J-S62021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JASON W. BEATTY

                            Appellant                   No. 429 WDA 2015


          Appeal from the Judgment of Sentence September 22, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0016297-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                          FILED OCTOBER 16, 2015

        Following a bench trial, the trial court found Jason Beatty guilty of

driving under the influence of a high rate of alcohol1 and careless driving.2

The court sentenced Beatty to 90 days of intermediate punishment plus one

year of concurrent probation.3

     In this direct appeal, Beatty raises two issues:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S. § 3802(b) (driving while alcohol concentration in the individual’s
blood or breath is at least .10% but less than .16%).
2
    75 Pa.C.S. § 3714.
3
   The court did not impose further penalty on the other convictions. Beatty
filed a timely post-sentence motion challenging the weight of the evidence,
which the trial court denied, and a timely notice of appeal. Both Beatty and
the trial court complied with Pa.R.A.P. 1925.
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   1. Whether the evidence was insufficient to sustain Beatty’s DUI
      and careless driving convictions as the Commonwealth did not
      prove, beyond a reasonable doubt, that he drove the vehicle?

   2. Were the verdicts of guilt against the weight of the evidence
      because the trial court ignored overwhelming evidence that []
      Beatty was not driving the car?

Brief of Appellant, at 5. We affirm.

        Beatty first challenges the sufficiency of the evidence. Our standard of

review for such challenges is well-settled:

        [W]hether[,] viewing all the evidence admitted at trial in the
        light most favorable to the [Commonwealth as 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 element of the crime beyond a
        reasonable doubt by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super.2015).

        The following evidence was adduced during trial: in the early morning

hours of May 29, 2013, Officer Eric Lakin, a 24 year veteran of the North

Versailles Township Police Department, responded to a report of an

automobile accident on Penn Avenue. N.T., 9/22/14, at 5-6. At the scene,

Officer Lakin observed that a Pontiac G6 had struck a pickup truck. Id. at 6,

9-10.     A female, Amanda Delsignore, was present, and Officer Lakin

described her as “hysterical” and “frantic.” Id. at 6, 8. Beatty was lying on

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his back in a field across the street from the collision scene, lapsing in and

out of consciousness and “slightly combative”. Id. at 6-7, 18. When Officer

Lakin asked if he had been involved in an accident, Beatty denied being an

occupant of the vehicle. Id. at 7, 18. There was a laceration on the left

side of Beatty’s head near his eye, and blood from the laceration ran down

his face.   Id. at 7.   Officer Lakin detected a strong odor of alcohol on

Beatty’s breath. Id. at 8.

      A paramedic crew arrived and immobilized Beatty. Id. Officer Lakin

spoke with Delsignore, who was upset and crying, and she stated that “she

was the passenger in the vehicle and [Beatty] was the driver, [and] that

they had been proceeding up Penn Avenue, having an argument” prior to the

accident.   N.T., 9/22/14, at 9.   Delsignore also told Officer Volker, who

arrived after Officer Lakin, that Beatty was the driver of the vehicle and she

was the passenger. Id. at 24-25, 26.

      The Pontiac had struck the parked pickup truck head on. N.T.,

9/22/14, at 9.   After the impact, the Pontiac spun around and ended up

parallel with and up against the pickup truck. Id. at 9, 15, 16. Officer Lakin

noted that the Pontiac’s driver’s side door contained blood smearing, and the

pickup truck had blood smearing on it as well. Id. at 9-10. Officer Lakin

testified that “the blood smear would be consistent with the driver of the

vehicle sustaining injury, as there [were] no other injuries to Delsignore that

were visible to me at the time.” Id. at 10. Delsignore “stated that she was


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not injured.”   Id. at 13. Nor was Delsignore bleeding; the only source of

blood was from Beatty. Id. at 22. There was no damage to the passenger

side of the Pontiac. Id. at 15. The driver’s side window of the Pontiac “had

been shattered out” by the “secondary side impact” with the pickup truck.

Id. at 16. The blood smears on the inside of the driver’s side front door of

the Pontiac were just below where the window would have been had it not

shattered. Id. at 16, 22. The blood smears on the door of the pickup truck

were right next to the driver’s side of the Pontiac. Id. at 16, 22. Because

the driver’s side of the Pontiac was pinned against the pickup truck, nobody

could have exited the driver’s side of the Pontiac; the only way to exit was

the passenger side.    Id. at 17, 22. Delsignore told Officer Lakin that she

had helped extricate Beatty from the vehicle.

       Paramedics transported Beatty to the hospital, where a blood draw

revealed that his blood alcohol content was .110%. N.T., 9/22/14, at 12.

       Delsignore testified that she went to the hospital after the accident,

and that her mother was also at the hospital, speaking with Officer Lakin on

the phone. N.T., 9/22/14, at 31, 36. Officer Lakin told Delsignore’s mother

that Delsignore had said at the accident scene that Beatty was driving the

car.   Id.   Delsignore’s mother relayed this information to Delsignore, and

Delsignore stated that she was the driver. Id. Delsignore insisted at trial

that she struck the pickup truck, and the impact threw Beatty from the

passenger seat to the driver’s side, where his head struck the driver’s side


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window. Id. at 28-29, 35. She claimed that neither she nor Beatty were

wearing seatbelts before the accident, and after the collision, she crawled

over Beatty and pulled him out of the car. Id. at 29, 33. Beatty is 6’1” or

6’2”, while Delsignore is only 5’6”. Id. at 33.

      75 Pa.C.S. § 3802(b) provides:

      An individual may not drive, operate or be in actual physical
      control of the movement of a vehicle after imbibing a sufficient
      amount of alcohol such that the alcohol concentration in the
      individual’s blood or breath is at least 0.10% but less than
      0.16% within two hours after the individual has driven, operated
      or been in actual physical control of the movement of the
      vehicle.

The term “operate”

      necessitates evidence of actual, physical control of either the
      machinery of the motor vehicle or the management of the
      vehicle’s movement, but does not require evidence that the
      vehicle was in motion. Commonwealth v. Johnson, 833 A.2d
      260, 263 (Pa.Super.2003). Under Pennsylvania law, an
      eyewitness is not required to establish one was driving,
      operating, or in actual physical control of a motor vehicle, but,
      rather, the Commonwealth may establish the same through
      wholly circumstantial evidence. Id. ‘Our precedent indicates that
      a combination of the following factors is required in determining
      whether a person had ‘actual physical control’ of an automobile:
      the motor running, the location of the vehicle, and additional
      evidence showing that the defendant had driven the vehicle.’
      Commonwealth v. Brotherson, 888 A.2d 901, 904
      (Pa.Super.2005) (citing Commonwealth v. Woodruff, [] 668
      A.2d 1158, 1161 ([Pa.Super.]1995)). In addition, when the
      location of the vehicle supports an inference that it was driven,
      this inference will serve as a key factor in a finding of actual
      control; conversely, where the location of a vehicle supports an
      inference that it was not driven, this Court has rejected the
      inference of actual control. Brotherson, 888 A.2d at 905. In
      Brotherson, we determined that “[t]he highly inappropriate
      location of the car—on the basketball court of a gated children’s



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     playground—created a strong inference that it was an already
     intoxicated [a]ppellant who had driven the car to that spot.” Id.

Commonwealth v. Young, 904 A.2d 947, 954 (Pa.Super.2006).

     Although Beatty does not dispute that his blood alcohol content was

over .10%, he argues that the evidence was insufficient to prove that he

was driving the Pontiac.     Viewed in the light most favorable to the

Commonwealth,     the   evidence   was   sufficient   to   establish   beyond   a

reasonable doubt that Beatty drove the Pontiac. Delsignore admitted to two

police officers at the accident scene that Beatty was the driver and she was

the passenger, and the crash occurred because they were having an

argument.   The physical evidence also proves that Beatty was the driver.

The blood smears on the vehicles were found only to the left of the driver’s

seat of the Pontiac -- specifically, on the door panel underneath the

shattered glass of the driver’s side window and on the pickup truck against

the Pontiac. Thus, the blood came from an injury to the driver. Only Beatty

lost any blood and showed any sign of injury. Delsignore, on the contrary,

was not bleeding and had no visible injury.     The injury on the left side of

Beatty’s head correlated with the locations of the blood smears on the

driver’s side door and pickup truck. Delsignore’s testimony that she was the

driver is of no moment, because once again, we must view the evidence in




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the light most favorable to the Commonwealth.                  Therefore, Beatty’s

challenge to the sufficiency of the evidence is devoid of merit.4

       In his next argument, Beatty contends that the verdict was against the

weight of the evidence. The law pertaining to weight of the evidence claims

is well-settled. The weight of the evidence is a matter 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. Commonwealth v. Forbes, 867

A.2d 1268, 1273–74 (Pa.Super.2005). A new trial is not warranted because

of “a mere conflict in the testimony” and must have a stronger foundation

than a reassessment of the credibility of witnesses.           Commonwealth v.

Bruce, 916 A.2d 657, 665 (Pa.Super.2007).              Rather, the role of the trial

judge is to determine that notwithstanding all the facts, certain facts are so

clearly of greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice.           Id.   On appeal, “our purview is

extremely limited and is confined to whether the trial court abused its

discretion in finding that the jury verdict did not shock its conscience. Thus,

appellate review of a weight claim consists of a review of the trial court’s

____________________________________________


4
  In support of his challenge to the sufficiency of the evidence, Beatty cites
Commonwealth v. Johnson, 312 A.2d 430 (Pa.Super.1973), in which a
plurality of this Court held that the circumstantial evidence submitted by the
Commonwealth was not sufficient to sustain drunk driving conviction. As a
plurality opinion, Johnson is not binding precedent. See Commonwealth
v. Bethea, 828 A.2d 1066, 1073 (Pa.2003) (reasoning in plurality opinion
does not carry precedential weight).



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exercise of discretion, not a review of the underlying question of whether the

verdict is against the weight of the evidence.” Commonwealth v. Knox,

50 A.3d 732, 738 (Pa.Super.2012). An appellate court may not reverse a

verdict unless it is so contrary to the evidence as to shock one’s sense of

justice. Forbes, 867 A.2d at 1273–74.

     The trial court acted within its discretion in finding that Beatty was the

driver of the Pontiac.    The physical evidence summarized above refutes

Delsignore’s trial testimony that she drove the Pontiac. Moreover, the trial

court, as factfinder, was free to believe Officer Lakin’s testimony that

Delsignore admitted at the accident scene that Beatty was the driver.

     For these reasons, we affirm Beatty’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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