J-S18026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JESUS MANUEL MENDEZ COLLADO                :
                                               :
                       Appellant               :      No. 1246 MDA 2019

       Appeal from the Judgment of Sentence Entered February 27, 2019
                In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0000123-2018


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                   FILED JULY 02, 2020

        Appellant, Jesus Manuel Mendez Collado, appeals from the judgment of

sentence entered in the Luzerne County Court of Common Pleas, following his

bench trial convictions for driving under the influence of alcohol or a controlled

substance (“DUI”)—general impairment, careless driving, accidents involving

damage to unattended vehicle or property, and disorderly conduct.1            We

affirm.

        The relevant facts and procedural history of this case are as follows.

During the early morning hours of July 29, 2017, Appellant operated a blue

Honda Odyssey minivan, which struck the parked red Chevrolet Aveo of

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), and 3745(a), and 18 Pa.C.S.A. §
5503(a), respectively.
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Michael Mandak, Sr. (“Victim”). At the time of the motor vehicle collision,

Appellant was intoxicated, and Appellant’s girlfriend, Celia Delgado, and their

son, Omar Collado, were passengers in the minivan.        The Commonwealth

charged Appellant with DUI—general impairment, careless driving, accidents

involving damage to unattended vehicle or property, and disorderly conduct.

      Appellant proceeded to a bench trial on December 28, 2018. At trial,

the Commonwealth presented the testimony of four witnesses: Victim;

Victim’s son, Michael Mandak, Jr.; the Mandaks’ neighbor and eyewitness to

the accident, Jason Hollitt; and Pennsylvania State Police Trooper Jonathan

Stemrich, a responding officer.

      Victim testified that on the night of July 29, 2017, he was asleep when

he heard a loud crash outside at approximately 1:30 a.m.          Victim’s son

retrieved Victim and both went outside approximately one minute later.

There, Victim observed significant damage to his Chevy Aveo parked in front

of his home. The driver’s side rear panel was damaged and two wheels were

bent under the vehicle. Victim approached a nearby blue minivan, and saw

that the minivan had damage to its front passenger side. Victim observed in

the driver’s seat of the minivan a male in his thirties or forties whose

nationality Victim believed was “Spanish.”     He also saw a female in the

passenger side of the minivan.    Victim was not able to identify the male,

however, because Victim was not wearing his glasses.       Victim testified he

heard the female in the minivan tell the male driver to flee.       The driver


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attempted to drive the vehicle, and almost backed up into Victim before

stopping as police arrived. (N.T. Trial, 12/28/18, at 8-14).

      Victim’s son, Mr. Mandak, Jr., testified that on the night of the collision,

a loud crash woke him up around midnight. Victim’s son told his parents about

the crash and went outside within a minute of hearing the noise. He saw his

father’s red car had sustained damage to the rear and a back tire. Victim’s

son observed tire tracks going up the street, where there was a blue Honda

minivan with damage to the passenger side. Appellant was in the driver’s seat

of the minivan. (Id. at 15-20).

      Next, Mr. Hollitt testified he was outside of his home on the porch at

approximately 1:30 a.m. on the morning of the motor vehicle accident. Mr.

Hollitt’s home is approximately 100 feet from the scene of the crash, and he

had a clear view of the crash. He saw a blue Honda Odyssey minivan hit a

parked car and continue moving approximately the length of a block.           Mr.

Hollitt observed Appellant in the driver’s seat of the minivan while it was

moving. When the vehicle stopped, Appellant exited the driver’s seat and a

female exited the passenger side of the minivan. In his written statement to

police, Mr. Hollitt described the male driver as Hispanic.            On cross-

examination, Mr. Hollitt explained he does not wear glasses, and that to the

extent police noted in a report that he did wear glasses, the report was

mistaken. (Id. at 21-28).

      Trooper Stemrich testified that he responded to the scene of the collision


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and observed a red Chevy Aveo with damage to its rear driver’s side and tires,

and a blue Honda Odyssey with damage to its front end and a tire. The Honda

minivan was a block away from the Chevy. Trooper Stemrich encountered

Appellant, Ms. Delgado, and their minor son at the scene.        Appellant was

standing outside the Honda.         Appellant admitted he was “extremely

intoxicated” and claimed Ms. Delgado had been driving the vehicle. Trooper

Stemrich observed Appellant was slurring his speech, very slow, unsure of his

footing, and swaying. Appellant also had bloodshot eyes and a strong smell

of alcohol on his breath. Notably, on cross-examination, Trooper Stemrich

testified that Ms. Delgado told him that Appellant had been driving the vehicle.

Trooper Stemrich asked Appellant to undergo field sobriety tests, but

Appellant refused.

      On behalf of the defense, Appellant’s son, Ms. Delgado, and Appellant

testified. Appellant’s son explained he was in the minivan with his parents at

the time of the collision. He stated Ms. Delgado was driving the vehicle when

the crash occurred. On cross-examination, Appellant’s son said he would not

want Appellant to get into trouble. (Id. at 43-45).

      Ms. Delgado testified that she had been driving the vehicle when the

accident occurred, and that she had been drinking that night. Ms. Delgado

claimed she took a video of Appellant’s interaction with the police at the scene

after the collision. Ms. Delgado noted the video showed her in possession of

the keys to the minivan. (Id. at 46-50).


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      Finally, Appellant testified he was asleep in the passenger seat of the

minivan and Ms. Delgado was driving at the time of the crash. Appellant said

he was drunk when the accident occurred and the crash awakened him.

Appellant also emphasized Ms. Delgado’s video as showing she had possession

of the keys to the minivan. (Id. at 50-53).

      On December 28, 2018, the court convicted Appellant of one count each

of DUI—general impairment, careless driving, accidents involving damage to

unattended vehicle or property, and disorderly conduct. The court sentenced

Appellant on February 27, 2019, to an aggregate term of time served to six

months’ incarceration, plus fines, costs, community service, and driver’s

license suspension. On March 1, 2019, Appellant filed a timely post-sentence

motion, raising a challenge to the weight of the evidence. The court denied

the post-sentence motion on June 26, 2019. Appellant timely filed a notice of

appeal on July 25, 2019. The court ordered Appellant on July 31, 2019, to file

a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b);

Appellant timely complied on August 20, 2019.

      Appellant raises two issues for our review:

         Did the Commonwealth present sufficient evidence to prove,
         beyond a reasonable doubt, that…Appellant was the
         operator or in control of the subject vehicle which served as
         the common and essential element to the charges of DUI,
         careless driving and accident involving damage to
         unattended vehicle or property?

         Was the verdict of guilt as to the charges of DUI, careless
         driving and accident involving damage to unattended
         vehicles or property against the weight of the evidence in

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         that the evidence failed to establish that…Appellant was the
         driver or in control of the subject vehicle at the time of the
         accident?

(Appellant’s Brief at 2).

      In his issues combined, Appellant argues the Commonwealth failed to

prove Appellant was the driver of the Honda Odyssey or that he had physical

control of the vehicle at the time of the collision. Appellant contends Victim

and Victim’s son saw Appellant in the driver’s seat only after the accident.

Appellant maintains Victim’s testimony that a male was in the driver’s seat of

the minivan immediately after the crash is of little consequence, because

Victim did not have his glasses on at the time and did not identify Appellant.

Appellant insists Victim’s son did not testify that he observed the minivan’s

engine running or Appellant operating the minivan.       Appellant submits Mr.

Hollitt could not know whether Appellant and Ms. Delgado changed seats in

the vehicle after the crash.

      Appellant further asserts that both his son and Ms. Delgado confirmed

Ms. Delgado was driving the minivan when the accident occurred. Appellant

posits Ms. Delgado’s testimony is significant, as she conceded she had been

drinking on the night of the collision, implicating herself. Appellant claims Ms.

Delgado’s video established she, not Appellant, had possession of the keys to

the minivan.   Appellant reasons his testimony that he was not driving the

minivan because he was drunk is plausible.        Appellant concludes the trial

evidence was insufficient to support Appellant’s convictions, the verdict was


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against the weight of the evidence, and this Court should reverse and

discharge, or alternatively, grant Appellant a new trial.2 We disagree.

        Appellate review of a claim challenging the sufficiency of the evidence

is as follows:

           The standard we apply in 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
           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
           [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

        Additionally, the following principles apply to a weight of the evidence

claim:

              The weight of the evidence is exclusively for the finder
              of fact who is free to believe all, part, or none of the
              evidence and to determine the credibility of the
____________________________________________


2   Appellant does not challenge his disorderly conduct conviction on appeal.

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            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). Moreover, where 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      The   Motor    Vehicle   Code      defines       the   offenses   of   DUI—general

impairment, careless driving, and accidents involving damage to unattended

vehicle or property, in relevant part, as follows:

         § 3802.     Driving under influence of alcohol or
         controlled substance

            (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).

         § 3714. Careless driving

            (a)     General rule.—Any person who drives a vehicle in


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            careless disregard for the safety of persons or property
            is guilty of careless driving, a summary offense.

                                  *    *    *

75 Pa.C.S.A. § 3714(a).

         § 3745. Accidents involving damage to unattended
         vehicle or property

            (a) General rule.—The driver of any vehicle which
            collides with or is involved in an accident with any vehicle
            or other property which is unattended resulting in any
            damage to the other vehicle or property shall
            immediately stop the vehicle at the scene of the accident
            or as close thereto as possible and shall then and there
            either locate and notify the operator or owner of the
            damaged vehicle or other property of his name, address,
            information relating to financial responsibility and the
            registration number of the vehicle being driven or shall
            attach securely in a conspicuous place in or on the
            damaged vehicle or other property a written notice giving
            his name, address, information relating to financial
            responsibility and the registration number of the vehicle
            being driven and shall without unnecessary delay notify
            the nearest office of a duly authorized police department.
            Every stop shall be made without obstructing traffic more
            than is necessary.

75 Pa.C.S.A. § 3745(a).

      Instantly, in addressing Appellant’s challenge to the sufficiency of the

evidence, the trial court explained: (1) although Victim could not positively

identify Appellant, he described the driver as an individual matching

Appellant’s ethnicity and approximate age; (2) Victim’s son positively

identified Appellant as the individual in the minivan’s driver seat; (3) Mr.

Hollitt saw the minivan strike Victim’s parked car and identified Appellant as

the driver of the minivan; and (4) Trooper Stemrich testified that Ms. Delgado

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told him Appellant was driving the vehicle. Thus, the trial court concluded

that the testimony of the Commonwealth’s witnesses established Appellant

drove the minivan at the time of the collision. (See Trial Court Opinion, filed

September 20, 2019, at 3-4, unpaginated). We see no reason to disrupt the

court’s determination as the trier of fact. See Jones, supra. Viewed in the

light most favorable to the Commonwealth as verdict-winner, the evidence

was sufficient to sustain Appellant’s convictions.    See id.; 75 Pa.C.S.A.

3714(a); 3745(a); 3802(a)(1).

      Regarding Appellant’s weight of the evidence, the trial court reasoned:

         There was no inconsistent testimony presented by the
         Commonwealth during trial.          Although the defense
         presented the testimony of two witnesses in addition to
         [Appellant], they all had a motive to testify in a less than
         truthful manner. This [c]ourt found their testimony to have
         no credibility whatsoever. Nothing leads to the conclusion
         that the verdict was against the weight of the evidence.
         Upon a thorough review of the evidence presented at trial,
         the guilty verdict rendered on December 28, 2018, in no
         way shocks this [c]ourt’s sense of justice or conscience.

(Trial Court Opinion at 5, unpaginated). The trial court, as fact-finder, was

free to accept the testimony of the Commonwealth’s witnesses, and reject the

testimony of the defense witnesses.     See Champney, supra. The record

support’s the trial court’s rationale, and we see no reason to disturb it. See

id. Therefore, Appellant’s challenge to the weight of the evidence also merits

no relief. Accordingly, we affirm.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2020




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