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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
LORI ANN CHAPMAN,                         :          No. 426 WDA 2019
                                          :
                         Appellant        :


       Appeal from the Judgment of Sentence Entered February 5, 2019,
                 in the Court of Common Pleas of Blair County
               Criminal Division at No. CP-07-CR-0002378-2017


BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 04, 2020

        Lori Ann Chapman appeals from the February 5, 2019 judgment of

sentence1 of six months’ probation entered in the Court of Common Pleas of

Blair County. We affirm.

        The record reveals that on September 7, 2018, appellant was convicted,

in a bench trial, of driving under the influence – general impairment (“DUI”),

careless driving, and operating a vehicle without a valid inspection.2 The trial

court found appellant not guilty of disregard of traffic lane and failure to drive




1We note that the sentencing order was executed on January 31, 2019, but
was not entered on the docket until February 5, 2019. The caption has been
updated to reflect the date the sentencing order was entered.

2   75 Pa.C.S.A. §§ 3802(a)(1), 3714 and 4703(a), respectively.
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at a safe speed and to use a seatbelt.3 On February 5, 2019, appellant was

sentenced to six months’ probation and ordered to pay fines and costs.

        Appellant filed timely post-sentence motions, which the trial court

denied. Appellant subsequently filed a timely notice of appeal. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. Thereafter, the

trial court filed its Rule 1925(a) opinion.

        Appellant raises the following issues for our review:

              I.    Whether the [trial] court erred in finding
                    sufficient evidence to support the verdict
                    because [the] totality of the circumstances did
                    not support a conviction[?]

              II.   Whether the [trial c]ourt erred in denying
                    [appellant’s] motion for judgment of acquittal as
                    the evidence was not weighty to support a
                    conviction[?] The totality of the circumstances
                    did not support a conviction.

Appellant’s brief at 6.

        Appellant first claims the evidence was insufficient to support her

conviction. This court has held that in order to properly preserve a sufficiency

of the evidence claim, the Rule 1925(b) statement must specify the element

or    elements of the     crime   upon   which the    evidence   is insufficient.

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008).

Otherwise, the sufficiency claim is waived and neither the Commonwealth’s




3   75 Pa.C.S.A. §§ 3309, 3361, and 4581(a)(2)(i), respectively.


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lack of objection nor the trial court’s addressing the issue in its Rule 1925(a)

opinion obviates waiver.4 Id.

        Here, a review of appellant’s Rule 1925(b) statement demonstrates that

appellant failed to identify the element or elements of the crime, as well as

the crime, itself, upon which the sufficiency of the evidence is being

challenged.5    (See appellant’s Rule 1925(b) statement, 4/15/19 at ¶ 2(a)

(stating, “[t]he [trial] court erred in denying a motion to dismiss because of

insufficient evidence”).) Therefore, appellant has waived this issue.

        Appellant’s second issue raises a challenge to the weight of the evidence

to support the DUI conviction.6


4   We note that the Commonwealth did not file a brief in this matter.

5 Although a review of appellant’s brief demonstrates that appellant challenges
the sufficiency of the evidence as to the element “rendered incapable of safely
driving” necessary for a DUI conviction, this does not circumvent waiver of
the issue.      (See appellant’s brief at 9-10; see also 75 Pa.C.S.A.
§ 3802(a)(1).) Moreover, a review of appellant’s argument demonstrates that
it does not set forth an argument in support of a sufficiency claim but, rather,
asks this court to do nothing more than reweigh the evidence in support of a
weight claim, discussed infra.

6 We note that appellant’s second issue appears to raise a second claim of
insufficient evidence along with a weight claim by alleging that the trial court
erred in denying the motion for judgment of acquittal and denying the post-
sentence motion. (See appellant’s brief at 6; see also Commonwealth v.
Hutchinson, 947 A.2d 800, 805 (Pa.Super. 2008) (stating, “A motion for
judgment of acquittal challenges the sufficiency of the evidence to sustain a
conviction on a particular charge.”), appeal denied, 980 A.2d 606 (Pa.
2009); Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)
(emphasizing that sufficiency claims and weight claims are two distinct
challenges). A review of appellant’s brief and her Rule 1925(b) statement,
however, reveals appellant is challenging the weight of the evidence to
support her DUI conviction. (See appellant’s brief at 11-12; see also


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               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 [trial] 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.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa.Super. 2014), citing

Widmer, 744 A.2d at 745. The trial court abuses its discretion “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.”   Horne, 89 A.3d at 285-286 (citation omitted).          In order for an

appellant to prevail on a weight of the evidence claim, “the evidence must be

so tenuous, vague and uncertain that the verdict shocks the conscience of the

court.”      See Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super.

2003) (citation and internal quotation marks omitted), appeal denied, 833

A.2d 143 (Pa. 2003).




appellant’s Rule 1925(b) statement, 4/15/19 at ¶ 2(b) (stating, “[t]he [trial]
court erred in denying a motion to dismiss because of lack of weight of the
evidence”).) Moreover, appellant waives a sufficiency claim for the reasons
stated previously.


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      Here, appellant argues the trial court erred in denying her post-sentence

motion challenging the weight of the evidence to support a DUI conviction.

(Appellant’s brief at 11-12.) Specifically, appellant contends the weight of the

evidence does not support a finding that she was incapable of safely driving.

(Id.) In so doing, appellant’s brief sets forth the same argument, verbatim,

as was set forth for the sufficiency claim. (Compare id. at 9-10 with 11-12.)

At the conclusion of her argument, appellant makes the bald assertion, “the

trial court abused its discretion in finding [appellant] guilty.” (Id. at 12.)

      Appellant’s argument, “[t]his may be a close case and it is imperative

that this court examine the facts in this case through the lense [sic] of

‘incapable of safe driving[,]’” (id.) invites us to do nothing more than reweigh

the evidence in an attempt to convince us to reach a result different than the

one reached by the trial court. The trial court, as fact-finder, had the duty to

determine the credibility of the testimony and evidence presented at trial.

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

omitted). Appellate courts cannot and do not substitute their judgment for

that of the fact-finder. See id. Therefore, we decline appellant’s invitation to

reweigh the evidence.

      Upon review of the record, we discern no abuse of discretion on the part

of the trial court in denying appellant’s post-sentence motion based on the

allegation that the DUI conviction was against the weight of the evidence.

Therefore, appellant’s claim is without merit.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/4/2020




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