J-S49045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ZACHARY TAYLOR BAUGHMAN                    :
                                               :
                       Appellant               :   No. 449 MDA 2018

        Appeal from the Judgment of Sentence Entered February 13, 2018
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0001632-2017


BEFORE:      SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                     FILED SEPTEMBER 21, 2018

        Appellant, Zachary Taylor Baughman, appeals from the judgment of

sentence entered in the Court of Common Pleas of Cumberland County, which,

sitting as fact finder in a non-jury trial, found Appellant guilty of summary

Public Drunkenness.1 Sentenced to pay costs of prosecution and a $300 fine,

and to undergo a three-month period of supervised probation, Appellant raises

sufficiency and weight of the evidence claims against the court’s verdict. We

affirm.

        The trial court sets forth an apt recitation of procedural history and

pertinent facts, as follows:

        As the result of an incident in January of 2017, Defendant
        [hereinafter “Appellant”] was charged with possession of a
        controlled substance, an ungraded misdemeanor, and public
        drunkenness, a summary offense. Ultimately, the Commonwealth
____________________________________________


1   18 Pa.C.S. § 5505.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     chose to forgo prosecution of the misdemeanor charge, and a trial
     was held on the summary public drunkenness charge on January
     5, 2018, before the [trial court].

     The evidence adduced at trial may be summarized as follows. On
     Sunday, January 29, 2017, at around 2:00 a.m., a male patron of
     a bar in the Borough of Carlisle, Cumberland County,
     Pennsylvania, was approached inside the bar by Appellant, whom
     he did not know., with an offer to sell him a controlled substance
     known proprietarily as Xanax. Appellant had been heard to make
     the same offer to others “at least three times before that,”
     according to the patron.

     The patron, who had previously served as a bouncer in the bar,
     and whose experience included about 50 encounters with persons
     who were intoxicated to the extent they were a danger to
     themselves and others, responded “Oh, absolutely,” when asked
     whether he had recognized anything in Appellant’s demeanor that
     led him to believe Appellant was under the influence of alcohol or
     a controlled substance. He noted that Appellant was “swaying
     back and forth,” “catching himself on the pool table,” “visibly
     intoxicated,” “not very coordinated,” [ ] “slurring his speech,” and
     displayed an emboldened and uninhibited temperament. The
     patron testified that, had he been on duty, he would have cut
     Appellant off or excluded him from the bar “well before that point.”

     Outside the bar, the patron alerted a Carlisle Borough Police
     officer who was on foot patrol in the vicinity to the presence of
     Appellant, who he said had been offering Xanax for sale in the bar,
     was drunk, and had been ejected from the bar. As the officer
     approached Appellant, a second bar patron relayed the same
     information.

     Appellant’s state of intoxication was “obvious” to the officer upon
     contact. Appellant’s speech was slurred, he was excitable, his
     breath smelled of alcohol, he was swaying, and he “put his arms
     out like wings” in an exaggerated and prolonged gesture of
     submission to a search. Appellant said that he had been ejected
     from the bar, but denied having offered Xanax for sale to patrons.

     By way of professional experience, the officer had encountered
     close to a thousand persons in the past who had been under the
     influence of alcohol or a controlled substance to a degree that


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      rendered them a danger to themselves or others. His testimony
      on this point with regard to Appellant’s condition was as follows:

            Q:     Okay. Based on your training and experience,
            did you come to a conclusion as to whether Mr.
            Baughman was unsafe to himself or others based on
            his level of intoxication?
            A:     Yes.

            Q:    And what was your conclusion?

            A:    I concluded that he was incapable of making
            sound decisions that were going to keep himself safe
            and others as far as offering a Schedule IV Controlled
            Substance to people for sale along with possibly
            ingesting them himself or approaching the wrong
            person about such activities and getting hurt himself
            so that they can procure that pill without paying for it.

      Appellant chose not to accept the officer’s advice to leave the
      vicinity of the bar and he was ultimately arrested and charged with
      public drunkenness and possession of a controlled substance.
      From the judgment of sentence for public drunkenness, he has
      filed an appeal to the Pennsylvania Superior Court.

Trial Court Opinion, filed April 10, 2018, at 1-4. (footnotes omitted).

      Appellant presents the following questions for our consideration:

      I.    WAS   THE   EVIDENCE   PRESENTED    AT  TRIAL
            SUFFICIENT TO SUSTAIN A CONVICTION FOR PUBLIC
            DRUNKENNESS WHEN THE COMMONWEALTH DID NOT
            PROVE THAT MR. BAUGHMAN WAS INTOXICATED TO
            THE DEGREE REQUIRED BY SECTION 5505 SUCH THAT
            HE WAS A DANGER TO HIMSELF OR LIKELY TO HARM
            OR ANNOY ANYONE IN THE VICINITY?

      II.   WAS MR. BAUGHMAN’S CONVICTION AGAINST THE
            WEIGHT OF EVIDENCE AS TO SHOCK ONE’S SENSE OF
            JUSTICE WHEN THE UNCONTRADICTED EVIDENCE
            PROVED HE WAS COOPERATIVE WITH POLICE, ABLE
            TO FOLLOW DIRECTIONS, AND NOT OTHERWISE
            POSING A DANGER TO HIMSELF, OTHERS, OR LIKELY



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            TO HARM OR ANNOY ANYONE IN THE VICINITY DUE
            TO BEING UNDER THE INFLUENCE OF ALCOHOL?

Appellant’s brief, at 5.

      When evaluating a challenge to the sufficiency of the evidence:

      [W]e view the evidence in the light most favorable to the
      Commonwealth together with all reasonable inferences from that
      evidence, and determine whether the trier of fact could have found
      that every element of the crimes charged was established beyond
      a reasonable doubt.

Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)

(citations and quotation marks omitted).

      Further, the Crimes Code defines the summary offense of public

drunkenness as follows:

      A person is guilty of a summary offense if he appears in any public
      place manifestly under the influence of alcohol or a controlled
      substance, as defined in the act of April 14, 1972 (P.L. 233, N.
      64), known as the Controlled Substance, Drug Device and
      Cosmetic Act, except those taken pursuant to the lawful order of
      a practitioner, as defined in the Controlled Substance, Drug,
      Device, and Cosmetic Act, to the degree that he may endanger
      himself or other persons or property, or annoy persons in his
      vicinity.

18 Pa.C.S. § 5505.

      To   convict   a     person   of   public   drunkenness,   therefore,   the

Commonwealth need not present proof of a specific blood alcohol reading.

Rather, the Commonwealth must establish intoxication to such a degree that

it “rendered him a danger to himself or others, or an annoyance to those

around him.”    Commonwealth v. Meyer, 431 A.2d 287, 290 (Pa. Super.

1981).



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J-S49045-18



      Appellant argues the Commonwealth failed to prove he was manifestly

under the influence of alcohol to a degree that he annoyed persons in his

vicinity or was a danger to himself or others. Specifically, he notes it “remains

speculative” as to why Appellant was asked to leave the Gingerbread Man bar,

and he avers that witness accusations of him offering to sell Xanax to others

is irrelevant to the charge of public drunkenness. See Appellant’s brief, at 13.

      In making this argument, Appellant views the record in a light most

favorable to himself in disregard of the standard of review governing

sufficiency of the evidence claims. As discussed in detail by the trial court,

the record reveals that Corporal Brian Shull, the arresting officer, testified he

had encountered nearly one thousand intoxicated persons in his professional

experience, N.T. 1/5/18, at 22-23, and he discerned that Appellant exhibited

classic signs of intoxication and displayed strange, erratic behavior. N.T. at

19-20.

      Corporal Shull also related he had received complaints from two patrons

that Appellant tried to sell them prescription pills while in the bar. N.T. at 18-

19. One of the patrons appeared at trial and testified to this effect, stating

Appellant, while visibly drunk and unsteady on his feet, had approached him

and three other patrons in an “emboldened” and “uninhibited” way to sell them

Xanax. N.T. at 9, 12-13.

      Read in a light most favorable to the Commonwealth as verdict winner,

the evidence proved Appellant was intoxicated to a degree that rendered him

an annoyance to those around him. The complaining patron testified that his

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J-S49045-18



experience as a bouncer at the very establishment in question caused him to

track Appellant’s activity while inside, and he believed intoxication played a

significant role in Appellant’s annoying behavior. N.T. at 11. Indeed, both he

and another patron were annoyed enough to complain about Appellant to the

police, who were present at the scene for an unrelated reason. Based on both

the patron’s and Corporal Shull’s respective testimonies, therefore, we

conclude the evidence presented was sufficient to support Appellant's

conviction for public drunkenness.      See Walker, 836 A.2d at 1000 n.3;

Meyer, 431 A.2d at 290.

      In the alternative, Appellant argues his conviction goes 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 fact finder,

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,

1272–1273 (Pa.Super. 2005).       The grant of 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.

      An appellate court's purview:

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      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 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) (internal

citations omitted). “[T]he trial court's denial of a motion for a new trial based

on a weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

      Sitting as finder of fact, the trial court was free to believe all, part, or

none of the evidence against Appellant. The trial court weighed the evidence

and concluded that Appellant was guilty of public drunkenness. As explained,

we agree with the trial court's conclusion that there was sufficient evidence

presented at trial to sustain the conviction of public drunkenness.

      However, Appellant points to where Corporal Shull recounted how he

allowed Appellant to leave the area after the initial police-citizen encounter

between them because Appellant was cooperative and was not found to

possess contraband on his person. N.T. at 20-21. This aspect of the corporal’s

testimony created a conflict in the testimony warranting the grant of a new

trial, Appellant maintains, as it suggests the court failed to appreciate

evidence contradicting other testimony describing the degree of Appellant’s

intoxication.

      Appellant has engaged, again, in selecting only those portions of the

evidentiary record that suit his interest to the exclusion of the remainder of


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J-S49045-18



the record.    At trial, Corporal Shull did, indeed, testify that under

circumstances evolving at the time he initially encountered Appellant, he was

forced to release Appellant because there were more pressing concerns

elsewhere where his fellow officers needed assistance.      N.T. at 21.   Those

matters resolved more quickly than anticipated, Corporal Shull explained, so

when he noticed Appellant had remained at the scene, he resumed his

encounter with Appellant and placed him under arrest based on his own

observations and the patrons’ collective complaints. Id.

     Critically, Corporal Shull consistently testified Appellant appeared

intoxicated, and despite Appellant’s argument to the contrary, the court was

free to find credible the corporal’s explanation that he initially released

Appellant in a moment of exigency. In that regard, we decline Appellant’s

invitation to assume the role of fact finder and reweigh the evidence. Based

upon the evidence presented, the trial court's denial of Appellant’s weight of

the evidence motion was not an abuse of discretion.        Therefore, we deem

Appellant's second claim meritless.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/21/2018

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