J-S37024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY MICHAEL JOHNSON                    :
                                               :
                       Appellant               :   No. 1489 EDA 2017

          Appeal from the Judgment of Sentence Entered April 5, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CAR-0000889-2016

BEFORE:      OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY McLAUGHLIN, J.:                  FILED SEPTEMBER 12, 2018

        Following a bench trial, the trial court found Anthony Michael Johnson

guilty of Driving Under the Influence of Alcohol or Controlled Substance

(general impairment) (DUI), but acquitted him of Drivers Required to Be

Licensed, Driving Vehicle at Safe Speed, and Careless Driving.1 Johnson

argues on appeal that the guilty verdict was against the weight of the evidence

because of a claimed inconsistency between the conviction and the acquittals.

Johnson waived his weight claim, and we therefore affirm.

        An appellant may not challenge the weight of the evidence in the first

instance on appeal. See Pa.R.Crim.P. 607(A); Commonwealth v. Roche,

153 A.3d 1063, 1071 (Pa.Super. 2017), appeal denied, 169 A.3d 599 (Pa.

2017). Although Johnson raised a weight claim before the trial court in a
____________________________________________


*    Former Justice specially assigned to the Superior Court.

1   75 Pa.C.S.A. §§ 3802(a)(1), 1501(a), 3361, and 3714(a), respectively.
J-S37024-18



Motion for Extraordinary Relief and/or Arrest of Judgment, he withdrew the

motion before the court ruled on it. The withdrawal is memorialized in both a

notation on the trial court docket and a signed document in the certified

record. Johnson did not otherwise raise the issue in the trial court and he does

not make any argument that he did not commit waiver despite having

withdrawn the motion. Johnson waived his weight challenge.

      Even if Johnson had properly preserved the issue, we would nonetheless

affirm. The trial court addressed Johnson’s weight-of-the-evidence argument

because he asserted it in his Pa.R.A.P 1925(b) Statement. Johnson’s Rule

1925(b) Statement claimed that “the verdict of guilty to the charge of DUI in

light of the acquittals to the remaining traffic summary offenses [was] against

the weight of the evidence” and “shock[s] the conscience[,] [t]hereby

necessitating vacating the guilty verdict or alternatively, granting a new

trial[.]” Johnson’s Br., Ex. B.

      The trial court explained that it had disbelieved Johnson’s testimony at

trial that he was not the one driving at the time of the incident giving rise to

the charges at issue in this appeal. The court then concluded that, in view of

the other evidence against Johnson – in particular the testimony of other

witnesses whom the court found credible – the verdict was not objectively

shocking.   That    conclusion    was   not   an   abuse   of   discretion.   See

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (stating

standard of review of an order denying a motion for a new trial based on a

weight claim is abuse of discretion). To the extent Johnson attempts to

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reframe his weight argument as a challenge to the sufficiency of the evidence,

he waived that argument by not raising it in his Rule 1925(b) Statement.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/18




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