J-A18030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

VIKRAM S. SIDHU

                        Appellant                     No. 774 MDA 2013


          Appeal from the Judgment of Sentence of April 2, 2013
             In the Court of Common Pleas of Juniata County
            Criminal Division at No.: CP-34-SA-0000012-2013


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                            FILED AUGUST 21, 2014

     Vikram Sidhu appeals the April 2, 2013 judgment of sentence, which

was imposed after Sidhu was convicted of the summary offense of driving

while operating privilege is suspended or revoked      DUI related, 75 Pa.C.S.

§ 1543(b)(1). Sidhu challenges the weight of the evidence presented at trial

to convict him of this crime. We affirm.

     The trial court set forth the factual history of this case as follows:

     [Sidhu] was found guilty of committing the summary offense of
     driving while operating privilege is suspended or revoked[ ]DUI
     related, in violation of [section 1543(b)]. In relevant part, the
     statute reads as such:

        A person who drives a motor vehicle on a highway or
        trafficway of this Commonwealth at a time when the

        condition of acceptance of Accelerated Rehabilitative
        Disposition for a violation of section 3802 . . . shall, upon
        conviction, be guilty of a summary offense and shall be
        sentenced to pay a fine of $500 and to undergo
J-A18030-14


        imprisonment for a period of not less than 60 days nor
        more than 90 days.

     [] 75 Pa.C.S. § 1543(b)(1).

     At trial, the Commonwealth entered into evidence a Certified
     Driver History Report [that was] prepared [on] December 17,
     2012.
     privileges were suspended on the date in question (December
     14, 2012) in relation to a previous violation of the Vehicle Code,
     namely § 3802(c), driving under the influence of alcohol or
     controlled substances.

     Additionally, the Commonwealth offered as witnesses two county
     probation officers, both of whom: 1) are familiar with [Sidhu]; 2)
     saw him enter a vehicle on December 14, 2012; and 3) saw him
     proceed to drive that vehicle on a public street in Juniata
     County, Pennsylvania.

     On the day in question, [Sidhu] met with Probation Officer
     Abigail Krepps at her office in Juniata County. Krepps was aware


     After this meeting, Krepps was unable to verify that [Sidhu] had
     arranged for a friend to provide transportation (as he had
     indicated). Krepps and a second probation officer (P.O. Jeremy
     Kensinger) decided to investigate further.         Like Krepps,
     Kensinger was familiar with [Sidhu], having recently taught an
     Alcohol Highway Safety School class in which [Sidhu]
     participated.

     Krepps and Kensinger both testified at trial that they witnessed
     [Sidhu] enter into a vehicle and drive away.          The officers
     positively identified [Sidhu], and testified that he was in control
     of a motor vehicle on a public street in Juniata County,
     Pennsylvania.

     Krepps testified that when [Sidhu] entered the vehicle, she was
     only thirty (30) yards away. Kensinger testified that he was
     near Krepps when he saw [Sidhu] enter the vehicle, and
     estimated that they were approximately thirty (30) to forty (40)
     yards away.

                                                  -4 (citations to notes of

testimony omitted).

                                    -2-
J-A18030-14



     At the conclusion of a de novo summary trial, the trial court found

Sidhu guilty of the crime charged.        On April 2, 2013, the trial court

sentenced Sidhu to serve seventy-five days in jail and to pay a fine of $500.

On April 30, 2013, Sidhu filed a notice of appeal. On May 7, 2013, the trial

court directed Sidhu to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).      On May 28, 2013, Sidhu timely

complied. On July 17, 2013, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

                                                                   the lower

court abused its discretion in finding [Sidhu] guilty since the verdict was




must consider whether Sidhu has waived the claim for failure to include it in

his Rule 1925(b) statement.    We must abide by the bright line rule that



           Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)

(citing Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).           In his

Rule 1925(b) statement, Sidhu raised the following two issues:

     1. The Court erred and/or abused its discretion in finding
        [Sidhu] guilty at his trial.  [Sidhu] maintains that the
        evidence at his trial was not sufficient to establish with
        respect to either Abbey Krepps, Terry Stoner, or Jeremy

        suspension, DUI related, in that one or more of the witnesses
        lost sight of [Sidhu] during the alleged commission of this
        charge.


                                    -3-
J-A18030-14


      2. Witnesses also testified that they were at some distance from
         the alleged crime which would also give rise to reasonable
         doubt for which the Court abused its discretion in finding
         [Sidhu] guilty. [Sidhu] avers that there was insufficient
         evidence, therefore, to find him guilty.

Rule 1925(b) Statement, 5/28/2013, at 1-2 (emphasis added).

      At first glance, it appears that Sidhu raised a challenge only to the

sufficiency of the evidence. However, upon closer inspection, the thrust of

at least a portion of the issues raised by Sidhu represents a challenge to the

weight of the evidence. We first note the differences between a challenge to

the weight and a challenge to the sufficiency of the evidence, as our

Supreme Court explained them in Commonwealth v. Widmer, 744 A.2d

745, 751-52 (Pa. 2000):

      The distinction between these two challenges is critical. A claim
      challenging the sufficiency of the evidence, if granted, would
      preclude retrial under the double jeopardy provisions of the Fifth
      Amendment to the United States Constitution, and Article I,
      Section 10 of the Pennsylvania Constitution, Tibbs v. Florida,
      457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604
      (Pa. 1983), whereas a claim challenging the weight of the
      evidence if granted would permit a second trial. Id.

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Commonwealth v. Karkaria, 625 A.2d
      1167 (Pa. 1993). Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. Commonwealth v. Santana,
      333 A.2d 876 (Pa. 1975). When reviewing a sufficiency claim
      the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit



                                     -4-
J-A18030-14


      of all reasonable inferences to be drawn from the evidence.
      Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991).

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict.            Commonwealth v.
      Whiteman, 485 A.2d 459 (Pa. Super. 1984). Thus, the trial
      court is under no obligation to view the evidence in the light
      most favorable to the verdict winner. Tibbs, 457 U.S. at 38 n.
      11. An allegation that the verdict is against the weight of the
      evidence is addressed to the discretion of the trial court.
      Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994). A new
      trial should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion.       Thompson v. City of
      Philadelphia, 493 A.2d 669, 673 (Pa. 1985). A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror.   Rather, the role of the trial judge is to determine that

      greater weight that to ignore them or to give them equal weight
                                          Id.

Widmer, 744 A.2d at 751-

evidence challenge concedes that sufficient evidence exists to sustain the

verdict but quest                                         Commonwealth v.

Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (quoting Commonwealth v.

Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005)).



Rule 1925(b) statement, a closer review reveals that the true nature of his

claim is a challenge to the weight of the evidence. Indeed, Sidhu claimed

that the critical trial witnesses lost sight of him after he left the probation

office, and that those witnesses were unable to observe what they claimed


                                     -5-
J-A18030-14



at trial to have observed due to the considerable distance from which they

were viewing Sidhu.          Stated otherwise, Sidhu did not claim that the

evidence, as presented at trial, did not amount to proof beyond a reasonable

doubt.    Rather, Sidhu claimed that such evidence should not have been

believed due to either a loss in visual contact or the distance from which the



             Lewis, supra. Sidhu also sought review of those claims under an

abuse of discretion standard, which as we detail below, is the proper

standard of review for a challenge to the weight of the evidence.

       We caution counsel to avoid conflating these issues in the future, and

to utilize the proper terminology in order to, at minimum, avoid the risk of

                                          -advised and inartful use of the words



weight of the evidence into a challenge to the sufficiency of the evidence.



evidence to be waived. We now turn to the merits of that issue.1

____________________________________________


1
      Typically, to preserve a challenge to the weight of the evidence, the
issue first must be raised in a post-sentence motion. Commonwealth v.
Griffin, 65 A.3d 932, 938 (Pa. Super. 2013). However, post-sentence
motions are not permitted following a judgment of sentence issued following
a summary trial.      See                                                 -
sentence motion in summary case appeals following a trial de novo in the

Court, even though he did not file a post-sentence motion raising a weight
challenge in the first instance.



                                           -6-
J-A18030-14



      When reviewing a weight of the evidence claim, we consider the

following:

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Widmer, 744 A.2d at 751-52; Brown, 648
      A.2d at 1189. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Widmer,


      clearly of greater weight that to ignore them or to give them
                                                           Id. at 320,
      744 A.2d at 752 (citation omitted). It has often been stated that

      contra
      the award of a new trial is imperative so that right may be given
                                       Brown, 648 A.2d at 1189.


      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.
         Brown, 648 A.2d at 1189. 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
                                                   s determination
         that the verdict is against the weight of the evidence.
         Commonwealth v. Farquharson, 354 A.2d 545 (Pa.
         1976). One of the least assailable reasons for granting or

         verdict was or was not against the weight of the evidence
         and that a new trial should be granted in the interest of
         justice.

      Widmer, 744 A.2d at 753 (emphasis added).




                                    -7-
J-A18030-14



Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

modified).

      Our task in evaluating a weight challenge is as follows:


      palpable abuse of discretion, an appellate court must examine
      the record and assess the weight of the evidence; not however,
      as the trial judge, to determine whether the preponderance of
      the evidence opposes the verdict, but rather to determine
      whether the court below in so finding plainly exceeded the limits
      of judicial discretion and invaded the exclusive domain of the
      jury. Where the record adequately supports the trial court, the
      trial court has acted within the limits of its judicial discretion.

Brown, 648 A.2d at 1190 (citation omitted).

      Sidhu contends that the trial court should not have believed either

                                                                into the car and

drove away actually was Sidhu. Sidhu points to the fact that, during cross-




Notes of T

Kensinger could not positively identify Sidhu as the driver of the vehicle

either, because Kensinger returned to the probation office upon seeing Sidhu

before Sidhu ever entered a vehicle. Thus, Sidhu argues, Kensinger could

not have seen him enter the car and drive away.                In light of these

contradictions   and   deficiencies,   Sidhu   argues   that   the   verdict   that

necessarily was predicated upon a positive identification of him as the driver

was against the weight of the evidence. We disagree.


                                       -8-
J-A18030-14




testify to the above-quoted statement.      However, that statement was in

reference to her observations once the car drove away.         Regarding her

identification of Sidhu entering the car and driving away, Krepps testified as

follows:

         [w]hen he    when I saw him walking around behind the car, I
         saw his back. But then he walked      the car was parked facing
         me. He walked behind the back of the car and turned around, so
         then he was actually facing me as he got into the car and then
         the car was facing me, so I could see him, his face, and he was
         [behind] the wheel.

N.T. at 17.

         Kensinger also made a positive identification of Sidhu.    Kensinger

knew Sidhu from teaching an alcohol awareness class, in which Sidhu was a

student. On the date in question, Kensinger observed Sidhu walking down

the street and past the probation office.    Although Kensinger immediately

went back into the probation office, he returned to the street shortly

thereafter with Krepps. From approximately thirty to forty yards, Kensinger

and Krepps watched Sidhu enter his vehicle and hastily drive it away. N.T.

at 28.

         In sum, the trial court received evidence, including (inter alia)

testimony from probation officers Krepps and Kensinger, identifying Sidhu as

the person who entered the vehicle and drove away.            The trial court

observed these witnesses, assessed their testimonial demeanor, and

determined that it would credit their reports. The record amply supports the

                                      -9-
J-A18030-14




     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




                                 - 10 -
