J-S55042-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                Appellee                :
                                        :
          v.                            :
                                        :
WILLIE E. CHISOLM,                      :
                                        :
                Appellant               :     No. 2070 MDA 2016

          Appeal from the Judgment of Sentence November 8, 2016
              in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0002390-2016

BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 10, 2017

      Willie E. Chisolm (Appellant) appeals from the judgment of sentence

entered November 8, 2016, after he was found guilty of, inter alia, driving

under the influence (DUI)- general impairment and careless driving.        We

affirm.

      The trial court summarized the facts as follows.

      [O]n February 1, 2015 [at 1:45 a.m.], officers of the
      Pennsylvania Capitol Police department were on routine patrol
      when they noticed two cars turning left onto Cameron Street (in
      Harrisburg, Pennsylvania). One of the vehicles was a dark-red
      SUV (“SUV”) that was later determined to be driven by
      [Appellant]. The SUV switched lanes abruptly with no turn signal
      and passed the vehicle in front of it. The SUV then moved back
      in front of the other vehicle in a sudden maneuver. The SUV
      then proceeded to accelerate up Cameron Street at a high rate
      of speed. Officer Felsburg testified that [Appellant] did not use
      his turn signals to switch lanes and did not leave a safe distance
      between vehicles when switching back to his original lane.
      [Appellant] was pulled over for careless driving and possible
      suspicion of [DUI].


* Retired Senior Judge assigned to the Superior Court
J-S55042-17



           Officer Felsburg approached the vehicle[, with the driver’s
     window halfway down] and immediately detected an alcoholic
     odor coming from inside the vehicle. The Officer testified that
     [Appellant] was nervous, laughing, and his hands were shaking.
     Officer Felsburg also noticed, mid-thigh, a fresh circular pattern
     of wetness on [Appellant’s] pant leg and a little bit of wetness
     near the belt line of [Appellant’s] shirt. Additionally, Officer
     Felsburg noticed a half bottle of an alcoholic beverage sitting
     behind the driver’s seat. Officer Felsburg offered to get a cab for
     [Appellant] but [Appellant] refused. Instead, [Appellant] started
     making promises to walk home and/or to walk to Burger King or
     for the officers to follow him home. The officers again reiterated
     to [Appellant] about getting a cab ride but [Appellant] refused.
     At this point, Officer Felsburg decided to conduct a field sobriety
     test.

           [Appellant] indicated that he had trouble balancing as part
     of his foot had been “cut off.” Accordingly, Officer Felsburg did
     not conduct the one-legged stand test. Officer Felsburg did,
     however, conduct the horizontal gaze nystagmus (HGN) test and
     the walk and turn test. [Appellant] was unable to smoothly
     follow the officer’s pen during the HGN test and was not able to
     complete the walk and turn test. [Specifically, Appellant had to
     be repeatedly told how many steps to take]. Officer Felsburg
     could continually smell alcohol coming from [Appellant’s] breath.
     At this point, [Appellant] was placed under arrest for DUI and
     taken to booking.

            [Appellant] also testified that he was heading home after
     dropping off some friends and that he had been drinking earlier.
     [Appellant] contends that he was the only one at the light.
     [Appellant’s] license was suspended ([Appellant] had what he
     referred to as a “bread-and-butter operator’s license”) and his
     registration had also lapsed. [Appellant] testified that he has “a
     lot of bottles in the car” and that some were Corona bottles that
     might have had a little bit left in them. [Appellant] also testified
     that it was actually urine in the bottle and that, because he had
     gone through the process before, the [field sobriety] tests that
     were administered were not done properly.

Trial Court Opinion, 1/26/2017 at 2-3 (citations and some footnotes

omitted).


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        Appellant was found guilty of, inter alia, the aforementioned crimes

following a non-jury trial on September 22, 2016.        On November 8, 2016

Appellant was sentenced to three months of intermediate punishment and

three months of probation, plus costs and fines.        Appellant timely filed a

post-sentence motion challenging the weight of the evidence, which the trial

court denied. Appellant then timely filed a notice of appeal.1

        On appeal, although Appellant’s issue is presented as a claim that the

verdict was against the weight of the evidence, it appears that he is

challenging the sufficiency of the evidence to sustain his conviction.        See

Appellant’s Brief at 13 (“Appellant was never shown to be incapable of safe

driving due to being impaired by a controlled substance beyond a reasonable

doubt.”). Challenges to the sufficiency and weight of the evidence are two

distinct claims.

               A claim challenging the sufficiency of the evidence is a
        question of law. Evidence will be deemed sufficient to support
        the verdict when it establishes each material element of the
        crime charged and the commission thereof by the accused,
        beyond a reasonable doubt. Where the evidence offered to
        support the verdict is in contradiction to the physical facts, in
        contravention to human experience and the laws of nature, then
        the evidence is insufficient as a matter of law. When reviewing a
        sufficiency claim the court is required to view the evidence in the
        light most favorable to the verdict winner giving the prosecution
        the benefit of all reasonable inferences to be drawn from the
        evidence.

              A motion for new trial on the grounds that the verdict is
        contrary to the weight of the evidence, concedes that there is

1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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      sufficient evidence to sustain the verdict. Thus, the trial
      court is under no obligation to view the evidence in the light
      most favorable to the verdict winner. An allegation that the
      verdict is against the weight of the evidence is addressed to the
      discretion of the trial court. A new trial should not be granted
      because of a mere conflict in the testimony or because the judge
      on the same facts would have arrived at a different conclusion. …
      [T]he 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.

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations,

quotation marks, and footnote omitted; emphasis added).

      To the extent Appellant attempts to argue a sufficiency claim, we find

it waived for failure to preserve properly this issue in his 1925(b) statement.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). See also Commonwealth

v. Poncala, 915 A.2d 97, 100 (Pa. Super. 2006) (“[A]s a general rule, the

failure to raise an issue in an ordered Rule 1925(b) statement results in the

waiver of that issue on appeal.”).

      In reviewing Appellant’s argument as a properly-preserved weight

claim, we are mindful of the following.

      The decision of whether to grant a new trial on the basis of a
      challenge to the weight of the evidence is necessarily committed
      to the sound discretion of the trial court due to the court’s
      observation of the witnesses and the evidence. A trial court
      should award a new trial on this ground only when the verdict is
      so contrary to the evidence as to shock one’s sense of justice. A
      motion alleging the verdict was against the weight of the
      evidence should not be granted where it merely identifies
      contradictory evidence presented by the Commonwealth and the
      defendant. Our review on appeal is limited to determining


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      whether the trial court abused its discretion in denying the
      motion for a new trial on this ground.

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted). “Not merely an error in judgment, an abuse of discretion occurs

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.” Commonwealth v. Handfield, 34

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29

A.3d 3, 6 (Pa. Super. 2011)).

      Appellant cites the following to support his argument that the verdict is

against the weight of the evidence: (1) Appellant was never shown to be

incapable of safe driving; (2) the field sobriety tests were incomplete; (3) no

valid evidence was presented about the amount of alcohol in Appellant’s

system; and (4) “[t]he police claim they observed [Appellant] fail to use a

turn signal and engage in what they believed to be aggressive driving when

passing another vehicle.        Significantly, no other erratic driving was

observed.” Appellant’s Brief at 13-15 (citation omitted).

      With respect to its verdict, the trial court set forth the following.

             [Appellant’s] failure to use appropriate signals and
      fluctuating speed combined with the above indicators14 such as
      an odor of alcohol and empty beer bottles led Officer Felsburg
      and [the trial court] to conclude that [Appellant] was under the
      influence of alcohol to such a degree that he was “incapable of
      safely driving, operating or being in actual physical control of the
      movement of the vehicle” as required by the statute. As such,
      and based upon Officer Felsburg’s testimony, the verdict is



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      supported by evidence of record and does not in any respect
      shock one’s sense of justice.
           ______
           14
              Th[e trial court] notes that even without the presence of
           the field sobriety tests, based on the totality of the
           circumstances, there was sufficient evidence to support a
           conviction [pursuant to] Section 3802.

Trial Court Opinion, 3/24/2016, at 3.

      We discern no abuse of discretion in the trial court’s conclusion.

Because this was a non-jury trial, the verdict clearly did not shock the trial

court’s sense of justice.    Even if Appellant had properly argued a weight

claim, for the reasons explained by the trial court, such a claim would be

meritless. See Widmer, 744 A.2d at 753 (“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[.]”).

      Because we conclude the trial court did not abuse its discretion,

Appellant is not entitled to a new trial on this basis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2017




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