J-S15030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    HISHEAM LAMAR ROBERTSON,                   :
                                               :
                      Appellant                :   No. 1721 EDA 2017
                                               :

            Appeal from the Judgment of Sentence February 1, 2017
                In the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0000251-2016

BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                   FILED JULY 06, 2018

        Appellant, Hisheam Lamar Robertson, appeals from the Judgment of

Sentence entered by the Chester County Court of Common Pleas following his

convictions after a bench trial of, inter alia, Driving Under the Influence

(“DUI”) (driving under the combined influence of alcohol and a drug or

combination of drugs), Possession of a Small Amount of Marijuana, and

several summary traffic offenses.1 Appellant challenges only the weight of the

evidence. We affirm.

        The trial court set forth the underlying facts and we need not repeat

them in detail. See Trial Court Opinion, filed 7/21/17, at 1-5, 10-22. Briefly,

on August 22, 2015, Pennsylvania State Police Trooper Joseph Carlson pulled


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1
    75 Pa.C.S. § 3802(d)(3); and 35 P.S. § 780-113(a)(31), respectively.
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Appellant over for speeding and weaving in a work zone, and striking the white

line dividing the lanes once. During the stop, Appellant failed to produce his

driver’s license, registration, and financial responsibility cards, and he

provided a false name to the officer. Appellant appeared overly nervous and

was “giggly” during the stop.         The mobile video recorder in the police car

recorded Appellant’s erratic driving and his conduct during and after the stop.

Appellant’s eyes appeared bloodshot and glassy, and both Appellant and the

vehicle smelled like alcohol and marijuana.

        Appellant failed several field sobriety tests. Although Appellant agreed

to provide a breath sample, he evaded the test and failed to provide a testable

breath sample. After initially denying that he had been drinking during the

stop, Appellant later admitted that he had consumed one Olde English2 before

driving. Appellant claimed that he was exhausted following a twelve-hour shift

at work. Based on his extensive experience, Trooper Carlson believed that

Appellant was impaired by alcohol and marijuana to an extent that rendered

him incapable of safely driving, and arrested Appellant.         Trooper Carlson

recovered marijuana from the center console in the vehicle.

        Based on Trooper Carlson’s observations, the Commonwealth charged

Appellant with, among other things, DUI (driving under the combined

influence of alcohol and a drug or combination of drugs), Possession of a Small



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2
    Olde English 800 is a brand of malt liquor.

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Amount of Marijuana, and several summary traffic offenses. After a bench

trial, the trial court convicted Appellant of the above offenses. On February

1, 2017, the trial court sentenced Appellant to an aggregate term of 72 hours

to 6 months’ incarceration, followed by 30 days’ probation. Appellant filed a

timely Post-Sentence Motion, which the trial court denied on May 1, 2017.

       On May 30, 2017, Appellant filed a timely Notice of Appeal.         Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       In his sole issue on appeal, Appellant challenges the weight of the

evidence when he states that “[t]he facts failed to establish that the trooper

ever observed in the Appellant any indicia of impairment that didn’t speak

equally to indicia of exhaustion.” Appellant’s Brief at 14.3

       When considering challenges to the weight of the evidence, we apply

the following precepts.       “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact.     Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.



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3
   The Commonwealth avers that Appellant “is challenging the arresting
officer’s credibility and not the weight of the evidence.” Commonwealth’s Brief
at 14. A challenge to the fact-finder’s credibility determinations is considered
a challenge to the weight of the evidence. See Commonwealth v. Gibbs,
981 A.2d 274, 281-82 (Pa. Super. 2009).

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Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

      Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“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 [or is not] against the weight of the

evidence.” Id. at 546. “One of the least assailable reasons for granting or

denying a new trial is the lower 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.” Id.

      Furthermore, “in order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (internal quotation

marks and citation omitted). As our Supreme Court has made clear, reversal

is only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations omitted, emphasis in original).




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      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014). For that reason, the trial court need not view the evidence in the light

most favorable to the verdict winner, and may instead use its discretion in

concluding whether the verdict was against the weight of the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 2000).

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

the applicable law, and the comprehensive and well-reasoned Opinion of the

Honorable Anthony A. Sarcione, we conclude that there is no merit to

Appellant’s challenge to the weight of the evidence. The trial court carefully

evaluated the record and the evidence in reviewing Appellant’s weight claim.

See Trial Court Opinion at 22-28.

      Appellant essentially asks us to reassess the credibility of the police

officer and reweigh the testimony and evidence presented at trial. We cannot

and will not do so. Our review of the record shows that the evidence is not

tenuous, vague, or uncertain, and the verdict was not so contrary to the

evidence as to shock the court’s conscience.

      We discern no abuse of discretion in the trial court’s denial of Appellant’s

weight claim.   Accordingly, Appellant is not entitled to relief on his weight

claim.

      Judgment of Sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2018




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