J-S60030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                          Appellee

                     v.

ODILIE B. CERRITOS

                          Appellant                       No. 2244 MDA 2013


    Appeal from the Judgment of Sentence entered November 22, 2013
              In the Court of Common Pleas of Centre County
               Criminal Division at No: CP-14-0000048-2013


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JANUARY 16, 2015

      Appellant, Odilie B. Cerritos, appeals from the judgment of sentence

the Court of Common Pleas of Centre County entered on November 22,

2013. Appellant challenges the sufficiency and the weight of the evidence

supporting Appellant’s conviction for violating 75 Pa.C.S.A. § 3802(a)(1)

(driving   under   influence   of    alcohol   or   controlled   substance—general

impairment). Upon review, we affirm.

      The trial court summarized the underlying facts and procedural history

as follows:

      Corporal Brian Rose with the Ferguson Township Police
      Department testified at the [n]on-[j]ury [t]rial. On October 28,
      2012, he was going on roving DUI patrol and at about 2:28
      a.m., he was on North Atherton Street near the intersection of
      Vairo Boulevard when his attention was drawn to a green Jeep
      Cherokee. He observed the Jeep stop approximately ten yards
      short of the stop line at a red light. Corporal Rose testified that
      stopping short of the line is a violation of the [V]ehicle [C]ode,
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      although at that time he did not realize as much. He described
      stopping ten yards short of the line as behavior that would “get
      his attention.” When the light turned green, Corporal Rose’s
      vehicle and the Jeep proceeded north[-]bound. The Jeep was in
      the left lane and switched lanes to get behind Corporal Rose’s
      vehicle and then returned to the left lane after a short amount of
      time to pass him. He further stated that switching lanes to get
      behind a police cruise[r] and then switching lanes again to pass
      a cruiser is out of the ordinary.        Corporal Rose ran the
      registration and noted the registration was cancelled for
      nonpayment of insurance.        The Jeep pulled into Denny’s
      restaurant and Corporal Rose pulled in behind it. When asked to
      produce her license, insurance and registration, [Appellant] had
      some trouble locating the items. Corporal Rose detected the
      odor of alcohol on [Appellant], her eyes were watery and glassy
      and her speech was somewhat slurred[,] which he described as
      “mush mouth.” He also noted in his report that her face was
      flushed.
                                    ....

      Corporal Rose administered the field sobriety tests in Denny’s
      parking lot. Out of eight clues on the walk and turn test she was
      assessed six[,] which was an unsatisfactory performance. She
      performed satisfactorily on the one-legged stand. Corporal Rose
      determined [Appellant] was incapable of safe driving and she
      was placed under arrest. Corporal Rose transported [Appellant]
      to the Central Booking Station for a blood test. . . . [A witness
      for the Commonwealth] testified that . . . the [Blood Alcohol
      Content (BAC)] results related to the samples tested was 0.080
      gram per deciliter.

Trial Court Opinion, 3/27/14, at 1-3 (citation to notes of testimony omitted).

      Appellant raises the following issues for our review:

      I.    Was the evidence adduced by the Commonwealth
            insufficient to prove beyond a reasonable doubt that on the
            night in question, Appellant was rendered incapable of
            safely operating a motor vehicle because of alcohol
            consumption, specifically did the evidence[,] viewed in a
            light most favorable to the Commonwealth as verdict
            winner and giving the Commonwealth the benefit of all
            reasonable inferences therefrom, establish the charge [of]



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            Driving Under the Influence of Alcohol, 75 [Pa.C.S.A.
            § 3802(a)(1)] beyond a reasonable doubt?

      II.   Was the [v]erdict contrary to the weight of the evidence in
            that the evidence preponderated sufficiently against the
            verdict so that a serious miscarriage of justice had resulted
            with respect to the conviction?

Appellant’s Brief at 6.

      In reviewing a claim challenging the sufficiency of the evidence, we

apply the following standard:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010) (internal

quotations and citations omitted).

      Appellant argues the Commonwealth failed to provide sufficient

evidence to prove Appellant was substantially impaired for purposes of




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Section 3802(a)(1).1 To this end, Appellant points to evidence in the record

showing she was not substantially impaired to drive safely. Appellant’s Brief

at 14-15. The argument is misplaced, for several reasons.

        Appellant’s argument is a challenge to the weight of the evidence, not

to the sufficiency of the evidence. Appellant notes that Officer Rose testified

that Appellant’s “exit of the vehicle was normal, she was steady on her feet,

she stood normally, she walked normally, and she was not disheveled in

appearance.”      Appellant’s Brief at 14.       Appellant also avers Officer Rose

“claimed” that Appellant “stepped off the line during the [walk and turn]

test, but he could not recall at what step she allegedly stepped off the line

nor could he recall where she allegedly missed heel to toe.” Id. “Ultimately,

Officer Rose begrudgingly admitted that [Appellant] did more things right

the evening of her arrest than she did wrong.” Id. at 15.

        Appellant is in essence asking this Court to reweigh the evidence

against the Commonwealth, and make credibility determinations in her

____________________________________________


1
    Section 3802, in relevant part, reads:

        (a) General impairment.--

           (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.

75 Pa.C.S.A. § 3802(a)(1).



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favor. Such a position, however, is untenable in light of the sufficiency of

the evidence standard of review. Under that standard, the evidence must be

assessed in the light most favorable to the Commonwealth, as the verdict

winner, not Appellant.    Mollett, 5 A.3d at 313.     Furthermore, this Court

does not make credibility determinations and cannot reweigh the evidence.

Id.

      Nonetheless, Appellant argues the fact that “Officer Rose followed

[Appellant] for a quarter of mile and at no time was [Appellant]’s driving to

be erratic[,]” as proof she was not substantially impaired to drive.

Appellant’s Brief at 14. The argument is without merit.

      Evidence of erratic driving is not a necessary precursor to a
      finding of guilt under the relevant statute. The Commonwealth
      may prove that a person is incapable of safe driving through the
      failure of a field sobriety test. [Commonwealth v. Palmer,
      751 A.2d 223 (Pa. Super. 2000)]; see also Commonwealth v.
      Smith, 831 A.2d 636 (Pa. Super. 2003).

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011).

      Applying the proper standard of review for a sufficiency claim, we

agree with the trial court’s finding that the evidence was in fact sufficient to

find Appellant guilty of DUI—general impairment. Specifically, the trial court

found:

      Corporal Rose reasonably noted concerns that drew his attention
      concerning [Appellant]’s driving[,] including stopping thirty feet
      before the stop line and switching lanes to pass his cruiser. . . .
      Once he encountered [Appellant], he detected the odor of
      alcohol and noticed that she had watery and glassy eyes and
      slurred speech . . . . He also perceived her face to be flushed.
      Although she passed the one-legged stand, she scored 6 of 8

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       clues on the walk-and-turn test for an unsatisfactory
       performance.   Furthermore, she did admit to drinking that
       evening. Her BAC result was 0.80.

Trial Court Opinion, 3/27/14, at 5.            Thus, we conclude the evidence was

sufficient to support Appellant’s conviction under 75 Pa.C.S.A. § 3802(a)(1).

       Next, Appellant argues the guilty verdict was against the weight of the

evidence. In support, Appellant relies on the same reasons advanced for her

sufficiency of the evidence challenge. Appellant’s Brief at 16. Appellant also

argues the “scope of appellate review of an [o]rder denying a new trial on

the basis of the weight of the evidence is identical to the standard

employed by the trial court[.]” Id. (emphasis added).2 Appellant concludes

“the trial court simply accepted the officer’s ultimate opinion that [Appellant]
____________________________________________


2
  It appears that Appellant miscomprehends the distinction between our
scope and standard of review. As shown above, Appellant refers to our scope
of review and standard of review interchangeably. Scope of review and
standard of review, however, are two distinct and separate concepts. Our
Supreme Court noted:

       “Scope of review” and “standard of review” are often-albeit
       erroneously-used interchangeably. The two terms carry distinct
       meanings and should not be substituted for one another. “Scope
       of review” refers to “the confines within which an appellate court
       must conduct its examination.”        Coker v. S.M. Flickinger
       Company, Inc., [] 625 A.2d 1181, 1186 ([Pa.] 1993). In other
       words, it refers to the matters (or “what”) the appellate court is
       permitted to examine. In contrast, “standard of review” refers to
       the manner in which (or “how”) that examination is conducted.
       In Coker we also referred to the standard of review as the
       “degree of scrutiny” that is to be applied.

Morrison v. Dept. of Public Welfare, 646 A.2d 565, 570 (Pa. 1994).




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was incapable of safe driving when the facts revealed at trial did not support

the officer’s opinion.” Appellant’s Brief at 16.

        Unfortunately, this claim is waived, for several reasons. A claim that a

verdict is against the weight of the evidence must be raised in a motion for a

new trial either (1) orally on the record, before sentencing; (2) in a written-

presentence motion; or (3) in a post-sentence motion. Pa.R.Crim.P. 607(A).

Failure to properly preserve the claim results in waiver, even if the trial court

addresses the weight of the evidence in its opinion.       Commonwealth v.

Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (quoting Commonwealth

v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012)). It is axiomatic that a

party cannot raise an issue for the first time on appeal.        See Pa.R.A.P.

302(a).

        Appellant did not provide any indication on how and when she raised

and preserved her weight of the evidence claim for our review. Accordingly,

her weight of the evidence claim is waived.           See Pa.R.A.P. 2117(c),

2119(e); see also Commonwealth v. Williams, 980 A.2d 667, 671 (Pa.

Super. 2009).3 Additionally, “it is not the responsibility of this Court to scour

____________________________________________


3
    In Williams, we noted:

        Pursuant to the Rules of Appellate Procedure, Appellant must
        specify where in the record this issue was preserved. See
        Pa.R.A.P. 2117(c) and 2119(e). In his brief, [a]ppellant does
        not indicate where the issue was preserved in the trial court, nor
        does he even allege that he raised the issue[.] Consequently,
(Footnote Continued Next Page)


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the record to prove that an appellant has raised an issue before the trial

court, thereby preserving it for appellate review.”             Commonwealth v.

Baker, 963 A.2d 495, 502 n.6 (Pa. Super. 2008). Nonetheless, upon review

of the record it appears Appellant did not raise this claim in a motion for a

new trial with the trial court as required under Pa.R.Crim.P. 607(A).4

      Appellant    also     does    not   appreciate   the   differences   between   a

sufficiency of the evidence and a weight of the evidence claim, by failing to

articulate any separate argument for her weight of the evidence claim. The

                       _______________________
(Footnote Continued)

      we are constrained to deem this issue waived. See Pa.R.A.P.
      302(a) (“[i]ssues not raised in the lower court are waived and
      cannot be raised for the first time on appeal”).

Williams, 980 A.2d at 671.
4
  At the close of the Commonwealth’s case, but before the verdict, Appellant
asked the trial court to “dismiss” the charges on sufficiency and weight of
the evidence grounds. N.T. Trial, 9/4/13, at 68. It appears the next time
Appellant challenged the weight of the evidence was in her Rule 1925(b)
statement, which is insufficient for preserving it for appellate review. See
Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009). In Sherwood,
the Supreme Court noted:

      Regarding [a]ppellant’s weight of the evidence claim[,] we note
      that [a]ppellant did not make a motion raising a weight of the
      evidence claim before the trial court as the Pennsylvania Rules of
      Criminal Procedure require. See Pa.R.Crim.P. 607(A). The fact
      that Appellant included an issue challenging the verdict on
      weight of the evidence grounds in his 1925(b) statement and the
      trial court addressed [a]ppellant’s weight claim in its Pa.R.A.P
      1925(a) opinion did not preserve his weight of the evidence
      claim for appellate review in the absence of an earlier motion.

Id. at 494 (footnote omitted).



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two challenges are not the same, and failure to recognize this distinction

also may result in waiver.   Commonwealth v. Widmer, 744 A.2d 745,

751-52 (Pa. 2000); Commonwealth v. Birdseye, 637 A.2d 1036, 1039-40

(Pa. Super. 1994) (“Because [appellants] failed to distinguish between their

sufficiency and weight of the evidence claims and presented no argument

regarding the weight of the evidence, we deem their weight of the evidence

issue waived.”).

     Appellant finally ignores that the weight of evidence standard applied

by appellate courts is not identical to the standard employed by the trial

court, and failure to address the proper standard may result in a waiver of

the weight of the evidence claim. See Commonwealth v. Johnson, 985

A.2d 915, 926 (Pa. 2009).

     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.




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      [Widmer, 744 A.2d at 753] (emphasis added) [(internal
      citations omitted)].

      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.] (quoting Coker[, 625 A.2d at 1184-85]).

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

      Here, Appellant did not advance any argument on how the trial court

abused its discretion in not granting a motion for a new trial (a motion she

apparently never made) based upon a weight of the evidence claim.

Appellant merely challenges the trial court’s credibility determinations, which

we cannot reweigh. See Commonwealth v. DeJesus, 860 A.2d 102, 107

(Pa. 2004) (“The weight of the evidence is exclusively for the finder of fact,

which is free to believe all, part, or none of the evidence, and to assess the

credibility of the witnesses. . . . This Court cannot substitute its judgment

for that of the [finder of fact] on issues of credibility.”) (citations omitted).

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“Because Appellant fails to address the standard by which this Court reviews

a weight of the evidence claim and makes no effort to demonstrate an abuse

of discretion by the trial court,” Johnson, 985 A.2d at 926, she is not

entitled to any relief on her weight of the evidence claim.

      Judgment of sentence affirmed.

      Judge Ott joins the memorandum.

      Judge Jenkins concurs in result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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