J-S19003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    STEVEN HAROLD NEILSON                      :
                                               :
                      Appellant                :       No. 1279 MDA 2016

             Appeal from the Judgment of Sentence June 23, 2016
               In the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000957-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 21, 2017

        Appellant, Steven Harold Neilson, appeals from the judgment of

sentence entered in the Bradford County Court of Common Pleas, following

his bench trial convictions of driving under influence of alcohol (“DUI”) and

harassment.1 We affirm.

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

On September 26, 2015, Appellant attended a wedding reception at Chrystal

Potter’s house.     Chrystal Potter is Appellant’s girlfriend of four years and

Brian Potter’s ex-wife. Between 5:00 p.m. and 6:00 p.m., police responded

to a disturbance call, which resulted in Appellant’s removal from the

reception.    Appellant’s friends subsequently drove Appellant home in his
____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1) and 18 Pa.C.S.A. § 2709(a)(1), respectively.


_____________________________

*Former Justice specially assigned to the Superior Court.
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pickup truck.       Several hours later, Appellant returned to the reception,

where Brian Potter observed Appellant exit the driver’s side of his pickup

truck.    Brian Potter did not see anyone else in the vehicle with Appellant.

Brian     Potter   believed   Appellant    was   intoxicated   based   on   his   prior

consumption of alcohol that day, staggered gait, and bloodshot eyes.

Shortly after Appellant arrived, Appellant and Mr. Potter argued, which

resulted in a bystander calling the police.

         Pennsylvania State Trooper Michael Boyle responded to the scene

around 11:00 p.m. where he observed Appellant without a shirt.               Trooper

Boyle immediately noticed Appellant had slurred speech, bloodshot and

glassy eyes, a staggered gait, and smelled of alcohol. When Trooper Boyle

asked Appellant how he had returned to the reception, Appellant initially said

he had walked there. Upon further questioning, however, Appellant said he

had received a ride to the reception from his son, Blake Nielson. No one saw

Blake Neilson at the reception at any time. Trooper Boyle arrested Appellant

for disorderly conduct and discovered his car keys on his person during a

search incident to arrest.        Trooper Boyle transported Appellant to the

hospital, where Appellant refused blood alcohol testing.

         On January 18, 2016, the Commonwealth charged Appellant with

DUI—general impairment and harassment, and Appellant proceeded to a

bench trial on March 22, 2016.            At trial, Brian Potter maintained he saw

Appellant arrive at the reception alone and exit the driver’s side of his pickup


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truck.     Blake Neilson and Appellant both testified Blake Neilson dropped

Appellant off at the reception in his pickup truck. Blake Neilson also stated

he obtained a ride from his girlfriend after he dropped Appellant off at the

reception. Chrystal Potter further testified that Brian Potter was inside the

reception when Appellant returned to the event.             The court ultimately

convicted Appellant of DUI and harassment, and deferred sentencing

pending the preparation of a pre-sentence investigation (“PSI”) report.

         On June 23, 2016, the court sentenced Appellant to an aggregate term

of ten (10) days’ to six (6) months’ imprisonment.              On June 28, 2016,

Appellant timely filed a post-sentence motion, which the court denied on

June 29, 2016. Appellant timely filed a notice of appeal on July 29, 2016.

On August 10, 2016, the court ordered Appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and

Appellant timely complied on August 11, 2016.

         Appellant raises the following issue for our review:

            WAS THE VERDICT OF GUILTY OF DRIVING UNDER THE
            INFLUENCE OF ALCOHOL AGAINST THE WEIGHT OF THE
            EVIDENCE   WHERE    UNCONTRADICTED   TESTIMONY
            SHOWED THE WITNESS WHO OBSERVED [APPELLANT]
            OPERATE A MOTOR-VEHICLE WAS NEVER IN A POSITION
            TO ACTUALLY OBSERVE [APPELLANT]?

(Appellant’s Brief at 7).

         Our standard of review for a challenge to the weight of the evidence is

as follows:

            The weight of the evidence is exclusively for the finder of

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         fact who is free to believe all, part, or none of the evidence
         and to determine the credibility of the witnesses. An
         appellate court cannot substitute its judgment for that of
         the finder of fact. Thus, we may only reverse the [trial]
         court’s verdict if it is so contrary to the evidence as to
         shock one’s sense of justice. 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)

(internal citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Maureen T.

Beirne, we conclude Appellant’s issue merits no relief.         The trial court

opinion comprehensively discusses and properly disposes of the question

presented.    (See Trial Court Opinion, filed November 3, 2016, at 1-4)

(finding: court convicted Appellant of DUI and harassment based on its

determination that testimony of Commonwealth witnesses was more credible

than testimony of defense witnesses; thus, Appellant’s challenge to weight

of evidence fails). The record supports the court’s decision. Accordingly, we

affirm on the basis of the trial court’s opinion.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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