J-S21044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL BRYAN RODGERS,

                            Appellant                No. 3000 EDA 2014


              Appeal from the Judgment of Sentence July 25, 2014
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0001302-2013


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 08, 2015

        Appellant, Michael Bryan Rodgers, appeals from the judgment of

sentence imposed following his jury conviction of one count each of fleeing

or attempting to elude a police officer (graded as a felony of the third

degree) and driving under the influence of alcohol (DUI). 1          Appellant

challenges the weight of the evidence to support his conviction. We affirm.

        We take the relevant facts and procedural history of this case from the

trial court’s January 12, 2015 opinion and our independent review of the

record. On October 29, 2012, the day of “Hurricane Sandy,” Officer Thomas

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 75 Pa.C.S.A. §§ 3733(a), (a.2)(2)(i) (applicable where defendant commits
DUI offense while fleeing or attempting to elude a police officer) and
3802(b), respectively.
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E. Barton of the North Coventry Township Police Department was on duty

wearing full uniform and driving a marked police vehicle. At approximately

5:50 p.m., the officer observed an all-terrain vehicle (ATV) and a dirt bike

driving in the middle of a public roadway. Because these vehicles are not

permitted on roadways,2 Officer Barton attempted to catch up with them in

his police vehicle.     The officer temporarily lost sight of the vehicles, but

located them in the parking lot of a supply store. Officer Barton activated

his overhead lights as he pulled into the parking lot.           Both vehicles

immediately fled, splitting around the officer’s vehicle and back onto the

roadway. Officer Barton pursued them with his lights and siren activated,

and he radioed other police units for backup. He described the operator of

the ATV as a male with no helmet, a dark jacket, and blue jeans. The ATV

and dirt bike passed by two other marked police vehicles with activated

overhead lights, and then drove into an open field.

       Officer Barton and other officers, including Police Chief Robert Schurr,

pursued the fleeing vehicles on surrounding roads because it was too wet

and dangerous to follow them on the field.        While on a roadway, Officer

Barton observed the ATV and dirt bike approach his and Chief Schurr’s police

vehicles “head on,” (N.T. Trial, 4/16/14, at 66), at a distance of
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2
  Officer Barton testified that ATVs and dirt bikes are not allowed on public
roads because they are not licensed, are typically not insured, and are not
equipped with proper lighting or safety features. (See N.T. Trial, 4/16/14,
at 50-51).



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approximately fifty feet, and a speed of approximately thirty-five to forty

miles per hour.       The officers immediately stopped and exited from their

vehicles. The ATV and dirt bike passed by them and went off the roadway

into a grassy area. As the operators passed by, Officer Barton observed that

the driver of the ATV was wearing a dark jacket, blue jeans, a black mask on

the lower portion of his face, and “maybe a red sweatshirt” underneath a

dark jacket.     (Id. at 70).3     Chief Schurr drew his service pistol, and the

officers ordered the drivers of the ATV and dirt bike to stop. The men did

not comply and continued to flee on their vehicles. Chief Schurr was familiar

with Appellant from the community, and he relayed his belief that Appellant

was the operator of the ATV over police radio.

         Officer Jesse Smith then observed the ATV traveling on a nearby

roadway and began following it without activating his vehicle’s lights and

siren.    The ATV pulled into the driveway of Appellant’s residence and the

officer relayed the location over police radio. Officer Barton arrived at the

scene and the officers observed that the ATV’s engine was warm.            They

knocked on the door of the home and Appellant’s wife refused to let them in.

Chief Schurr arrived and saw Appellant running near the tree line of the

residence.    The chief ordered Appellant to sit down, and he complied.      In


____________________________________________


3
 Officer Barton described weather conditions at that time as a medium to
heavy rain, but stated “down low, it was clear,” and his view of Appellant
was not obstructed. (N.T. Trial, 4/16/14, at 105).



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response to questioning, Appellant denied that he had been driving the ATV.

He told police that he had been collecting black walnuts and drinking beer in

his driveway. However, he asked Chief Schurr: “what were you going to do,

shoot me?” (N.T. Trial, 4/17/14, at 216). He was wearing jeans and a red

sweatshirt and his clothing was wet and covered in mud and dirt from the

waist down. His breath smelled of alcohol and his eyes were bloodshot and

glassy.    Officer Barton identified Appellant as the man on the ATV.         The

officers arrested Appellant and transported him to Pottstown Hospital where

he submitted to a blood test. Testing on Appellant’s blood sample showed a

blood alcohol content (BAC) of 0.118 percent.4       Police seized the ATV and

determined that it belonged to Appellant’s neighbor, Eric James Mitchell. 5

        On April 17, 2014, following a two-day trial, a jury convicted Appellant

of the above-stated offenses. The trial court also found Appellant guilty of

two related summary traffic offenses.6 On July 25, 2014, after review of a

pre-sentence investigation report and a hearing, the court sentenced

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4
  The parties stipulated to the results of the blood test.     (See N.T. Trial,
4/16/14, at 95).
5
  At trial, Mr. Mitchell testified as a defense witness and stated that, on the
evening of Hurricane Sandy, he rode his ATV to a Wawa and then to
Appellant’s home. (See N.T. Trial, 4/17/14, at 278-79). He testified that he
arrived at Appellant’s residence approximately two minutes before the
police, and that when the police arrived, he went in the residence and stayed
inside. (See id. at 279-80).
6
    75 Pa.C.S.A. §§ 7721(a) and 3736(a).



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Appellant on the fleeing or attempting to elude a police officer and DUI

counts to an aggregate term of not less than one year and seven months’

nor more than three and one half years’ incarceration.

        On August 4, 2014, Appellant filed timely post-sentence motions,

claiming, inter alia, that the court should have imposed the sentences

concurrently, and challenging the weight of the evidence. 7       On September

26, 2014, following a hearing, the court entered an order vacating the DUI

sentence, reasoning that it merged with the sentence for fleeing or

attempting to elude a police officer. As a result, Appellant’s sentence was

reduced to a term of not less than one and one-half nor more than three

years’ incarceration. The court denied Appellant’s post-sentence motion in

all other respects. This timely appeal followed.8

        Appellant raises the following issue for our review: “[Whether]

Appellant is entitled to a new trial as facts presented at trial [indicating] that

the Appellant was not guilty were so clearly of greater weight that to have

ignored them or to give them equal weight with all the facts was to deny the

Appellant justice[?]” (Appellant’s Brief, at 5) (citation omitted).

        Our standard of review is as follows:
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7
    See Pa.R.Crim.P. 607(A)(3).
8
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on November 5, 2014. See
Pa.R.A.P. 1925(b). The trial court entered an opinion on January 12, 2015.
See Pa.R.A.P. 1925(a).



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            The finder of fact is the exclusive judge of the weight of
      the evidence as the fact finder is free to believe all, part, or none
      of the evidence presented and determines the credibility of the
      witnesses.

             As an appellate court, we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when the figure of Justice totters on her
      pedestal, or when the jury’s verdict, at the time of its rendition,
      causes the trial judge to lose his breath, temporarily, and causes
      him to almost fall from the bench, then it is truly shocking to the
      judicial conscience.

            Furthermore, 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and quotation marks omitted). “[T]he trial court’s denial of a

motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Weathers, 95 A.3d 908, 911

(Pa. Super. 2014), appeal denied, 106 A.3d 726 (Pa. 2015) (citation

omitted). When reviewing a weight claim, this Court carefully considers the

findings and reasons advanced by the trial court, because the trial judge had

the   opportunity   to   hear   and   see   the   evidence   presented.       See

Commonwealth v. Brown, 48 A.3d 426, 432 (Pa. Super. 2012), appeal

denied, 63 A.3d 1243 (Pa. 2013).




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      Here, the crux of Appellant’s claim is that the weight of the evidence

was insufficient to establish that he was the person who drove the ATV.

(See Appellant’s Brief 16-25). He argues that the jury’s verdict was based

on police testimony that was not credible. (See id.). He leads his argument

by pointing out a “contradiction” in Officer Barton’s testimony, namely, that

the officer initially testified that that he worked a twelve-hour shift on the

day of Hurricane Sandy, but later corrected this testimony when presented

with his duty log to clarify that he worked a twenty-four hour shift. (Id. at

17; see id. at 18).   Appellant also asserts that Officer Barton’s testimony

that the fleeing operator of the ATV wore “maybe a red sweatshirt” was

inconsistent with the officer’s police report, which fails to mention a red

sweatshirt.   (Id. at 19) (emphasis omitted).    Appellant contends that the

severe weather conditions impacted the officers’ abilities to observe

accurately the driver of the ATV. (See id. at 17, 21). He further alleges

that the jury and trial court ignored evidence favorable to his defense,

including Mr. Mitchell’s testimony that he, not Appellant, was riding the ATV

on the evening of Hurricane Sandy, immediately before the police arrived at

Appellant’s home. (See id. at 21-22). This issue lacks merit.

      Initially, regarding Appellant’s challenges to the credibility of the

officers’ testimony and identifications, and his assertion that evidence

favorable to him was disregarded, we reiterate that the jury as factfinder

was “free to believe all, part, or none of the evidence presented and


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determine[] the credibility of the witnesses.”        Boyd, supra at 1274.

Further, a review of the record fully supports the trial court’s finding that the

Commonwealth presented ample credible evidence that Appellant was the

driver of the ATV, and its conclusion that his challenge to the weight of the

evidence is meritless. (See Trial Court Opinion, 1/12/15, at 15, 27, 44, 58).

      Specifically, the record reflects that Officer Barton observed Appellant

from a close range during the incident. (See N.T. Trial, 4/16/14, at 76-77).

While at Appellant’s residence, the officer identified Appellant as “the guy

who was on the ATV.”        (Id. at 76).    Officer Barton made an in-court

identification of Appellant as the driver of the ATV, and he testified that

there was “[n]o doubt in [his] mind” that Appellant was the driver. (Id. at

106, 145; see id. at 76).

      Chief Schurr testified that, when he pointed his pistol at the operator

of the ATV, he was standing at a distance so close that he “could almost

reach out and touch him.” (N.T. Trial, 4/17/14, at 211). Chief Schurr stated

that he was familiar with Appellant from the community, that he could see

his face clearly during the incident, and that there was no doubt in his mind

that Appellant was the operator of the ATV.       (See id. at 204, 211, 218).

The chief also made an in-court identification of Appellant as the driver of

the ATV. (See id. at 208). Chief Schurr testified that, although Appellant

denied driving the ATV, he also asked: “what were you going to do, shoot




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me?” (id. at 216), indicating his awareness that the chief had pointed a

pistol at him during the pursuit.

      Based on the foregoing, after review of the record, we cannot conclude

that the trial court’s ruling on the weight claim constituted a palpable abuse

of discretion. See Boyd, supra at 1275. Accordingly, Appellant’s sole issue

on appeal does not merit relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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