J-S76025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

GAYLEN DARTANYON THOMAS

                          Appellant                 No. 981 WDA 2014


              Appeal from the Judgment of Sentence May 8, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011114-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                       FILED FEBRUARY 18, 2015

      Appellant, Gaylen Dartanyon Thomas, appeals from the judgment of

sentence entered on May 8, 2014, by the Honorable Anthony M. Mariani,

Court of Common Pleas of Allegheny County.          After careful review, we

affirm.

      As we write primarily for the parties, we will set forth only so much of

the procedural and factual history of the appeal as is necessary to this

memorandum. Officer Seth Masley pulled Thomas’s vehicle over because he

could not see a visible license plate. After receiving Thomas’s Ohio license,

Officer Masley discovered that Thomas’s Pennsylvania driver’s license had

been suspended.     While discussing this circumstance with Thomas, Officer

Masley detected an odor of alcohol, and further, that Thomas was slurring

his speech.
J-S76025-14


      Thomas admitted to having one beer earlier in the evening, so Officer

Masley proceeded to administer a field sobriety test on Thomas.       Thomas

performed poorly on five tests, including the finger-to-thumb test and the

finger-to-nose test. At this point, Officer Masley placed Thomas under arrest

and read the DL-26 form to Thomas.         Thomas did not consent to blood

testing, but rather insisted that he speak to his attorney before consenting

to anything.

      After a bench trial, the trial court convicted Thomas of one count of

driving under the influence, general impairment, one count of driving under

the influence, refusal of blood test, and one count of driving while operating

privileges are suspended. Thomas filed post-sentence motions, which were

denied by the trial court, and this timely appeal followed.

      On appeal, Thomas challenges the sufficiency and weight of the

evidence supporting his conviction for driving under the influence, general

impairment.    We review a challenge to the sufficiency of the evidence as

follows:

      The standard we apply when reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant's guilt
      may be resolved by the fact-finder 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. The

                                     -2-
J-S76025-14


    Commonwealth may sustain its burden of proving every element
    of the crime beyond a reasonable doubt by means of wholly
    circumstantial evidence. Moreover, in applying the above test,
    the entire record must be evaluated and all evidence actually
    received must be considered. Finally, the 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. Furthermore, when reviewing a sufficiency claim, our
    Court is required to give the prosecution the benefit of all
    reasonable inferences to be drawn from the evidence.
    However, the inferences must flow from facts and circumstances
    proven in the record, and must be of such volume and quality as
    to overcome the presumption of innocence and satisfy the jury
    of an accused's guilt beyond a reasonable doubt. The trier of fact
    cannot base a conviction on conjecture and speculation and a
    verdict which is premised on suspicion will fail even under the
    limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Conversely, a challenge to the weight of the evidence “concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal   that   a   guilty   verdict   shocks   one’s   sense   of   justice.”

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citation

omitted).   Our standard when reviewing a weight of the evidence claim is

well settled.

      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. 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. 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 or to give them equal weight with all the facts is to
      deny justice.’ ” It has often been stated that “a new trial should

                                      -3-
J-S76025-14


     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.”

     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.
        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. 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 evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

        The 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.

Id. at 1015-1016 (citation omitted).




                                       -4-
J-S76025-14



     As noted, Thomas is challenging his conviction for driving under the

influence, general impairment, which is defined as follows.

     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.

75 Pa.C.S.A. § 3802.

     After reviewing the testimony of Officer Masley, we conclude that it

was more than sufficient to sustain Thomas’s conviction for DUI-general

impairment.    Officer Masley testified that while talking to Thomas, he

detected “an odor of alcoholic beverage emanating from within the vehicle.”

N.T., Trial, 4/10/14, at 11. Thomas was slurring, and “having a great deal

of difficulty annunciating sounds and syllable” while saying the alphabet. Id.

Furthermore, Thomas was unable to maintain his balance on one leg for

more than four seconds.      See id., at 15.    On the finger-to-nose test,

Thomas failed to close his eyes, or tilt his head back as Officer Masley

instructed him to do.   See id., at 16.   He also swayed on his feet while

performing the test. See id. During the walk and turn test, Thomas was

unable to touch his heel to the other foot’s toe on any step. See id., at 17.

He could not maintain a straight line as he walked, and had to use his arms

to maintain his balance. See id.

     Thomas argues that this evidence can be construed in a manner that

supports Thomas’s position at trial that he was merely tired. While this may

                                    -5-
J-S76025-14


be technically true, it does not alter the fact that the evidence also

reasonably supports the inference that Thomas was intoxicated while

driving.   Under our standard of review, we must draw all reasonable

inferences in favor of the prosecution.     As such, we find that Thomas’s

challenge to the sufficiency of the evidence merits no relief on appeal.

      Turning to Thomas’s challenge to the weight of the evidence

supporting his conviction, we note that the trial court provides the following

reasoning supporting its decision.

      Essentially, the defendant challenges this court’s assessment
      that he was under the influence of alcohol to such a degree that
      he was incapable of safe driving at the time his vehicle was
      stopped.     As set forth above, the defendant’s speech was
      slurred. His eyes were glassy and bloodshot. He failed multiple
      field sobriety tests and he refused to submit to chemical testing.
      This evidence supports the verdict. This court has reviewed the
      trial record and believes that the verdict does not shock any
      rational sense of justice and, therefore, the verdict was not
      against the weight of the evidence.

Trial Court Opinion, 9/2/14, at 9. After independently reviewing the record,

we can discern no abuse of discretion in the trial court’s reasoning.       We

therefore conclude that Thomas’s second issue on appeal merits no relief.

      As we conclude that neither of Thomas’s issues on appeal merit relief,

we affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.




                                     -6-
J-S76025-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




                          -7-
