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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
JULIANN MAIER,                           :         No. 746 WDA 2016
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, April 21, 2016,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0016334-2014


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 7, 2017

        Juliann Maier appeals1 from the April 21, 2016 judgment of sentence

imposing a $275 fine after the trial court found her guilty of the summary

traffic offenses of reckless driving, careless driving, disregarding a traffic

lane, and failure to drive at a safe speed.2 After careful review, we affirm

the judgment of sentence.




* Retired Senior Judge assigned to the Superior Court.
1
   Appellant purports to appeal from the May 5, 2016 order denying her
post-sentence motion. In a criminal action, an appeal properly lies from the
judgment of sentence made final by the denial of post-sentence motions.
See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa.Super.
2007) (noting that an appeal from an order denying post-sentence motions
is procedurally improper because a direct appeal in a criminal proceeding lies
from judgment of sentence). Accordingly, we have corrected the caption.
2
    75 Pa.C.S.A. §§ 3736, 3714, 3309, and 3361, respectively.
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        The evidence adduced at trial established that on the afternoon of

September 22, 2014, appellant, a 14-year veteran of the Port Authority

Transit (“PAT”), was driving her PAT bus side-by-side with another bus

driven by Thomas Frauens (hereinafter, “co-defendant”) on Interstate

Route 279. Several witnesses observed each bus traveling at a considerable

rate of speed and veering to the right and left in their respective lanes.

Ultimately, the two buses made contact, causing appellant’s bus to careen

off the roadway and go over a hillside. (See notes of testimony, 4/11-21/16

at 44, 47-52, 63-64, 72-76, 151-158, 507.)

        On November 12, 2014, appellant was charged with four counts of

recklessly    endangering   another   person   (“REAP”),   accidents   involving

overturned vehicles,3 and the aforementioned summary traffic offenses.

Appellant waived her right to a jury and proceeded to a bench trial alongside

co-defendant on April 11, 2016. At trial, the Commonwealth argued that the

bus accident occurred because appellant and co-defendant were racing.

Appellant, in turn, maintained that the accident resulted from a mechanical

failure in her bus. On April 21, 2016, the trial court found appellant guilty of

the summary offenses of reckless driving, careless driving, disregarding a

traffic lane, and failure to drive at a safe speed and sentenced her to pay




3
    18 Pa.C.S.A. § 2705 and 75 Pa.C.S.A. § 3716, respectively.


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fines totaling $275.    Appellant was found not guilty of the remaining

charges.4

      On April 29, 2016, appellant filed a post-sentence motion challenging

the weight of the evidence, which was denied by the trial court on May 5,

2016. This timely appeal followed on May 24, 2016. On June 3, 2016, the

trial court directed appellant to file a concise statement of errors complained

of on appeal, in accordance with Pa.R.A.P. 1925(b), by August 3, 2016.

Appellant filed a timely Rule 1925(b) statement on August 2, 2016, and the

trial court filed its Rule 1925(a) opinion on January 9, 2017.

      On appeal, appellant raises the following issues for our review:

            I.    Whether the non-jury verdict by the [trial
                  c]ourt convicting [a]ppellant of one count of
                  disregarding traffic lane, 75 Pa.C.S.[A.]
                  § 3309(1), was against the weight of the
                  evidence and whether the verdict on this count
                  was legally insufficient based upon the [trial
                  c]ourt’s factual     finding supporting that
                  verdict[?]

            II.   Whether the [trial c]ourt’s verdict of guilt on
                  one count of driving at safe speed,
                  75 Pa.C.S.[A.] § 3361, was against the weight
                  of the evidence[?]



4
  The record reflects that co-defendant was found guilty of the summary
offenses of reckless driving, careless driving, and failure to drive at a safe
speed. The trial court found co-defendant not guilty of accidents involving
death or personal injury, 75 Pa.C.S.A. § 3742; accidents involving damage
to attended vehicle or property, 75 Pa.C.S.A. § 3743; four counts of REAP;
and the summary offenses of failure to notify police of an accident,
75 Pa.C.S.A. § 3746, and failure to give information and render aid,
75 Pa.C.S.A. § 3744.


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            III.   Whether the [trial c]ourt’s verdict of guilt on
                   one count of careless driving, 75 Pa.C.S.[A.]
                   § 3714(a), was against the weight of the
                   evidence[?]

            IV.    Whether the [trial c]ourt’s verdict of guilt on
                   one count of reckless driving, 75 Pa.C.S.[A.]
                   § 3736(a), was against the weight of the
                   evidence[?]

Appellant’s brief at 5.

      Preliminarily, we note that appellant’s brief, in large part, conflates the

principles of weight and sufficiency of the evidence.          Appellant raises

challenges to the weight of the evidence in the “Statement of the Questions

Involved” and “Summary of the Argument” sections in her brief, but the

majority of the brief’s “Argument” section addresses her claim that there

was insufficient evidence to sustain the summary traffic convictions.      (See

appellant’s brief at 5, 12-21.) Our review of the record, however, reveals

that appellant has waived any challenge to the sufficiency of the evidence by

failing to include it in her Rule 1925(b) statement. (See “Concise Statement

of Matters Complained of on Appeal,” 8/2/16.)             This court has long

recognized that “[w]hen an appellant fails adequately to identify in a concise

manner the issues sought to be pursued on appeal, the trial court is

impeded in its preparation of a legal analysis which is pertinent to those

issues.”   Commonwealth v. Freeman, 128 A.3d 1231, 1247 (Pa.Super.

2015) (internal citations and quotation marks omitted).        “Any issues not




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raised   in   a   Pa.R.A.P.   1925(b)   statement   will   be   deemed   waived.”

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (citation omitted).

      Moreover, to the extent that appellant’s claims are construed as

challenges to the weight of the evidence, we find that they are devoid of

merit. “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Galvin,

985 A.2d 783, 793 (Pa. 2009) (citation omitted), cert. denied, 559 U.S.

1051 (2010).

              [W]here the trial court has ruled on the weight claim
              below, an appellate court’s role is not to consider the
              underlying question of whether the verdict is against
              the weight of the evidence. Rather, appellate review
              is limited to whether the trial court palpably abused
              its discretion in ruling on the weight claim.

Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation

omitted).

      Our supreme court has long recognized that,

              [b]ecause 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. 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.

              This does not mean that the exercise of discretion by
              the trial court in granting or denying a motion for a
              new trial based on a challenge to the weight of the


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            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term “discretion” imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is
            not exercised for the purpose of giving effect to the
            will of the judge. Discretion must be exercised on
            the foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            Discretion is abused where the course pursued
            represents not merely an error of judgment, but
            where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and

emphasis omitted).

      Instantly, we discern no abuse of discretion on the part of the trial

court in rejecting appellant’s weight claim.    As noted, the record in this

matter reveals that multiple witnesses observed appellant’s PAT bus

traveling at a considerable rate of speed and in a manner consistent with

racing.   The testimony at trial further established that several witnesses

observed appellant’s bus move out of its lane and strike co-defendant’s bus

before veering off the roadway and going over a hillside.       (See notes of

testimony, 4/11-21/16 at 44-45, 47-54, 63-70, 72-76, and 80-81.) “[T]he

trier of fact while passing upon the credibility of witnesses and the weight of

the evidence produced, is free to believe all, part or none of the evidence.”

Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006)

(citation omitted), appeal denied, 926 A.2d 972 (Pa. 2007).          Here, the



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Honorable Jeffrey A. Manning, sitting as fact-finder, concluded that the video

and expert evidence presented at trial and the eyewitness testimony

“weighed in favor of a guilty verdict on the summary traffic offenses,” and

elected not to believe appellant’s version of the events. (Trial court opinion,

1/9/17 at 4.)     We are precluded from reweighing the evidence and

substituting our judgment for that of the fact-finder. Clay, 64 A.3d at 1055.

Accordingly, we affirm the trial court’s April 21, 2016 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/2017




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