J-S46021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

THOMAS RICHARD MARTY,

                         Appellant                     No. 173 MDA 2017


         Appeal from the Judgment of Sentence December 2, 2016
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001394-2016


BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 18, 2017

      Appellant, Thomas Richard Marty, appeals from the judgment of

sentence entered on December 2, 2016, as made final by the denial of

Appellant’s post-sentence motion on December 21, 2016. We affirm.

      In 2015, Appellant was arrested and charged with a number of crimes,

including driving under the influence of alcohol (“DUI”). During Appellant’s

bench trial, the Commonwealth presented the testimony of witness Matthew

Scalzo and Lancaster Police Officer Jason Wendlebeck.

      Mr. Scalzo testified that, at around 12:30 a.m. on October 3, 2015, he

was operating his vehicle on New Holland Avenue, in Lancaster. Mr. Scalzo

testified that he was stopped at a traffic light, with his turn signal and lights

on, and was waiting to turn into a parking lot when a vehicle, being driven

by Appellant, crashed into the rear-end of his car. N.T. Trial, 12/2/16, at 4-



* Former Justice specially assigned to the Superior Court.
J-S46021-17



6. The collision “totaled” Mr. Scalzo’s car and rendered the car inoperable.

Id. at 6.

      Mr. Scalzo testified that he and Appellant exited their cars and spoke;

upon interacting with Appellant, Mr. Scalzo noticed that Appellant “appeared

to be intoxicated.” Id. at 13. Further, Mr. Scalzo testified that, “when the

first officer showed up[, the officer asked Appellant] . . . if he was drinking

that night and he said yes.” Id.

      Lancaster Police Officer Jason Wendlebeck testified that he responded

to the accident involving Appellant and Mr. Scalzo.       Officer Wendlebeck

testified that, when he arrived on the scene, he noticed heavy damage to

the rear of Mr. Scalzo’s vehicle and to the front of Appellant’s vehicle;

further, Officer Wendlebeck noticed “[n]o skid marks on the road, no ABS

marks to indicate that there was any try to stop.”     Id. at 16.   As Officer

Wendlebeck testified:

        When I initially saw [Appellant], . . . he was swaying back
        and forth. He seemed unbalanced on his feet.

        As I approached, I was approximately 3 feet away from
        [Appellant] and I did detect an odor of alcoholic beverage
        upon his breath, upon his person. As I began speaking with
        him, I asked initially what had happened [a]nd his
        statement was, I tried to make the right and I didn’t make
        it.

        I was sort of taking it in. I recognized he had glassy,
        bloodshot eyes. He did slur his speech as he spoke to me .
        . . [and] when he did speak, he had a thick tongue. Several
        of the words, as we spoke with each other, were mumbled.




                                     -2-
J-S46021-17


        And I did ask him if he had been drinking. He said yes, I
        had at least three beers.       I assumed, based on his
        presentation, his motor skills, that he actually consumed
        probably quite a bit more than that.

        At that time, I requested another officer to come to the
        scene so I [could] perform standardized field sobriety tests.
        It was several moments – minutes actually – until that
        other officer arrived. During that time, I began filling out
        the accident forms, and I just observed [Appellant], and he
        continued to, as Mr. Scalzo said, he was just staggering
        about on the sidewalk. He was kicking objects, headlamp,
        just debris that was in the roadway. . . .

        Through that interaction, as I was waiting for the other
        officer to arrive, [Appellant] made several unintelligible
        statements. There was a little grumbling, some cursing at
        times. He wasn’t making a whole lot of sense. He was kind
        of scatter-brained.

Id. at 15-18 (some internal paragraphing omitted).

      When the second officer arrived on the scene, Officer Wendlebeck

requested that Appellant submit to the field sobriety tests.     At that point,

Appellant began to complain of head and neck injuries and, as a result of

Appellant’s   complaints,   Officer   Wendlebeck   requested   the   aid   of   an

ambulance. Further, because of Appellant’s complaints, Officer Wendlebeck

was unable to perform the field sobriety tests. Id.

      The ambulance transported Appellant to Lancaster General Hospital.

While in the hospital, Officer Wendlebeck requested that Appellant submit to

a blood draw, to test his blood alcohol content. Officer Wendlebeck testified

that, while he read Appellant the PennDOT DL-26 form, Appellant “was

screaming throughout the entire reading of the form and just very – just




                                       -3-
J-S46021-17



inappropriate words and language throughout the hospital as I read it to

him.” Id. at 19. Appellant then refused the requested blood draw. Id.

        Officer Wendlebeck further testified that, while they were in the

hospital, he observed Appellant and came to the conclusion that Appellant

“had imbibed a very large amount of alcoholic beverage.” Id. at 20. Officer

Wendlebeck testified:

          [Appellant] had glassy, bloodshot eyes. He had slurred
          speech. He mumbled. He did not have fine motor skills.
          He staggered about. He was off his balance. He would tip
          from one way to the other. He was incoherent, rambling
          through the several-minute period. He had a wide range of
          mood swings and emotions, and he had a very strong odor
          of alcoholic beverage. I [could] smell it from at least 3 feet
          away.

Id.

        Appellant also testified at the trial.   According to Appellant:   the

accident occurred because Mr. Scalzo’s vehicle “didn’t have [its] lights on;”

he never spoke with Mr. Scalzo after the accident; he only admitted to

Officer Wendlebeck that he had drunk “[a c]ouple of beers earlier;” he

believed “the effects of [the] alcohol had dissipated by the time he got

behind the wheel of the car;” and, his “glassy eyes” and “mumbling” were

caused by the accident, not intoxication. Id. at 32, 33, and 42.

        The trial court found Appellant guilty of DUI (general impairment) and

the summary offense of following too closely.1 On December 2, 2016, the
____________________________________________


1
    75 Pa.C.S.A. §§ 3802(a)(1) and 3310(a), respectively.



                                           -4-
J-S46021-17



trial court sentenced Appellant to serve five days to six months in jail for the

DUI conviction. N.T. Trial, 12/2/16, at 48.

      Appellant filed a timely post-sentence motion and claimed that the trial

court’s verdict was against the weight of the evidence because “the evidence

that [Appellant’s] behavior was a result of being in a car accident was

substantially stronger than the claims that he was intoxicated to the degree

that he could not operate a vehicle safely.”        Appellant’s Post-Sentence

Motion, 12/12/16, at 3.

      The trial court denied Appellant’s post-sentence motion on December

21, 2016 and Appellant filed a timely notice of appeal.

      Appellant raises one claim on appeal:

        Did the trial court abuse its discretion in finding that the
        verdict of guilty of [DUI] was not against the weight of the
        evidence where there was significant evidence that
        [Appellant’s] indicia of being under the influence of alcohol
        were attributable to other, innocuous factors?

Appellant’s Brief at 6.

      As our Supreme Court has explained:

        a verdict is against the weight of the evidence only when
        the [factfinder’s] verdict is so contrary to the evidence as to
        shock one’s sense of justice. It is well established that a
        weight of the evidence claim 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.
        Rather, the role of the trial court is to determine that
        notwithstanding all the evidence, 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. A motion for a
        new trial on the grounds that the verdict is contrary to the

                                     -5-
J-S46021-17


        weight of the evidence concedes that there is 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.

        Significantly, in a challenge to the weight of the evidence,
        the function of an appellate court on appeal is to review the
        trial court’s exercise of discretion based upon a review of
        the record, rather than to consider de novo the underlying
        question of the weight of the evidence. In determining
        whether this standard has been met, appellate review is
        limited to whether the trial judge’s discretion was properly
        exercised, and relief will only be granted where the facts
        and inferences of record disclose a palpable abuse of
        discretion. It is for this reason that the 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. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

quotations and citations omitted). “An abuse of discretion is not merely an

error of judgment, but is rather the overriding or misapplication of the law,

or the exercise of judgment that is manifestly unreasonable, or the result of

bias, prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (internal

quotations and citations omitted).

      On appeal, Appellant claims that the trial court erred when it denied

his weight of the evidence claim because “[t]he facts presented on the

record more strongly support that the alleged indicia of intoxication were

actually innocuous byproducts of the accident, not indicators of actual

intoxication.” Appellant’s Brief at 12. This argument clearly fails. As the

trial court explained:




                                      -6-
J-S46021-17


        At [Appellant’s] trial, the Commonwealth presented the
        testimony of two witnesses who provided the [trial] court
        with ample testimony detailing [Appellant’s] appearance of
        intoxication. Most notably, [Appellant], who had crashed
        his car, had slurred speech, glassy eyes, and an irritable
        demeanor. Further, when advised that he was going to be
        required to perform a field sobriety test, [Appellant] only
        then complained of head and neck injuries and a field
        sobriety test was not performed. The [trial] court was
        presented [with] testimony that [Appellant] was muttering
        inaudible words and kicking parts from his car on the street,
        evidence that the [trial] court believed showed [Appellant’s]
        intoxication. The police officer who responded to the scene
        of [Appellant’s] crash testified that he detected a strong
        odor of alcoholic beverages on [Appellant], and described to
        the [trial] court [Appellant’s] unruly behavior when
        [Appellant] was made aware that he could not leave the
        hospital and that his blood needed to be drawn. Moreover,
        the [trial] court heard the testimony of [Appellant], in which
        he admitted that he had consumed alcohol prior to driving
        his automobile. After hearing the testimony and reviewing
        the evidence, the [trial] court arrived at the conclusion that
        [Appellant] drove under the influence of alcohol.

Trial Court Opinion, 5/22/17, at 2 (some internal capitalization omitted).

      We agree with the trial court’s cogent analysis and conclude that the

trial court did not abuse its discretion when it denied Appellant’s weight of

the evidence challenge. Therefore, Appellant’s claim on appeal fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017


                                     -7-
