J-S34036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUCIEN JOSEPH GENTILE

                            Appellant                 No. 1489 MDA 2014


        Appeal from the Judgment of Sentence Entered March 11, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0003101-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 21, 2015

       Appellant, Lucien Joseph Gentile, appeals from the trial court’s March

11, 2014 judgment of sentence imposing six months of probation for DUI,

general impairment.1 We affirm.

       The trial court recited the relevant facts in its Pa.R.A.P. 1925(a)

opinion:

             The testimony revealed the following course of events
       during the late afternoon hours of January 31, 2013: Roger
       White testified that he, his wife, and daughter were traveling on
       Routes 11/15 and 322, and noticed the driver of a white Audi
       driving very erratically. The vehicle forced Mr. White to apply his
       brakes suddenly, as the Audi pulled directly in front of him. Mr.
       White’s daughter called 911, and Mr. White described the car,
       and gave the operator the license plate number.

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1
    75 Pa.C.S.A. § 3802(a)(1).
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             A second witness, Danielle Shoppe, testified that she and a
       friend were driving back from work and noticed a white Audi
       driving ‘all over the road’ and ‘swerving everywhere.’           Ms.
       Shoppe placed a call to 911, and decided to continue to follow
       the Audi, as the car was ‘swerving off the road onto people’s
       yards.’ She opined the ‘he was either going to kill himself or
       somebody else.’ The Audi driver pulled into a neighborhood, got
       out of his car, and started walking to Ms. Shoppe’s vehicle. Ms.
       Shoppe testified that she could tell he was drunk. Ms. Shoppe
       was still on the phone with the 911 dispatcher, who told her to
       stay in the car. The driver of the Audi got back into his car,
       drove to his house, and parked his car in the garage. Ms.
       Shoppe followed and waited about seven to eight minutes for the
       police to arrive, to make sure they had the right house. Ms.
       Shoppe identified [Appellant] at trial as the driver of the Audi.

              Pennsylvania State Police Trooper Brian Wolfe testified that
       on January 31st of 2013, he received reports of traffic violations
       from multiple callers regarding the white Audi, Mr. White and Ms.
       Shoppe being two of the callers. Trooper Wolfe testified that the
       information received from PennDOT after the license plate
       number was given to dispatch, revealed the Audi was registered
       to [Appellant]. When Trooper Wolfe arrived at [Appellant’s]
       residence, he initially spoke with [Appellant’s] wife, Marcy [sic]
       Gentile.[2] [Appellant] then came to the front door, and the
       officer asked to speak with him in the garage. Upon speaking
       with [Appellant], Trooper Wolfe detected a strong odor or alcohol
       coming from his breath. He also observed [Appellant’s] slurred
       speech, bloodshot, glassy eyes, and noted that [Appellant] had
       difficulty standing and was staggering. Trooper Wolfe asked
       [Appellant] to perform three different field sobriety tests and,
       based on such tests, the trooper determined that [Appellant]
       was ‘extremely impaired.’ He was placed under arrest and
       transported to Osteopathic Hospital for a legal blood test, which
       later revealed a BAC of .238. On the return trip from the
       hospital, Trooper Wolfe read [Appellant] his Miranda[3] rights,
       and asked him a few questions. [Appellant] told him that he was

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2
    According to the transcript, Appellant’s wife is named Marsha Gentile.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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      an alcoholic, and had consumed a pint of Southern Comfort from
      Williamsport to Harrisburg while in his vehicle.

             Contrary to Trooper Wolfe’s testimony, [Appellant] averred
      that during his trip home from work, from Williamsport to
      Harrisburg, on the afternoon in question, he had stopped
      drinking for two days and was having withdrawal symptoms
      (shakes and sweats). While traveling in his car at that time,
      [Appellant] testified he was reading emails from his phone and
      driving with his knee holding the steering wheel.        He also
      testified that as soon as he got home, he retrieved a hidden
      stash of Southern Comfort and drank it as quickly as he could
      because he was shaking so badly. He claims to have finished
      about three quarters of the pint-sized bottle. When asked why
      he told the officer he had consumed the Southern Comfort while
      driving, [Appellant] said that he didn’t recall much, because his
      BAC was obviously high. [Appellant’s] wife, Marsha Gentile,
      testified that she observed [Appellant] drinking from the
      Southern Comfort bottle.

Trial Court Opinion, 11/3/14, at 2-4 (record citation omitted).

      Appellant proceeded to a February 27, 2014 bench trial, at the

conclusion of which the trial court found him guilty of DUI—general

impairment, disregarding a traffic lane (75 Pa.C.S.A. § 3309) and careless

driving (75 Pa.C.S.A. § 3714). The trial court found Appellant not guilty of

DUI—highest rate of alcohol (75 Pa.C.S.A. § 3802(c)).            The trial court

imposed sentence on March 11, 2014.           The trial court denied Appellant’s

post-sentence   motions,   and   this    timely   appeal   followed.   Appellant

challenges the sufficiency and weight of the evidence.

      We review Appellant’s sufficiency of the evidence challenge according

to the following:

            Our well-settled standard of review when evaluating a
      challenge to the sufficiency of the evidence mandates that we


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     assess the evidence and all reasonable inferences drawn
     therefrom in the light most favorable to the verdict-winner. We
     must determine whether there is sufficient evidence to enable
     the fact finder to have found 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 that of 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. Moreover, in applying the above test, the entire
     record must be evaluated and all evidence actually received
     must be considered. Finally, 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. Evans, 901 A.2d 528, 532-33 (Pa. Super. 2006)

(internal citations and quotation marks omitted), appeal denied, 909 A.2d

303 (Pa. 2006).

     The Motor Vehicle Code defines DUI—general impairment, as follows:

            (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).

     Appellant argues the Commonwealth failed to produce sufficient

evidence in support of his DUI conviction because the evidence of record is

equally   consistent   with   two   competing   propositions.   “The   law   in

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Pennsylvania is well settled that ‘when a party on whom the burden of proof

rests, in either a civil or criminal case, offers evidence consistent with two

opposing propositions, he proves neither.’” Commonwealth v. Crompton,

682 A.2d 286, 289 (Pa. Super. 1996) (quoting Commonwealth v. Woong

Knee New, 47 A.2d 450, 468 (Pa. 1946)). In Crompton, a police officer

testifying at a suppression hearing gave two mutually exclusive accounts of

his conduct in executing a search warrant.     Id. at 288-90.   Each account

was consistent with an exception to the knock and announce rule. Id. As a

result, the Supreme Court concluded the Commonwealth failed to carry its

burden of proving either exception to the knock and announce rule. Id.

      Appellant believes the evidence in this case is consistent with two

opposing propositions—that he consumed alcohol while driving or that he

consumed nearly an entire bottle of Southern Comfort after he arrived at his

home but before Trooper Wolfe arrived. Appellant’s Brief at 14. Appellant

misconstrues the holding of Crompton and similar cases. This is not a case

in which one witness offered two inconsistent accounts of his conduct. Nor

is this a case, such as Woong Knee New, involving a large body of

evidence permitting equal inferences of either the defendant’s guilt or the

guilt of an unknown third party.   Woong Knee New, 47 A.2d at 467-69.

Rather, the Commonwealth produced overwhelming evidence of Appellant’s

guilt, including Appellant’s admission to Trooper Wolfe.     The trial court,

sitting as fact finder, credited the prosecution’s witnesses and discredited


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Appellant’s story.     Under Appellant’s theory of this case, Crompton could

apply to almost any case where the fact finder must assess the credibility of

witnesses whose testimony conflicts.           Here, Appellant asks us to disregard

our obligation to defer to the fact finder’s credibility determinations and draw

inferences in favor of the Commonwealth as verdict winner.                 Several

eyewitnesses testified to Appellant’s erratic driving. One eyewitness testified

that Trooper Wolfe arrived at Appellant’s home within eight minutes of

Appellant’s arrival.        Trooper    Wolfe testified that Appellant admitted

consuming alcohol during his drive, that Appellant was obviously intoxicated,

and that he failed field sobriety tests. This evidence is more than sufficient

to establish Appellant’s violation of § 3802(a) beyond a reasonable doubt.

Appellant’s first argument fails.

       Next, Appellant challenges the weight of the evidence in support of his

conviction.4

              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. 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 against
       the weight of the evidence. 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

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4
   Appellant preserved this issue in a timely post-sentence motion in accord
with Pa.R.Crim.P. 607.



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      evidence and that a new trial should be granted in the interest of
      justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). A conflict in

testimony is not a sufficient basis for a new trial.     Commonwealth v.

Rivera, 983 A.2d 1211, 1225 (Pa. 2009), cert. denied, 560 U.S. 909

(2010).

      Appellant relies on his own testimony and that of his wife to argue that

he consumed alcohol only after he stopped driving.      In essence, Appellant

asks us to set aside the trial court’s credibility determinations and reweigh

the evidence. We decline to do so, as our standard of review forbids such

action.   We summarized the evidence in support of Appellant’s conviction

above. Based on that evidence, we discern no abuse of discretion in the trial

court’s denial of Appellant’s motion for a new trial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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