J-S52043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDDIE ORLANDO MURRAY                       :
                                               :
                       Appellant               :   No. 575 EDA 2019

      Appeal from the Judgment of Sentence Entered September 6, 2018
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0002031-2017


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED DECEMBER 30, 2019

       Eddie Orlando Murray appeals from the judgment of sentence entered

on September 6, 2018, after the trial court found him guilty of driving under

the influence of alcohol or controlled substance – high rate of alcohol (“DUI”).1

Murray contends that (1) his arrest was not supported by probable cause, (2)

the trial court erred by admitting the results of his breath test, (3) the

evidence was insufficient to support the trial court’s guilty verdict, and (4)

the verdict was contrary to the weight of the evidence. We affirm.

       The trial court summarized the factual background of the instant case

as follows:



____________________________________________


1 75 Pa.C.S.A. § 3802(b). Murray was found not guilty of DUI – general
impairment, 75 Pa.C.S.A. § 3802(a).
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             The relevant facts are as follows. On April 30, 2017,
          [Murray] was pulled over by Corporal Christopher
          Winesburg[2] while operating his vehicle because a strap
          securing the contents of his pick-up truck was hitting the
          ground and striking the vehicle in and around the wheel
          well. Corporal Winesburg testified that, after the vehicle
          pulled over, he approached and spoke with [Murray]. At this
          point, Corporal Winesburg detected an odor of alcohol on
          [Murray’s] breath. Corporal Winesburg further testified that,
          along with the smell, he observed [Murray’s] eyes to be red
          and bloodshot, which prompted him to ask [Murray]
          whether he had consumed any alcohol that evening. In
          response, [Murray] admitted to having consumed alcohol
          previously that night.

             Corporal Winesburg proceeded to conduct the Standard
          Field Sobriety Tests [SFSTs] on [Murray]. While [Murray]
          claims that he presented no indications of impairment while
          operating his vehicle and performed well on the [SFSTs],
          Corporal Winesburg[‘s] testimony indicates otherwise. After
          [Murray] performed the [SFSTs], Corporal Winesburg
          placed [Murray] under arrest.

              On November 27, 2017, [Murray] filed an Omnibus Pre-
          Trial Motion in which he sought to suppress certain evidence
          allegedly obtained without probable cause. Specifically,
          [Murray] argued that the arresting officer did not have
          probable cause to believe [Murray] was driving under the
          influence of alcohol. [Murray] further asserted that the
          arresting officer should not have administered a portable
          breath test or subsequently arrested [Murray] without said
          probable cause.

Tr. Ct. Pa.R.A.P. 1925(a) Op. at 2-3. (citations omitted).

       The trial court conducted a hearing regarding Murray’s suppression

motion on December 21, 2017. At the hearing, Corporal Winesburg testified


____________________________________________


2 Corporal Winesburg testified regarding his extensive DUI training and
experience, including completing over 500 DUI arrests himself. N.T., 12/21/17
at 7.

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regarding the SFSTs he observed Murray performing. The trial court was aided

by viewing Corporal Winesburg’s dashboard camera recording. Corporal

Winesburg testified that Murray had difficulty with the horizontal gaze

nystagmus (“HGN”) test, but conceded that he had not administered the test

exactly as required by his training. N.T., 12/21/17 at 11-12; 23-33. Before

asking him to perform the walk-and-turn test, Corporal Winesburg asked

Murray if he had any physical conditions that would impair his performance.

Id. at 12-13. Murray responded that the stomach surgery he had undergone

several years prior might negatively affect his performance. Id. Thereafter,

Murray attempted the walk-and-turn test and Corporal Winesburg noted that

five out of eight clues weighed in favor of the conclusion that Murray was

intoxicated. Id. Murray also failed to perform the one-leg stand test but

attributed his failure to his prior stomach surgery. Id.

      Corporal Winesburg then attempted to administer a preliminary breath

test (“PBT”) to Murray. Id. at 13-16. Although at first unsuccessful, Murray

eventually succeeded in blowing strongly enough to register a result that

indicated the presence of alcohol. Id. At this point, Corporal Winesburg placed

Murray under arrest. Following the suppression hearing, the trial court denied

Murray’s motion, concluding, based on the totality of the circumstances, that

Corporal Winesburg had probable cause to arrest Murray for DUI.

      A bench trial ensued on April 2, 2018. At trial, Corporal Winesburg

explained that he had observed Murray from the inception of the vehicle stop

around 1:50 a.m. until after administering a breath test to measure Murray’s

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blood alcohol content (“BAC”) using the Datamaster DMT device (“BAC test”)

at 2:42 a.m. N.T. 4/21/18, at 27-28. Corporal Winesburg reported that, during

this period, Murray did not burp, vomit, or consume any alcohol, other

beverage, or food. Id. Corporal Winesburg admitted that he noted on his DL-

26 form that observation of Murray began at 2:20 a.m. Id. at 17. However,

he testified that this written note was incorrect because his observation

actually began at the inception of the car stop at 1:50 a.m. Id. He attributed

the written error to a malfunctioning records management system. Id. at 21-

23. In fact, Corporal Winesburg recounted that he began transporting Murray

at 2:16 a.m. and arrived at the barracks by 2:29 a.m. Id. at 20-21. Further,

Corporal Winesburg reported that he was able to observe Murray while he was

transporting him, because Murray was seated in the front seat of the police

vehicle next to him. Id. at 27. After administering the BAC test at the police

barracks, Corporal Winesburg recorded Murray’s BAC level as .158 in the first

sample collected at 2:45 a.m., and .164 in the second sample collected at

2:46 a.m. Id. at 12-13.

        The trial court found Murray guilty of DUI-High rate of alcohol and

sentenced him, on September 6, 2018, to, inter alia, six months’ of

intermediate punishment.3 Murray filed this timely appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued a responsive Pa.R.A.P.

1925(a) opinion.

____________________________________________


3   At the time of trial, Murray was a commercial truck driver.

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     Murray presents the following issues for our review:

     1. Probable Cause. The Commonwealth failed to present
        evidence of probable cause to arrest Mr. Murray where there
        was no bad driving, the trooper alleged an odor of alcohol and
        bloodshot eyes, and the trooper conceded he skipped steps on
        the HGN test. Probable cause requires the Commonwealth to
        show sufficient facts and circumstances to warrant a prudent
        person to believe that the driver had been operating a vehicle
        under the influence of alcohol?

     2. Admissibility of Evidence. The trial court erred in allowing
        the breath test as Mr. Murray was not observed for the required
        20 minutes under 67 Pa. Code § 77.24(a). The trooper testified
        observation began at 2:20 am and the breath test was
        completed at 2:42 am. As the trooper did not observe Mr.
        Murray for the required 20 minutes, the breath test results are
        inadmissible. Did the trial court err in allowing the results of
        the breath test?

     3. Sufficiency of the Evidence. The Commonwealth erred in
        finding sufficient evidence for DUI-High Rate. To convict under
        75 Pa.C.S.A. § 3802(b), the Commonwealth must prove an
        individual’s blood or breath is at least 0.10% but less than
        0.16% within two hours after the individual has driven,
        operated, or been in actual physical control of the movement
        of the vehicle. Was there sufficient evidence for one count of
        DUI-High Rate?

     4. Weight of the Evidence. The trooper’s testimony concerning
        the 20-minute observation period was inconsistent and
        unreliable. Was the conviction for DUI-High Rate against the
        weight of the evidence?

Murray’s Br. at 9-10 (suggested answers omitted).

     In his first issue, Murray argues that the trial court erred by denying his

suppression motion because he contends that Corporal Winesburg did not

have probable cause to arrest him for DUI. He emphasizes that he did not

exhibit any erratic driving or slurred speech on the night in question. He



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further asserts that the odor of alcohol Corporal Winesburg noticed could have

been from his alcohol consumption hours earlier and the Pennsylvania Vehicle

Code does not prohibit the consumption of any amount of alcohol before

driving. In addition, Murray suggests that his “bloodshot eyes” may have been

due to his long hours working as a truck driver.

      Murray also points to errors in Corporal Winesburg’s administration of

the SFSTs. He argues that Corporal Winesburg admitted to these errors in his

testimony and therefore should have refrained from relying on those test

results that tended to indicate that Murray was intoxicated. Moreover, Murray

avers that Corporal Winesburg did not adequately consider that his

performance on the SFSTs was negatively impacted by his prior stomach

surgery. Further, even though Murray concedes that the results of his

preliminary breath test (PBT) performed at the scene confirmed the presence

of alcohol, he argues that this merely indicated consumption of alcohol at

some point on the night in question and not intoxication at the time he was

driving.

      Our standard of review of the denial of a motion to suppress is “limited

to determining whether the suppression court’s factual findings are supported

by the record and whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015)

(citation omitted). Moreover, “[i]t is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight to

be given to their testimony. The suppression court is free to believe all, some

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or   none   of   the   evidence   presented   at   the   suppression   hearing.”

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003) (citation

omitted).

      “To be constitutionally valid, a warrantless arrest must, of course, be

supported by probable cause.” Commonwealth v. Evans, 685 A.2d 535, 537

(Pa. 1996) (opinion in support of affirmance) (citation omitted). In the case

of a DUI, a police officer has probable cause to make an arrest “where the

officer has knowledge of sufficient facts and circumstances to warrant a

prudent person to believe that the driver has been driving under the influence

of alcohol or a controlled substance.” Commonwealth v. Hilliar, 943 A.2d

984, 994 (Pa.Super. 2008) (citation omitted). An officer must determine

whether probable cause exists to justify a warrantless arrest using the “totality

of the circumstances.” Commonwealth v. Williams, 941 A.2d 14, 27

(Pa.Super. 2008) (en banc) (citation omitted). Thus, “a police officer may

utilize his experience and personal observations to render an opinion as to

whether a person is intoxicated.” Id. (citation omitted).

      “[P]robable cause does not involve certainties, but rather the ‘factual

and practical considerations of everyday life on which reasonable and prudent

[persons] act.’” Id. (citation omitted). Of particular relevance to the case sub

judice, we note that while SFSTs can be helpful for a police officer when

determining whether probable cause exists for a DUI arrest, “reasonable

grounds to arrest [for suspicion of DUI] does not require the failure of field

sobriety tests.” Commonwealth v. Slonaker, 795 A.2d 397, 402 (Pa. Super.

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2002) (citation and footnote omitted). Moreover, “[p]robable cause exists

when criminality is one reasonable inference; it need not be the only, or even

the most likely, inference.” Commonwealth v. Quiles, 619 A.2d 291, 298

(Pa.Super. 1993) (en banc) (citations omitted).

      Also assisting officers in the determination of whether an individual

should be placed under arrest for DUI is the PBT:

      A police officer, having reasonable suspicion to believe a person is
      driving or in actual physical control of the movement of a motor
      vehicle while under the influence of alcohol, may require that
      person prior to arrest to submit to a [PBT] on a device approved
      by the Department of Health for this purpose. The sole purpose of
      this [PBT] is to assist the officer in determining whether or not the
      person should be placed under arrest.

75 Pa.C.S.A. § 1547(k).

      In this case, the totality of the circumstances supports Corporal

Winesburg’s determination that probable cause supported Murray’s arrest for

DUI. Corporal Winesburg, who has considerable training and experience

regarding DUI arrests, observed Murray’s red and bloodshot eyes, the odor of

alcohol emanating from Murray, and Murray’s own admission of alcohol

consumption that evening. The SFSTs Corporal Winesburg administered to

Murray also indicated that he was likely intoxicated. Finally, Corporal

Winesburg also relied upon the PBT results, which indicated that alcohol was

present in Murray’s body. Hence, we conclude that Corporal Winesburg was

aware of sufficient facts and circumstances to warrant a prudent person to




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believe that Murray had been driving under the influence of alcohol. See

Hilliar, 943 A.2d at 994.

      Murray’s argument regarding admitted deficiencies in the administration

of the SFSTs is of no moment. The fact that Corporal Winesburg conceded that

he did not properly administer the HGN test does not diminish the significance

of Murray’s poor performance on other SFSTs. Moreover, even if deficiencies

in how the SFSTs were administered invalidated any portion of the relevant

results, probable cause to arrest for DUI does not require evidence that Murray

failed SFSTs. See Slonaker, 795 A.2d at 402. Further, Murray’s contention

that Corporal Winesburg should not have considered his red and blood shot

eyes and the odor of alcohol emanating from him as indicative of intoxication

is also unavailing. It is well settled that probable cause can be established

even when criminality is a reasonable inference from the relevant evidence

but not the only possible inference that a reasonable person could make. See

Quiles, 619 A.2d at 298.

      In the instant case, we hold that the trial court had ample evidence upon

which to find that Corporal Winesburg had probable cause to arrest Murray for

DUI. See Hilliar, 943 A.2d at 994; Elmobdy, 823 A.2d at 183. Accordingly,

we conclude that the trial court did not err by declining to grant Murray’s

motion to suppress. See Jones, 121 A.3d at 526. Thus, Murray’s first issue

warrants no relief.

      Turning to his second issue, Murray contends that the trial court erred

by admitting the results of his BAC test. Specifically, Murray asserts that

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Corporal Winesburg did not observe him for the requisite 20 minutes before

administering the test, as required pursuant to 67 Pa.Code § 77.24(a). In

support of this argument, Murray points to Corporal Winesburg’s written

report, which states that the Corporal’s observation of Murray began at 2:20

a.m. Murray points out that Corporal Winesburg admitted that he transported

Murray to police barracks between 2:16 a.m. and 2:29 a.m. Therefore, Murray

argues, Corporal Winesburg could not have been observing him from 2:16

a.m. to 2:29 a.m., to ensure he did not burp, or vomit, or ingest anything.

Thus, according to Murray, because the BAC test was administered at 2:42

a.m., “simple math” reveals that Corporal Winesburg could not have properly

engaged in the 20-minute observation period required.

      As a precursory matter, we note that failure to comply with the 20-

minute observation rule precludes the admission of BAC test results.

Commonwealth v. Barlow, 776 A.2d 273, 275 (Pa.Super. 2001) (“The

[Vehicle] Code’s requirements go to the trustworthiness of the evidence. If

that issue is raised, failure to comply does not permit the results to be

admitted as substantive evidence with lessened reliability[:] it precludes

admission”). In the instant case, although Murray raised the issue at trial, he

did not specifically include the issue of the admission of his BAC test results

in his omnibus pre-trial suppression motion. Thus, the Commonwealth

contends that Murray waived this issue pursuant to Pa.R.Crim.P. 581 (A)-(B)

(formerly Rule 323; renumbered as Rule 581 effective 2001). We agree. Rule

581 provides that a defendant may make a motion seeking “to suppress any

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evidence alleged to have been obtained in violation of the defendant’s rights”

but “[u]nless the opportunity did not previously exist, or the interests of

justice otherwise require, such motion shall . . . be contained in the omnibus

pretrial motions set forth in Rule 578. If timely motion is not made hereunder,

the issue of suppression of such evidence shall be deemed waived.”

Pa.R.Crim.P. 581.

      In any event, the trial court nevertheless addressed Murray’s contention

regarding the 20-minute observation period set forth in the Vehicle Code both

at trial and in the court’s Rule 1925(a) opinion. The court specifically found

Corporal Winesburg’s testimony credible regarding the contention that he had

sufficiently observed Murray for the requisite period prior to administering the

BAC test. The certified record supports this finding.

      “A trial court has broad discretion to determine whether evidence is

admissible and a trial court's ruling on an evidentiary issue will be reversed

only if the court abused its discretion.” Commonwealth v. Huggins, 68 A.3d

962, 966 (Pa.Super. 2013) (citing Commonwealth v. Cook, 676 A.2d 639,

647 (Pa. 1996)). We do not disturb a ruling admitting evidence “unless that

ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support to be clearly erroneous.” Id. (quoting

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010)). As our

scope of review over an evidentiary question is plenary, we may review the

ruling within the context of the entire record. Id.




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      Pursuant to Section 77.24(a) of Title 67 of the Pennsylvania Code, a

police officer or a certified breath test operator must observe a DUI suspect

for a period of at least 20 consecutive minutes immediately prior to the

administration of the breath test. The provision states:

         (a) Observation. The person to be tested with breath test
         equipment shall be kept under observation by a police
         officer or certified breath test operator for at least 20
         consecutive minutes immediately prior to administration of
         the first alcohol breath test given to the person, during
         which time the person may not have ingested alcoholic
         beverages or other fluids, regurgitated, vomited, eaten or
         smoked. Custody of the person may be transferred to
         another officer or certified breath test operator during the
         20 consecutive minutes or longer period as long as the
         person to be tested is under observation for at least 20
         consecutive minutes prior to initial administration of the
         alcohol breath test.

67 Pa.Code § 77.24(a).

       Further, this Court has held “the Commonwealth must prove, by a

preponderance of the evidence, that an individual subjected to a breathalyzer

test did not ingest anything for the 20 minutes prior to administration of the

test, but that ‘observation,’ as used in 67 Pa. Code § 77.24(a), did not mean

‘eyes on his mouth 100% of the time.’” Commonwealth v. Snell, 811 A.2d

581, 586 (Pa. Super. 2002) (citing Barlow, 776 A.2d at 275).

      Here, we conclude that the trial court did not abuse its discretion by

admitting Murray’s BAC result. Murray emphasizes, and the trial court

acknowledges, that Corporal Winesburg made a written notation that his

“observation” of Murray commenced at 2:20 a.m. However, at trial, Corporal


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Winesburg explained that this notation was incorrect because his observation

actually commenced from the time he stopped Murray’s car at approximately

1:50 a.m. until he administered the BAC test at 2:42 a.m. Also, Corporal

Winesburg asserted that he was able to ensure that Murray did not burp,

vomit, or ingest while he drove him to the police barracks because Murray sat

right next to him in the car. Indeed, it was not necessary for Corporal

Winesburg to keep his eyes on Murray’s mouth the entire trip to satisfy his

20-minute observation requirement. See Snell, 811 A.2d at 586. Hence, the

trial court had ample evidence upon which to find that Corporal Winesburg

had observed Murray for the requisite 20 minutes required under 67 Pa. Code

§ 77.24(a), prior to administering Murray’s BAC test. Thus, we conclude that

the trial court did not abuse its discretion in admitting Murray’s BAC result.

See Minich, 4 A.3d at 1068. Murray’s second issue also lacks merit.

      Turning to his next issue, Murray argues that insufficient evidence

supported his conviction for DUI-High rate of alcohol. Specifically, Murray does

not assert that he was not driving his car at the time in question, but instead

solely argues that no evidence properly established that he was intoxicated at

the time in question. He maintains that because his BAC result was improperly

admitted, the Commonwealth failed to prove that he was intoxicated as

required for conviction pursuant to 75 Pa.C.S.A. § 3802(b). We find Murray’s

argument devoid of merit.

      When reviewing a challenge to the sufficiency of the evidence, our

standard of review is de novo, while “our scope of review is limited to

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considering the evidence of record, and all reasonable inferences arising

therefrom, viewed in the light most favorable to the Commonwealth as the

verdict winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa.

2014). “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.” Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000).

      In the instant case, the pertinent statute provides that “[a]n 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 alcohol

concentration in the individual’s blood or breath is at least 0.10% but less than

0.16% within two hours after the individual has driven, operated or been in

actual physical control of the movement of the vehicle.” 75 Pa.C.S. § 3802(b).

Therefore,   "to   sustain   a   conviction    under   Subsection   3802(b),   the

Commonwealth must prove: (1) Appellant was driving, operating, or in actual

physical control of the movement of a vehicle, and (2) Appellant's BAC was is

[sic] at least 0.10% but less than 0.16% within two hours of driving,

operating, or being in control of the vehicle. See 75 Pa.C.S.A. § 3802(b)."

Commonwealth v. Haight, 50 A.3d 137, 141 (Pa.Super. 2012).

      Here, as discussed above, we conclude that the trial court properly

admitted evidence of Murray’s BAC result, which was .158 in his first sample

and .164 in his second sample. Thus, the evidence sufficiently established that

Murray’s BAC was within .10 and .16, as required for conviction under 75

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Pa.C.S.A. § 3802(b). See id. Therefore, we hold that Murray’s challenge to

the sufficiency of the evidence supporting his conviction for DUI-High rate of

alcohol, must fail. See Rushing, 99 A.3d at 420-21; Widmer, 744 A.2d at

751.

       In his last issue, Murray asserts that his conviction was against the

weight of the evidence. Murray points to what he deems to be inconsistencies

in Corporal Winesburg’s testimony regarding his observation of Murray prior

to his BAC test. Murray’s weight of the evidence claim also merits no relief.

       Our standard of review for challenges to the weight of the evidence is

well settled:

       As an appellate court, we cannot substitute our judgment for that
       of the finder of fact. Therefore, we will reverse a jury’s verdict and
       grant a new trial only where the verdict is so contrary to the
       evidence as to shock one’s sense of justice. A verdict is said to be
       contrary to the evidence such that it shocks one’s sense of justice
       when the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge to
       lose his breath, temporarily, and causes him to almost fall from
       the bench, then it is truly shocking to the judicial conscience.

Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa.Super. 2007) (quotation

marks and internal citations omitted). Further, when the trial court, as here,

has ruled on the weight of the evidence 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, appellate review is limited to whether the trial

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

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


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      In the instant case, as discussed above, the trial court found the

testimony of Corporal Winesburg to be credible regarding his observation of

Murray prior to administering the BAC test. The court specifically found any

conflict between Corporal Winesburg’s testimony and his written notation to

be minor and unavailing. Accordingly, we hold that the trial court did not abuse

its discretion by finding that Murray’s conviction was not contrary to the weight

of the evidence. See Champney, 832 A.2d at 408. Thus, Murray’s fourth issue

must also fail and we affirm Murray’s judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/19




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