scott that after he had driven to the Dale

Avenue Apartments a second time, he saw the officers pull up. Id. He left

the blue SUV there and returned to 610 10th Street on foot because he did

not want to get in trouble for operating a vehicle under the influence. Id.

      While he was talking to Appellant, Officer Scott noticed that Appellant

seemed to be intoxicated. Id. at 9-10. Appellant’s speech was slurred, his


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gait was unsteady, he was leaning against a vehicle to keep himself from

swaying, his clothing was disheveled, he smelled like alcohol, and his eyes

were bloodshot and glassy.          Id.    Officer Scott administered various field

sobriety tests on the spot; Appellant’s performance on these tests was

unsatisfactory. Id. at 10-11. Based on his observing signs of intoxication

and Appellant’s performance on the field sobriety tests,3 Officer Scott

determined that Appellant would not have been capable of operating a motor

vehicle safely earlier. Id. at 13. Accordingly, Officer Scott placed Appellant

under arrest.

       In contrast, Appellant testified that on the evening of October 21,

2017, he was at a bar taking out garbage. Id. at 47. He received two drink

chips for doing so; he gave one to Godden and used the other to buy a beer,

of which he only drank half. Id. He asked Godden if he could borrow his car

to go to his sister’s house since she had beer there. Id. Appellant did not

believe he could walk because he had burned his feet in a fire a few weeks

before and he had a bad hip. Id. At some point, Appellant agreed to give

Taco a ride to find a girl named Patty, and when they arrived, Appellant

helped Taco bang on some doors to look for Patty.            Id. at 48.   Appellant

encountered Stewart, and they discussed whether Appellant was in Stewart’s

parking spot. Id. at 48-49. Appellant claimed his slurred speech must have
____________________________________________


3Appellant initially agreed and then refused to take a blood alcohol test. Id.
at 14.



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been due to his dry mouth, which is a side effect of his psychiatric

medications. Id.

     According to Appellant, he then drove the blue SUV to 10th Street,

parked it near a Shop ‘n Save store, threw the keys in the console, and

walked over to his sister’s house. Id. at 49-51. He arrived around 9 p.m.,

and drank six or eight beers. Id. Appellant was on the front porch of his

sister’s house when he saw Godden, who could not find his blue SUV. Id.

Appellant told him where he had parked it, but Godden said it was missing,

and they called 911. Id. at 49-50. During his testimony, Appellant denied

driving the blue SUV to the Dale Avenue Apartments a second time and

telling Officer Scott that he had driven while drunk. Id. at 50-51, 57-58.

     Appellant’s nephew and sister testified as defense witnesses, claiming

that Appellant had arrived at their house at 610 10th Street sometime

around 9 p.m., and did not seem to be intoxicated.           Id. at 35, 45.

Appellant’s sister went to bed around 9:30 p.m. and had no further

interactions with Appellant.   Id. at 45. She did not realize the police had

been to the house until she was told the next morning. Id. at 45-46. After

seeing Appellant when he first arrived, Appellant’s nephew went back

upstairs. Id. at 35. He came back downstairs around 10:00 or 10:30 p.m.

Id. at 38. By that point, he saw that Appellant had had a few beers, but

Appellant’s nephew said he did not think Appellant was “shit-faced” drunk

yet because Appellant was not being rude to him and making wisecracks like


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he normally did when he was drunk. Id. Appellant’s nephew thought it was

unlikely that Appellant left the house again because he did not hear their

dogs bark; however, he conceded it was possible because he was upstairs,

plus the dogs were familiar with Appellant. Id. at 40-41.

       In short, the Commonwealth’s witnesses contended Appellant drove

the blue SUV two times between 610 10th Street and the Dale Avenue

Apartments, and he was drunk while doing so. Appellant only admitted to

driving the blue SUV once, claimed he had only had one-half of a beer before

doing so, and that he did not get drunk until after he drove.             At the

conclusion of the trial, the trial court resolved the conflict in the testimony in

favor of the Commonwealth, found Appellant guilty, and sentenced Appellant

to six months’ probation.

       Appellant timely filed a notice of appeal. Both Appellant and the trial

court ultimately complied with Pa.R.A.P. 1925. Appellant raises one claim on

appeal: whether the evidence was sufficient to convict him of DUI because

there was no evidence demonstrating that Appellant drove the blue SUV

while he was so drunk that he was incapable of safely driving.4 Appellant’s

Brief at 5.


____________________________________________


4 Appellant has failed to follow the Rules of Appellate Procedure insomuch as
his statement of the case contains argument, fails to set forth any record
citations, and does not set forth all necessary facts. Compare Appellant’s
Brief at 6 with Pa.R.A.P. 2117. We further note with disapproval that the
(Footnote Continued Next Page)


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      According to Appellant, the Commonwealth’s theory is that he drove

the blue SUV a second time from his sister’s house to the Dale Avenue

Apartments, abandoned the blue SUV at the Dale Avenue Apartments when

he saw police arrive, and ran back to his sister’s house on foot

notwithstanding his burnt feet and bad hip.      Id. at 10. Appellant argues

that Commonwealth’s theory “does not fit the evidence for a later middle-

aged man to accomplish,” especially because he supposedly ran back to his

sister’s house between 10:30 p.m., when the police arrived at the Dale

Avenue Apartments, and 11:00 p.m., when the police arrived at his sister’s

house. Id. Appellant admits to failing the field sobriety test, but claims this

was due to the 6-8 beers he drank at his sister’s house between 9:00 p.m.

and 11:00 p.m., when the police showed up to inquire about the missing

blue SUV. Id. at 9. Thus, he argues that there is insufficient evidence to

prove he was drunk while he was driving the blue SUV. Id. at 9-10.

      We assess Appellant’s argument that the evidence was insufficient to

convict him of DUI by the following standard.

      Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary. When reviewing the sufficiency of the
      evidence, this Court is tasked with determining whether the
      evidence at trial, and all reasonable inferences derived
      therefrom, are sufficient to establish all elements of the offense
      beyond a reasonable doubt when viewed in the light most
(Footnote Continued) _______________________

Commonwealth did not file a brief in this matter or even notify this Court
that it would not be filing a brief.



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        favorable to the Commonwealth[.]        The evidence need not
        preclude every possibility of innocence….

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

        “This standard is equally applicable to cases where the evidence is

circumstantial rather than direct so long as the combination of the evidence

links    the   accused   to   the   crime   beyond   a   reasonable    doubt.”

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

“Although a conviction must be based on ‘more than mere suspicion or

conjecture, the Commonwealth need not establish guilt to a mathematical

certainty.’”   Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super.

2018) (citation omitted).

        In order to prove Appellant was guilty of DUI - general impairment,

the Commonwealth needed to prove that Appellant drove the blue SUV at a

point in time when his alcohol use had rendered him incapable of safely

driving. See 75 Pa.C.S. § 3802(a)(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.”). The relevant timeframe for intoxication is at the time of

driving. Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). The

Commonwealth may establish the elements of subsection 3802(a)(1) by

circumstantial evidence, “including, but not limited to, the offender’s actions

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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.” Id.

         Here, the trial court deemed the Commonwealth’s evidence to be

sufficient to establish all elements of subsection 3802(a)(1).           Trial Court

Opinion, 11/2/2018, at 5. We agree, in light of the testimony describing the

following:    Stewart’s   observation   of    signs   of   Appellant’s   intoxication

immediately before Stewart saw Appellant drive the blue SUV the first time;

Officer Scott’s observation of signs of Appellant’s intoxication and Appellant’s

failure of the field sobriety test approximately one-half hour after Stewart

saw Appellant driving the car the second time; Officer Scott’s assessment

that Appellant would not have been capable of operating a motor vehicle

safely just one-half hour earlier; and Appellant’s admissions to Officer Scott

that Appellant had driven the car twice and abandoned the vehicle when the

police came because he was afraid of getting a DUI. Based upon Segida,

this evidence was sufficient to prove circumstantially that Appellant drank

before driving the blue SUV and his alcohol use rendered him incapable of

safely driving.

         Much of Appellant’s sufficiency argument really is a challenge to the

weight of the evidence in disguise, insomuch as he is asking us to credit his

testimony instead of the testimony of the Commonwealth’s witnesses.


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Credibility conflicts go to the weight, not the sufficiency of the evidence. 5

Commonwealth v. Stahl, 175 A.3d 301, 305-06 (Pa. Super. 2017). It is

apparent that the trial court found the testimony of the Commonwealth’s

witnesses more credible than Appellant’s testimony. Further, the trial court

did not afford the testimony of Appellant’s nephew and sister “much weight”

due to their relationship to Appellant and apparent lack of knowledge of

what actually transpired on the night in question.         Trial Court Opinion,

11/2/2018, at 5.      “Credibility of witnesses and the weight of the evidence

produced is within the province of the trier of fact, who is free to believe all,

part, or none of the evidence.”           Commonwealth v. Kitchen, 162 A.3d

1140, 1144 (Pa. Super. 2017).

       Accordingly, the trial court did not err in concluding that the

Commonwealth proved all of the elements of subsection 3801(a)(1) beyond

a reasonable doubt. Based on the foregoing, we affirm Appellant’s judgment

of sentence.

       Judgment of sentence affirmed.




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5 Challenges to weight and sufficiency are distinct legal claims; Appellant has
waived any challenge to the weight of the evidence by failing to file a post-
sentence motion and including such a challenge in his concise statement and
statement of questions involved. See Commonwealth v. Kinney, 157
A.3d 968, 971-72 (Pa. Super. 2017).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2019




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