J-A20031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ALFRED GERARD NOEL                         :
                                               :
                       Appellant               :       No. 357 MDA 2019

       Appeal from the Judgment of Sentence Entered December 4, 2018
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0002724-2016


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                     FILED SEPTEMBER 25, 2019

        Appellant, Alfred Gerard Noel, appeals from the judgment of sentence

entered in the Cumberland County Court of Common Pleas, following his bench

trial convictions for driving under the influence (“DUI”)—controlled substance

and possession of a small amount of marijuana.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts of this case. Therefore, we have no need to restate them. Procedurally

we add, on November 6, 2018, Appellant proceeded to a bench trial, where

Trooper Catherine Long, the arresting officer, testified. That same day, the

court convicted Appellant of one count each of DUI—controlled substance and

possession of a small amount of marijuana. The court sentenced Appellant


____________________________________________


1   75 Pa.C.S.A. § 3802(d)(2) and 35 P.S. §780-113(a)(31)(i), respectively.
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on December 4, 2018, to an aggregate term of seventy-two (72) hours to six

(6) months’ incarceration, plus costs and fines.       On December 12, 2018,

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

February 25, 2019. Appellant filed a timely notice of appeal on February 27,

2019.     The court ordered Appellant on March 1, 2019, to file a concise

statement of errors complained of on appeal, per Pa.R.A.P. 1925(b); Appellant

timely complied on March 7, 2019.

        Appellant raises two issues for our review:

           DID THE TRIAL COURT ERR WHEN IT CONCLUDED THAT
           THE COMMONWEALTH PRESENTED SUFFICIENT EVIDENCE
           TO SUSTAIN THE VERDICT AT EACH COUNT?

           DID THE TRIAL COURT ERR WHEN IT CONCLUDED THAT
           THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE
           EVIDENCE SO AS TO SHOCK ONE’S SENSE OF JUSTICE?

(Appellant’s Brief at 5).

        A challenge to the sufficiency of the evidence implicates the following

legal principles:

           The standard we apply in reviewing the sufficiency of the
           evidence is whether viewing all the evidence admitted at
           trial in the light most favorable to the verdict winner, there
           is sufficient evidence to enable the fact-finder to find every
           element of the crime beyond a reasonable doubt. In
           applying [the above] test, we may not weigh the evidence
           and substitute our judgment for the fact-finder. In addition,
           we note that the facts and circumstances established by the
           Commonwealth need not preclude every possibility of
           innocence. Any doubts regarding a defendant’s guilt may
           be resolved by the fact-finder unless the evidence is so weak
           and inconclusive that as a matter of law no probability of
           fact may be drawn from the combined circumstances. The
           Commonwealth may sustain its burden of proving every

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         element of the crime beyond a reasonable doubt by means
         of wholly circumstantial evidence. Moreover, in applying the
         above test, the entire record must be evaluated and all
         evidence actually received must be considered. Finally, the
         [finder] of fact while passing upon the credibility of
         witnesses and the weight of the evidence produced, is free
         to believe all, part or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005).

      The following principles apply to a weight of the evidence claim:

            The weight of the evidence is exclusively for the finder
            of 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…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). 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)

(most internal citations omitted).

      The Vehicle Code defines the offense of DUI, in relevant part, as follows:

         § 3802.     Driving under influence of alcohol or
         controlled substance

                                     *    *    *

              (d) Controlled substances.—An individual may
         not drive, operate or be in actual physical control of the
         movement of a vehicle under any of the following


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         circumstances:

                                  *    *      *

                     (2) The individual is under the influence of a drug
               or combination of drugs to a degree which impairs the
               individual’s ability to safely drive, operate or be in
               actual physical control of the movement of the
               vehicle.

75 Pa.C.S.A. § 3802(d)(2).     Additionally, the Controlled Substance, Drug,

Device and Cosmetic Act defines the offense of possession of a small amount

of marijuana, in relevant part, as follows:

         § 780-113. Prohibited acts; penalties

            (a) The following acts and the causing thereof within
         the Commonwealth are hereby prohibited:

                                  *    *      *

            (31)       Notwithstanding other subsections of this
         section, (i) the possession of a small amount of marihuana
         only for personal use….

            For purposes of this subsection, thirty (30) grams of
         marihuana or eight (8) grams of hashish shall be considered
         a small amount of marihuana.

35 P.S. § 780-113(a)(31)(i).

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

applicable law, and the well-reasoned opinion of the Honorable Edward E.

Guido, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed March 26, 2019, at 3-4) (finding: (1-2) in light

of Trooper Long’s training and experience, Appellant’s attempt to hide

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suspected marijuana, and Appellant’s admission that he had smoked

marijuana recently, evidence showed substance Trooper Long observed on

vehicle window track was marijuana; regarding DUI—controlled substance

charge, Appellant admitted to officers during stop he had smoked marijuana

earlier that evening, and marijuana was present on driver-side window track

of vehicle; additionally, evidence indicated Appellant was impaired at time of

stop; Appellant was under influence of marijuana to degree that impaired his

ability to drive safely; evidence was sufficient to convict Appellant of DUI—

controlled substance; moreover, evidence at trial provided no other

reasonable explanation for multiple indications of Appellant’s impairment;

verdict did not shock conscience and was not against weight of evidence). The

record supports the trial court’s rationale. Accordingly, we affirm based on

the trial court’s opinion.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/25/2019




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