J-A04016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PATRICK J. DOHENY, JR.

                            Appellant                 No. 28 WDA 2014


            Appeal from the Judgment of Sentence of June 24, 2013
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001734-2012


BEFORE: OLSON, WECHT AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 09, 2015

       Appellant, Patrick Doheny, appeals pro se from the judgment of

sentence entered on June 24, 2013 in the Criminal Division of the Court of

Common Pleas of Allegheny County, as made final by the denial of

post-sentence motions on December 16, 2013. We affirm.1

____________________________________________


1
  On March 13, 2015, Appellant filed an application for relief requesting that
we remand this matter to the trial court for consideration of a petition for
post-conviction relief or, alternatively, an evidentiary hearing. As grounds
for relief, Appellant argues that materials obtained through discovery in two
civil actions filed against the City of Pittsburgh show that witnesses who
testified on behalf of the Commonwealth committed perjury at Appellant’s
trial. See Application for Relief, 3/13/15, at ¶ 16. Appellant’s application
did not attach the discovery materials but, instead, attached a confidentiality
agreement executed by Appellant and a representative of the City of
Pittsburgh. According to the confidentiality agreement, Appellant may use
the materials in litigation so long as he gives 20 days’ notice to the City.

(Footnote Continued Next Page)

*Retired Senior Judge assigned to the Superior Court.
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      The trial court summarized the testimony introduced at trial as follows:

      The evidence adduced at trial demonstrated that Lorenz
      Neureuter was operating his motorcycle on Baum Boulevard in
      the Bloomfield section of the City of Pittsburgh on October 5,
      2011 during the evening hours. He was travelling approximately
      30 miles per hour in an area that had a speed limit of 35 miles
      per hour. As he was heading west in the curb lane on Baum
      Boulevard, a car in the oncoming lane operated by [Appellant]
      began swerving out of control across the double yellow line in
      the center of the road. [Appellant’s] vehicle crossed into the left
      lane and then the curb lane of oncoming traffic and collided with
      Mr. Neureuter’s motorcycle. Mr. Neureuter was thrown from the
      motorcycle. He was wearing a helmet, boots and a jacket. He
      was not able to get up from the street and he could not move his
      left arm and left leg. His motorcycle caught fire. The front fork
      and wheel of the motorcycle became separated from the
      motorcycle. Soon, help arrived and he was taken to UPMC
      Presbyterian Hospital. He sustained a compound fracture of the
      left tibia, a shattered, broken left elbow, a dislocated leg, a
      fractured hip and various other injuries. He remained at UPMC
      Presbyterian hospital for a week. He spent an additional three
                       _______________________
(Footnote Continued)

This Court recognizes a litigant’s right to raise after-discovered evidence
during the direct appeal process. See Commonwealth v. Perrin, 108 A.3d
50 (Pa. Super. 2015); Pa.R.Crim.P. 720, Comment (“[A]fter-discovered
evidence discovered during the direct appeal process must be raised
promptly during the direct appeal process, and should include a request for a
remand to the trial judge....”). We also recognize that,

      To obtain relief based on after-discovered evidence, appellant
      must demonstrate that the evidence: (1) could not have been
      obtained prior to the conclusion of the trial by the exercise of
      reasonable diligence; (2) is not merely corroborative or
      cumulative; (3) will not be used solely to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.

Perrin, supra. Because Appellant has not attached the newly-discovered
materials to his petition, and since he expressly averred that the materials
will be used for the purpose of impeachment, we deny Appellant’s
application for relief.



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     weeks in a nursing home. As of the time of trial, Mr. Neureuter
     had residual effects of his injuries. He has permanent limited
     range of motion in his left elbow, he has a loss of feeling in two
     fingers and he walks with a limp. He is no longer able to run.
     Mr. Neureuter did not consume any alcohol, drugs or prescribed
     medication prior to the incident.

     Officer William Kunz of the City of Pittsburgh Bureau of Police
     testified that he responded to the scene. Officer Kunz has made
     between 200 and 250 arrests for DUI. Upon arriving at the
     scene, he identified [Appellant] as the driver of the car involved
     in the accident.     He approached [Appellant, who] appeared
     confused and disoriented. His eyes were glassy, bloodshot and
     unfocused.      He noted an odor of alcohol emanating from
     [Appellant].     [Appellant] advised Officer Kunz that he was
     driving eastbound on Baum Boulevard and he attempted to pass
     a vehicle in front of him by entering the left passing lane. He
     related to Officer Kunz that as he began to pass the vehicle, he
     felt an impact. He wasn’t sure he hit something or if something
     hit him. Officer Kunz looked into [Appellant’s] car, which was
     parked down the street, and he observed a cardboard container
     for a six-pack of beer and there were three loose bottles of beer
     in the vehicle which were cold. Due to the fact that an accident
     reconstruction team was called to the scene and Officer Kunz
     believed somebody else would be administering them, field
     sobriety tests were not immediately requested.            Accident
     reconstruction indicated that the collision occurred in the west
     bound curb lane of Baum Boulevard and that [Appellant’s] car
     had been sliding sideways across Baum Boulevard prior to the
     accident. This conclusion was consistent with Mr. Neureuter’s
     testimony.

     City of Pittsburgh Police Officer Glen Aldridge responded to the
     scene. Officer Aldridge testified that he had made approximately
     200 prior DUI arrests. Officer Aldridge was qualified as an
     expert in accident reconstruction and an expert in alcohol
     recognition. In addition to investigating the actual accident to
     perform a reconstruction of the accident, Officer Aldridge
     encountered [Appellant]. [Appellant’s] eyes were glassy and
     glazed and he had alcohol on his breath.             He observed
     [Appellant’s] gait as he walked and it appeared wobbly. Based
     on his observations of [Appellant], he believed [Appellant] was
     under the influence of alcohol and that he was not able to safely
     operate a motor vehicle due to the effects of the alcohol. During

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      the course of his interaction with [Appellant], [Appellant]
      indicated to Officer Aldridge that he [Appellant] didn’t know what
      happened to cause the accident.

      City of Pittsburgh Police Officer Kevin Walters testified as an
      expert in accident reconstruction and in alcohol recognition. He
      has made numerous DUI arrests and has observed over 100
      people to determine whether they are under the influence of
      alcohol. He responded to the accident scene and did encounter
      [Appellant]. He observed [Appellant’s] bloodshot and glassy
      eyes. [Appellant] appeared to be slow in answering questions
      posed to him by Officer Walters. [Appellant] swayed as he
      stood. Officer Walters believed that [Appellant] was under the
      influence of alcohol and was not able to safely operate a motor
      vehicle.

      [Appellant’s] blood alcohol reading was .139[% whole blood
      ethanol], at 1:10 a.m., roughly over an hour after the accident.

      [Appellant] presented the testimony of an expert in accident
      reconstruction. The expert testified that there could have been
      other causes of the accident unrelated to [Appellant’s] alcohol
      consumption, namely an underinflated tire.       He could not,
      however, offer any opinion as to whether alcohol played any role
      in the accident in this case.

      Additionally, [Appellant] presented the testimony of his mother.
      She testified that she received a phone call from [Appellant] at
      approximately midnight on [October 6, 2011] indicating that he
      had been in an accident. His mother and father appeared at the
      accident scene at approximately 12:15 a.m. She testified that
      [Appellant] was excited, not slurring his words, and that she did
      not smell an odor of alcohol on him and that he did not exhibit
      any signs of intoxication.

Trial Court Opinion, 7/18/14, at 1-4.

      The procedural history of this case is as follows.       Following the

accident, the Commonwealth charged Appellant with:             one count of

aggravated assault by vehicle while driving under the influence (AA-DUI), 75

Pa.C.S.A. § 3735.1(a); driving under the influence of alcohol resulting in

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bodily injury, 75 Pa.C.S.A. § 3804(b); driving under the influence of

alcohol – blood alcohol .10% to less than .16%, 75 Pa.C.S.A. § 3802(b);

driving under the influence of alcohol – general impairment, 75 Pa.C.S.A.

§ 3802(a)(1); reckless driving, 75 Pa.C.S.A. § 3736(a); and, driving on the

right side of roadway, 75 Pa.C.S.A. § 3301(a).

      Appellant proceeded to a bench trial on January 18, 2013. On January

23, 2013, at the conclusion of trial, the court acquitted Appellant of reckless

driving but found him guilty of all other offenses.       On June 24, 2013,

Appellant received an aggregate sentence of 18 months of intermediate

punishment, followed by four years’ probation.

      On July 17, 2013, the trial court denied the Commonwealth’s request

for restitution beyond a nominal amount and granted Appellant a 60-day

extension of time to file post-sentence motions.         The trial court also

extended the period for deciding post-sentence motions by 30 days. Trial

counsel obtained leave to withdraw on September 9, 2013 and Appellant

filed pro se post-sentence motions on September 16, 2013. The trial court

denied Appellant’s motions by order dated December 16, 2013.             Appellant

filed a pro se notice of appeal on January 2, 2014. Thereafter, pursuant to

an order of court under Pa.R.A.P. 1925(b), Appellant filed a concise

statement of errors complained of on appeal on January 23, 2014. The trial

court filed its opinion on July 18, 2014.

      Appellant’s brief raises the following questions for our review:


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      Was the evidence submitted at trial insufficient as matter of law
      to sustain Appellant’s conviction for [AA-DUI] pursuant to 75
      Pa.C.S.A. § 3735.1?

      Did the [t]rial [c]ourt commit an error of law or abuse of
      discretion by improperly shifting the burden of proof to Appellant
      to disprove that his alleged alcohol consumption was the cause
      of the victim’s injuries, where the Commonwealth failed to
      establish a prima facie case that Appellant’s alleged alcohol
      consumption was the cause of the victim’s injuries?

      Did the [t]rial [c]ourt commit an error of law by convicting
      Appellant of [AA-DUI] pursuant to 75 Pa.C.S.A. § 3735.1, while
      acquitting Appellant of the lesser-included offense of [r]eckless
      [d]riving pursuant to 75 Pa.C.S.A. § 3736(a), thereby
      constituting an inconsistent verdict mandating a judgment of
      acquittal on the [AA-DUI] charge?

      Did the Trial Court commit an error of law or abuse of discretion
      by failing to order a new trial on the basis of the
      Commonwealth’s repeated and bad faith discovery violations,
      including but not limited to inexcusably failing to produce the
      Commonwealth’s toxicologist expert report until sixteen (16)
      days after the Trial Court-ordered deadline and less than a
      month before trial, and failing to disclose, until the middle of
      trial, two critical accident scene measurements that Appellant’s
      then-counsel had repeatedly requested and that Appellant’s
      expert required prior to trial to complete expert analysis and
      reconstruction of the accident?

Appellant’s Brief at 4.

      Appellant’s first issue alleges that the evidence introduced by the

Commonwealth was legally insufficient to support his conviction for AA-DUI.

Specifically, Appellant’s challenge asserts that the Commonwealth failed to

prove that his intoxication caused the victim’s injuries. Appellant’s second

claim contends that, because the Commonwealth failed to establish a prima

facie case that Appellant’s alcohol consumption caused the victim’s injuries,


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the trial court erroneously shifted the burden of proof to Appellant to

disprove that alcohol consumption harmed the victim.        Since these claims

are logically related, we dispose of them in a single discussion.

      Our standard of review on a challenge to the sufficiency of the

evidence is well settled.

      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 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. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)

(emphasis in original).

      The statutory definition of AA-DUI is as follows:

      § 3735.1. Aggravated assault by vehicle while driving
      under the influence

        Offense defined.--Any person who negligently causes
        serious bodily injury to another person as the result of a
        violation of section 3802 (relating to driving under influence
        of alcohol or controlled substance) and who is convicted of

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        violating section 3802 commits a felony of the second
        degree when the violation is the cause of the injury.

75 Pa.C.S.A. § 3735.1.

      Appellant’s sufficiency claim does not dispute the severity of the

victim’s injuries or the sufficiency of the evidence related to his intoxication.

Instead, Appellant alleges that the Commonwealth failed to prove that

alcohol-related impairment caused the victim’s injuries.

      This Court has previously observed that,

      The Crimes Code provides that the negligence required for
      commission of the offense of aggravated assault by vehicle DUI
      is present “when [a person] should be aware of a substantial and
      unjustifiable risk ... [that is] of such a nature and degree that
      the actor's failure to perceive it ... involves a gross deviation
      from the standard of care that a reasonable person would
      observe in that actor's situation.”

Commonwealth v. Miller, 810 A.2d 178, 181 (Pa. Super. 2002) (internal

quotation and punctuation marks in original), appeal denied, 825 A.2d 638

(Pa. 2003); see also 18 Pa.C.S.A. § 302(b)(4). “Criminal responsibility is

properly assessed against one whose conduct was a direct and substantial

factor in producing the [injury] even though other factors combined with

that conduct to achieve the result.” Commonwealth v. Ketterer, 725 A.2d

801, 806 (Pa. Super. 1999) (citation omitted). “As long as the defendant's

conduct started the chain of causation which led to the victim's injuries,

criminal responsibility may properly be found.”         Id.    The role of the

accused’s inebriation in causing a traffic collision is an issue that the

factfinder may resolve. Miller, 810 A.2d at 182.

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       Our review of the certified record in this case convinces us that the

Commonwealth introduced sufficient evidence to establish, beyond a

reasonable doubt, that Appellant committed the offense of AA-DUI. Three

Pittsburgh police officers experienced in conducting alcohol-related traffic

arrests encountered Appellant at the accident scene. Each officer testified

that Appellant emitted an odor of alcoholic beverage, that his speech was

slurred, that his eyes were glassy, bloodshot and unfocused, and that he

was unstable on his feet. One of the officers observed a cardboard six-pack

container in Appellant’s vehicle and three loose beer bottles, which were cold

to the touch. Appellant eventually consented to a blood draw that revealed

a blood alcohol level of .139%.

       The evidence, including Appellant’s own statements, also established

that Appellant encountered a parked car while he was driving in an easterly

direction on Baum Boulevard.2 While attempting to circumvent this obstacle,

Appellant’s car skidded into an oncoming traffic lane where he collided with

the victim’s motorcycle.       Combining the testimony of the officers with the

evidence relating to the reconstruction of the accident, the trial court had

ample evidence from which to conclude that Appellant’s intoxication

impaired his ability perform a routine traffic maneuver, which ultimately

____________________________________________


2
  Although the accident occurred at night, the record shows that the road
surface where the collision occurred is straight and flat. There is no
evidence that Appellant’s vehicle encountered a mechanical problem.



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caused the collision with the victim’s motorcycle. We perceive no error in

the trial court’s causation analysis, as we have repeatedly held that a

factfinder may infer that alcohol diminished a motorist’s judgment and ability

to perceive, process, and adapt to changing road conditions and traffic

hazards.   Cf. Miller, supra, Ketterer, supra, and Commonwealth v.

Johnson, 545 A.2d 349 (Pa. Super. 1988). Since we have determined that

the Commonwealth proved causation beyond a reasonable doubt, we agree

with the trial court that Appellant’s burden-shifting claim is frivolous.

      In his third claim, Appellant asserts that, because the trial court

acquitted him of reckless driving, the verdict rendered against him in this

case was inconsistent and, therefore, his conviction on the charge of AA-DUI

must be discharged. This claim is meritless.

      In rejecting this claim, the trial court aptly distinguished the mens rea

for reckless driving from the mens rea for AA-DUI. See Trial Court Opinion,

7/18/14, at 13-14.     To prove reckless driving, the Commonwealth must

demonstrate beyond a reasonable doubt that Appellant operated his vehicle

with a wanton and willful disregard for the safety of others.       75 Pa.C.S.A.

§ 3736; Commonwealth v. Billick, 830 A.2d 998, 1001-1002 (Pa. Super.

2003). This standard entails a showing of recklessness or, in other words, a

conscious disregard of a substantial and unjustifiable risk. Id.; 18 Pa.C.S.A.

§ 302(b)(3). By contrast, the mens rea for AA-DUI is criminal negligence.

This standard requires proof that the defendant should have been aware of a


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substantial and unjustifiable risk. See Miller, 810 A.2d at 181. Since the

trial court found that Appellant should have been aware of the risks that his

conduct involved, and not that Appellant acted with conscious disregard of a

substantial and unjustifiable risk, the verdicts rendered in this case were not

inconsistent.    Nevertheless, even if the verdicts were inconsistent, they

would not be subject to attack so long as sufficient evidence supported the

conviction. See Commonwealth v. Miller, 35 A.3d 1206, 1208 (Pa. 2012)

(“acquittal cannot be interpreted as a specific finding in relation to some of

the evidence, and that even where two verdicts are logically inconsistent,

such inconsistency alone cannot be grounds for a new trial or for reversal”).

        Appellant’s final claim alleges that he is entitled to a new trial because

of the Commonwealth’s discovery violations.           In support of this claim,

Appellant points out that the Commonwealth failed to produce the report of

its expert toxicologist until December 21, 2012, in violation of an order

directing the parties to exchange expert reports no later than December 5,

2012.    Appellant also notes that the Commonwealth failed to produce two

accident scene measurements until the middle of trial.        These contentions

merit no relief as Appellant has failed to show an abuse of discretion on the

part of the trial court.

        Decisions involving discovery matters are within the sound discretion

of the trial court and will not be overturned absent an abuse of that

discretion. Commonwealth v. Hemingway, 13 A.3d 491, 502 (Pa. Super.


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2011), appeal denied, 24 A.3d 864 (Pa. 2011). An abuse of discretion is not

established unless the defendant can show that he was prejudiced by a

discovery ruling.    See Commonwealth v. Williams, 863 A.2d 505, 516

(Pa. 2004).

      In rejecting Appellant’s claim with respect to the Commonwealth’s

toxicology expert, the trial court explained that, because of the untimely

nature of the Commonwealth’s disclosure, the toxicologist was precluded

from testifying “about the effect of alcohol on the brain and the effects of

alcohol as applied to the facts of this case.” Trial Court Opinion, 7/18/14, at

12-13.      Nevertheless, the trial court permitted the toxicologist to testify

about Appellant’s blood alcohol level since the Commonwealth produced that

information during pretrial discovery. Thus, the trial court determined that

there was no discovery violation as to Appellant’s blood alcohol reading. We

agree with the trial court’s assessment and discern no abuse of discretion in

the court’s treatment of the permitted scope of the toxicologist’s testimony.

      We also conclude that the trial court did not abuse its discretion in

refusing to grant a new trial based upon the untimely production of the

accident scene measurements. At trial, the Commonwealth stipulated that it

did not intend to rely on excessive speed as a causative factor in the

accident.      Thus, while the trial court agreed that the late disclosure

constituted a surprise, the court declined to grant relief because Appellant

did not demonstrate actual harm based upon the prosecutor’s conduct. On


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appeal, Appellant has not articulated how his trial strategy would have been

different if the Commonwealth produced the accident scene measurements

earlier.   Therefore, because Appellant has not demonstrated how he was

harmed by the trial court’s discovery ruling, we decline to grant the

requested relief.

      Judgment of sentence affirmed.        Application for relief denied.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/2015




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