J-S50043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEREMY RYAN DELONG

                            Appellant                 No. 2222 MDA 2015


            Appeal from the Judgment of Sentence October 19, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000820-2015


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 15, 2016

        Appellant, Jeremy Ryan DeLong, appeals from the October 19, 2015

judgment of sentence of three days to six months’ incarceration, imposed by

the trial court after it convicted him of driving under the influence of alcohol

(DUI), driving in excess of the maximum speed limit, and failing to drive on

the right side of the roadway.1 After careful review, we affirm.

        The trial court detailed the relevant facts and procedural posture of

this case as follows.

                    On January 2, 2015, at a little after midnight,
              Officer Jeffrey Futchko, with the Western Berks
              Regional police, was conducting a routine patrol of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a), 3362(a), and 3301(a), respectively.
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          traffic at the intersection of West Penn Avenue and
          Spruce Street in the Borough of Robesonia, in Berks
          County, Pennsylvania. As he was sitting in his patrol
          car, he heard a vehicle approaching his location at a
          very high rate of speed. He then observed a brown
          Mercury Sable pass his zone of influence for his
          speed timing device, which registered 58 miles per
          hour on his RB-3 device. This occurred in a 35 mile
          per hour speed zone.          The officer pulled out,
          activated his headlights and followed this vehicle; he
          activated his emergency lights because he had to
          accelerate up to 60 miles per hour to catch up to the
          vehicle.     He observed the driver make erratic
          movements, straddle the center line and make an
          abrupt swerve to the right before braking. The
          officer started to tap the siren, but initially received
          no response. Eventually the driver responded to the
          siren. The trooper identified Appellant as the person
          who was driving this vehicle. Appellant popped the
          car door open, looked back and then abruptly shut it
          as the officer approached. Upon approaching the
          driver’s side window, Officer Futchko detected an
          overpowering smell of an alcoholic beverage
          emanating from Appellant[’s] breath.         Appellant’s
          eyes were extremely bloodshot and slightly glassy in
          appearance.      Appellant had difficulty giving his
          information and became agitated. He produced a
          driver’s license that should have been returned to
          PennDOT. The officer called for back-up. A bottle of
          Rolling Rock beer was seen lying open on the
          passenger side floor, partially concealed by a red
          cloth. The officer asked if Appellant would mind
          giving him the bottle, but Appellant said he had no
          right to come into his vehicle. Then the officer asked
          if Appellant would take a PBT; Appellant refused any
          tests and became belligerent, hurling profanities at
          the officer. The officer began to open the car door
          and Appellant started yelling and then got out of the
          car. His gait was unsteady as he moved to the rear
          of the vehicle. The officer managed to complete
          three field sobriety tests and determined from these
          tests that Appellant was incapable of safely driving a
          motor vehicle. At this point, the officer attempted to
          place Appellant under arrest for [DUI] and he

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            resisted. Once Appellant was secured and the bottle
            was seized, the officer transported him to St. Joe’s
            [H]ospital for a blood draw. Again, Appellant was
            extremely    belligerent   and   verbally  abusive.
            Appellant was read his implied consent from the DL-
            26 form; he became quite vulgar in his responses to
            the officer. The officer deemed this a refusal to
            submit to chemical testing.

                  [Appellant] was charged … with one count of
            [DUI], [], one count of Maximum Speed Limits, [],
            one count of Duplicate and Substitute Driver’s
            Licenses and Learner’s Permits, [], one count of
            Restriction on Alcoholic Beverages, [], and one count
            of Driving on Right Side of Roadway, []. On October
            6, 2015, after a bench trial, Appellant was found
            guilty of four of the counts, including [DUI], but
            found not guilty of Restriction on Alcoholic
            Beverages. The sentencing hearing was held on
            October 19, 2015; the parties stipulated that
            Appellant was to be found not guilty of count 3,
            Duplicate and Substitute Driver’s Licenses and
            Lerner’s Permits. Appellant was sentenced to serve
            not less than 3 days nor more than six months, with
            credit for 40 days in the Berks County Jail System.
            Appellant filed Post Sentence motions which were
            denied on November 20, 2015. On December 18,
            2015, Appellant filed a Notice of Appeal to the
            Superior Court. [Appellant and the trial court have
            complied with Pennsylvania Rule of Appellate
            Procedure 1925.]

Trial Court Opinion, 2/22/16, at 1-3 (citations to record and statutes

omitted).

     On appeal, Appellant presents four issues for our review.

            1. Whether the evidence presented is insufficient to
               sustain a finding of guilt for the crime of [DUI],
               against [Appellant], because the Commonwealth
               failed to prove beyond a reasonable doubt that
               [Appellant] imbibed a sufficient amount of alcohol


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               prior to driving, the motor vehicle, rendering him
               incapable of safely operating said motor vehicle?

            2. Whether the trial court abused its discretion in
               finding [Appellant] guilty of [DUI] where the
               verdict is contrary to the weight of the evidence
               presented because the Commonwealth failed to
               demonstrate [Appellant] was incapable of safely
               driving, operating, or being in actual physical
               control of the movement of the vehicle?

            3. Whether the evidence presented is insufficient to
               sustain a finding of guilt for the crime of Driving
               Right Side of the Roadway, against [Appellant],
               because the Commonwealth failed to prove
               beyond a reasonable doubt that [Appellant] did
               not drive his vehicle on the right side of the
               roadway?

            4. Whether the trial court abused its discretion in
               finding [Appellant] guilty of Driving Right Side of
               Roadway when the verdict is contrary to the
               weight of the evidence presented because the
               Commonwealth failed to demonstrate [Appellant]
               did not drive his vehicle on the right side of the
               roadway?

Appellant’s Brief at 7-8.

      We first address Appellant’s two sufficiency claims relative to his

convictions of DUI and driving on the right side of the roadway.         “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.” Commonwealth

v. O’Brien, 939 A.2d 912, 913 (Pa. Super. 2007) (citation omitted). “Any

doubts concerning an appellant’s guilt [are] to be resolved by the trier of

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fact unless the evidence was so weak and inconclusive that no probability of

fact could be drawn therefrom.” Commonwealth v. West, 937 A.2d 516,

523 (Pa. Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008). Moreover,

“[t]he Commonwealth may sustain its burden of proving every element of

the crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”    Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super.

2007) (citations omitted).

      Instantly, Appellant was convicted of DUI as follows.

             § 3802. Driving under influence of alcohol or
             controlled substance

             (a) General impairment.--

             (1) 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 individual is rendered incapable of safely
             driving, operating or being in actual physical control
             of the movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1).

      In addition, Appellant was convicted of failing to drive on the right side

of the roadway in violation of 75 Pa.C.S.A. § 3301(a), which provides that

“[u]pon all roadways of sufficient width, a vehicle shall be driven upon the

right half of the roadway.”

      Our review of the notes of testimony from Appellant’s bench trial

reveals the testimony of two witnesses:       Western Berks Regional Police

Officer Jeffrey Futchko for the Commonwealth and Appellant for the defense.


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Consonant with the trial court’s factual findings, Officer Futchko testified to

being on “routine patrol” on January 2, 2015 when he observed Appellant’s

vehicle drive by at a “very high rate of speed.”         N.T., 10/6/15, at 4-5.

Officer Futchko stated Appellant drove “very close to the center line,” then

“straddl[ed] the middle of the center line … until it passed approximately

two, three blocks down … and … again made an abrupt swerve to the right

and began braking at that point.” Id. at 5-6.

      Officer Futchko activated his emergency lights and siren, and when

Appellant stopped his vehicle, Officer Futchko detected “an overpowering

smell of an alcoholic beverage.”      Id. at 7.       Appellant’s eyes appeared

“extremely bloodshot and slightly glassy.”      Id.   There was a Rolling Rock

beer bottle on the passenger-side floor of Appellant’s vehicle.       Id. at 9.

Appellant became belligerent. Id. at 10-11. Officer Futchko administered

three different field sobriety tests to Appellant, after which Officer Futchko

concluded that Appellant was incapable of safe driving, and placed him

under arrest. Id. at 12-13. Appellant continued to act belligerently. Id. at

13-15. After Officer Futchko read Appellant the DL-26 implied consent form,

Appellant refused to consent to a blood test. Id. at 16.

      In his testimony, Appellant testified to drinking “some alcoholic

beverages” on the night before he encountered Officer Futchko, but added

that he was “a little exhausted” because he “didn’t get much sleep.” Id. at

21-22. Appellant specifically denied driving under the influence of alcohol on


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January 2, 2015. Id. at 24. He also denied refusing to take the blood test,

although he conceded he was “very disgruntled” during his encounter with

Officer Futchko. Id. at 23-24.

      Viewing the above evidence in the light most favorable to the

Commonwealth as the verdict winner, we conclude there was sufficient

evidence to establish that Appellant operated his vehicle after consuming

enough alcohol to render him incapable of safe driving, and that he failed to

drive on the right side of the roadway.

      We next address Appellant’s weight claims relative to his DUI and

failing to drive on the right side of the roadway convictions. An allegation

that a “verdict was against the weight of the evidence is addressed to the

discretion of the trial court.” Commonwealth v. Diggs, 949 A.2d 873, 879

(Pa. 2008), cert. denied, Diggs v. Pennsylvania, 556 U.S. 1106 (2009).

Where the trial court has ruled on a weight claim, an appellate court’s role is

not to consider the underlying question of whether the verdict is against the

weight of the evidence. Rather, “[our] review is limited to whether the trial

court palpably abused its discretion in ruling on the weight claim.”

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert. denied,

Tharp v. Pennsylvania, 541 U.S. 1045 (2004).              “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


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fact.”     Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)

(citations omitted), cert. denied, Champney v. Pennsylvania, 542 U.S.

939 (2004).

         Before addressing the merits of Appellant’s weight claim, we first

determine whether he has properly preserved the issue for appellate review.

Pennsylvania Rule of Criminal Procedure 607 provides that a claim that the

verdict was against the weight of the evidence “shall be raised with the trial

judge in a motion for a new trial:       (1) orally, on the record, at any time

before sentencing; (2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this

rule is to make it clear that a challenge to the weight of the evidence must

be raised with the trial judge or it will be waived.”      Commonwealth v.

McCall, 911 A.2d 992, 997 (Pa. Super. 2006). Upon review, we conclude

that Appellant properly preserved his weight of the evidence claims by

raising them in his October 28, 2015 motion for post-sentence relief.       We

thus turn to the merits of the claims.

         It is well established that this Court will not reverse a trial court’s

credibility determination absent an abuse of discretion. In a bench trial, as

in a jury trial, “the trier 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. Zingarelli, 839 A.2d

1064, 1069 (Pa. Super. 2003), appeal denied, 856 A.2d 834 (Pa. 2004).


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Additionally, “the evidence at trial need not preclude every possibility of

innocence, and the fact-finder is free to resolve any doubts regarding a

defendant’s guilt 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.”     Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa.

Super. 2006).

      Instantly, the trial court found the testimony of Officer Futchko, as

related above, to be credible.       Conversely, the trial court did not credit

Appellant’s version of events.      The trial court stated it “found Appellant’s

testimony to be not only not credible, but quite incredible.”            Trial Court

Opinion, 2/22/16 at 6 (emphasis in original).       The trial court reasoned as

follows.

              Appellant claimed to be either overtired, a little sick,
              hung over, or under the weather. He said he did not
              refuse the blood test. Appellant explained that he
              was so vulgar and disrespectful to the officer
              because he was frustrated and “disgruntled.” He
              claimed no one asked him to sign any forms and he
              asserted that he never even made it to the hospital.
              It is clear from the record that, either Appellant did
              not remember these details because he was
              intoxicated, or that he flat out lied to this [trial
              c]ourt. The verdicts do not shock our sense of
              justice.

Id. at 6-7.

      Upon review of the certified record, and recognizing that we are

precluded from reweighing the evidence and substituting our judgment for

that of the fact-finder, we discern no abuse of discretion by the trial court.

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Champney, supra at 408.       The trial court acted within its discretion in

concluding that the verdict was not “so contrary to the evidence as to shock

one’s sense of justice.” Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa.

Super. 2007) (citation omitted), appeal denied, 928 A.2d 1289 (Pa. 2007).

     Based on the foregoing, we find no merit to Appellant’s sufficiency and

weight claims. We thus affirm the October 19, 2015 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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