J-S34003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LAWRENCE WETZEL

                            Appellant               No. 323 WDA 2013


            Appeal from the Judgment of Sentence August 30, 2012
              In the Court of Common Pleas of Venango County
                 Criminal Division at No(s): CC No. 378-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED DECEMBER 24, 2014

        Lawrence Wetzel appeals from the judgment of sentence entered

August 30, 2012, in the Venango County Court of Common Pleas. The trial

court imposed a sentence of 11½ to 23 months’ imprisonment, followed by

36 months’ probation, upon his jury conviction of homicide by vehicle. 1

Wetzel raises four issues on appeal: (1) the trial court erred in permitting

the deputy coroner to testify regarding the victim’s cause of death; (2) the

court erred in prohibiting Wetzel’s accident reconstruction expert from

testifying as to the cause of the accident; (3) the court erred in precluding

defense counsel, during closing argument, from providing illustrations on the

concepts of reasonable doubt and gross negligence; and (4) the verdict was
____________________________________________


1
    75 Pa.C.S. § 3732(a).
J-S34003-14



against the weight of the evidence.            For the reasons set forth below, we

affirm.

       Wetzel was arrested in March of 2011, and charged with homicide by

vehicle, as well as three summary traffic offenses.2          He filed an omnibus

pretrial motion seeking either habeas corpus relief, or suppression of his

statement to Trooper Dorden at the hospital.              Following a suppression

hearing, the trial court denied Wetzel’s motion on November 16, 2011.

Wetzel’s case proceeded to a jury trial, and, on July 19, 2012, the jury

returned a verdict of guilty on the charge of homicide by vehicle.3

       The charges underlying Wetzel’s conviction arose from a two-car motor

vehicle accident that occurred at approximately 6:10 a.m., on the morning

of July 14, 2010. Wetzel was driving his Dodge pickup truck northbound on

Route 8, a two-lane roadway in Venango County. He was traveling behind a

convoy of five construction workers heading to a job site in their personal

vehicles.   The vehicles were grouped “fairly close” to one another so they




____________________________________________


2
   See 75 Pa.C.S. §§ 3301 (driving on right side of roadway), 3305
(limitations on overtaking on the left), and 3306 (limitations on driving on
left side of roadway).
3
  The trial court subsequently found Wetzel guilty of the Section 3305 and
3305 summary offenses.       The Commonwealth withdrew the remaining
charge.




                                           -2-
J-S34003-14



they “wouldn’t lose each other” on the way to the jobsite. N.T., 6/18/2012,

at 28. The convoy was travelling near the posted 55 mph speed limit.4

        David Harrison, who was driving the second vehicle in the convoy,

testified that, although there was some fog that morning, it was lifting, and

the visibility was “pretty good.” Id. at 29. Harrison stated he saw Wetzel’s

truck attempt to pass the convoy by moving into the southbound lane, and

“pull right up next to the last vehicle and then go at a steady pace with

him.”     Id. at 30.      Harrison then noticed the victim’s vehicle traveling

southbound, with the headlights illuminated.      Id. at 31.    He testified it

appeared both cars noticed each other at the last minute, and both swerved

in the same direction, toward the southbound berm of the road, to avoid an

accident, but in doing so, crashed head on. Id. at 30.

        Jay Dreves was driving the last vehicle in the convoy. He testified he

did not notice Wetzel’s pickup until it pulled beside him in the southbound

lane. Almost immediately after he noticed the pickup, the accident occurred.

Id. at 51. Dreves confirmed that although there was a light fog, he could

see the lead car in his convoy. Id. at 52.

        Immediately following the accident, the men in the convoy pulled over

to assist the drivers. Dreves stated he took one look at the victim and knew


____________________________________________


4
 Although one driver estimated they were traveling “a little slower” than the
speed limit, two other drivers in the convoy estimated the group’s speed at
50 to 60 mph. N.T., 6/18/2012, at 28, 55, 120.



                                           -3-
J-S34003-14



he was dead. Id. Dreves and several other witnesses then pulled Wetzel

out of his truck, where he was pinned, before the truck caught on fire.

Dreves testified that Wetzel kept asking, “How is my truck?” even after

Dreves said to him, “You just fucking killed that kid.” Id. at 54.

      Wetzel was transported to the hospital due to his injuries, and

Pennsylvania State Trooper John Dorben was assigned to interview Wetzel,

about the accident.    Trooper Dorban was told only that the police were

“investigating a fatal accident and requested that we conduct an interview of

the operator.”   N.T., 6/19/2012, at 4.     He arrived at the hospital while

Wetzel was still in the intensive care unit.       Although Trooper Dorben

observed that Wetzel “appeared groggy,” he testified Wetzel gave him

appropriate responses.    N.T., 6/19/2012, at 5.      He asked Wetzel what

happened and Wetzel responded, “‘he might have been looking for [his] cell’

… that he had recalled crossing over the center line and an accident

ensuing.” Id.

      Pennsylvania State Police Corporal Michael Fox was dispatched to the

accident scene to perform a crash analysis.     He noted the area where the

vehicles collided was a no-passing zone, but “the area just south of the

collision zone was a yellow dash line which indicates that it is a passing

zone.”   N.T., 6/18/2012, at 77.   The corporal acknowledged that the skid

marks for Wetzel’s car were located in a lawful passing zone.        Id. at 105.

He also testified speed was not a factor in the crash. Id. at 106-107.




                                     -4-
J-S34003-14



       Venango County Deputy Coroner Christopher Hile arrived at the

accident scene at approximately 7:15 a.m., and viewed the victim still in his

vehicle. Id. at 150. He explained the victim had “some of the most severe

traumatic injuries that [he] had seen in a vehicle accident.”       Id. at 142.

After further examining the body at the funeral home, Deputy Coroner Hile

concluded that the victim died as a result of “blunt force trauma to the head

and chest.” Id. at 145.

       Wetzel did not testify at trial.          He presented only one witness,

mechanical engineer David Bizzak, who testified as an expert in accident

reconstruction.      Bizzak opined the victim did not have his headlights

illuminated before the accident, and, accordingly, Wetzel “didn’t see the

vehicle coming.” N.T., 6/19/2012, at 72. He further concluded the foggy

conditions also contributed to the accident. Id.

       On August 30, 2012, the trial court sentenced Wetzel to 11½ to 23

months’ imprisonment, followed by three years’ probation for the charge of

homicide by vehicle.        The court also imposed a $25 fine for each of the

summary offenses.        Wetzel filed a motion for reconsideration of sentence,

which the trial court denied by order entered January 4, 2013. This timely

appeal followed.5
____________________________________________


5
  On February 19, 2013, the trial court directed Wetzel to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Wetzel complied with the court’s order and filed a concise statement on
March 13, 2013.



                                           -5-
J-S34003-14



     In his first issue, Wetzel contends the trial court erred when it

permitted the deputy coroner to testify as an expert regarding the victim’s

cause of death.     Wetzel argues Deputy Coroner Hile was not qualified to

opine on the victim’s cause of death because he is not a medical

professional, he has limited qualifications and experience, and he did not

perform an autopsy, but rather, conducted only an external examination of

the body.

     Like any evidentiary challenge, “[t]he admission of expert testimony is

a matter of discretion [for] the trial court and will not be remanded,

overruled or disturbed unless there was a clear abuse of discretion.”

Commonwealth v. Brewer, 876 A.2d 1029, 1035 (Pa. Super. 2005),

appeal denied, 887 A.2d 1239 (Pa. 2005).          When considering whether a

witness is qualified to testify as an expert, the court must “determine

whether     the   witness   ‘has   any   reasonable   pretension   to   specialized

knowledge on the subject under investigation.’”             Commonwealth v.

Stallworth, 781 A.2d 110, 121 (Pa. 2001), quoting Miller v. Brass Rail

Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995).              See also Pa.R.E. 702.

However, “[i]t is well established … that expertise can be acquired through

occupational experience as well as by scientific study.” Commonwealth v.

Spotz, 756 A.2d 1139, 1160 (Pa. 2000), cert. denied, 532 U.S. 932 (2001).

     In the present case, the trial court, relying on Commonwealth v.

Smith, 808 A.2d 215 (Pa. Super. 2002), determined that Deputy Coroner

Hile “has a pretension of specialized knowledge on the cause of death in car

                                         -6-
J-S34003-14



accidents” due to his “many years of experience as both mortician and

deputy coroner combined with his education and experience as an EMT[.]”

Trial Court Opinion, 5/9/2013, at 10.

      We find the decision in Smith instructive. In that case, like here, the

Court considered whether a deputy coroner was qualified to testify as an

expert, and provide his opinion on the victim’s cause of death. Id. at 227.

Although this Court acknowledged “that every lay coroner is not entitled to

offer an opinion as to the cause of death at trial[,]” the panel concluded that

the deputy in that case had a “a pretension of specialized knowledge on the

subject matter in question, qualifying him as an expert.”     Id. at 229-230

(emphasis supplied).   The panel emphasized the deputy’s “many years of

experience as both mortician and the deputy coroner, combined with his

education[.]” Id. at 230. Indeed, the deputy coroner in Smith had held the

position for 15 years, during which time he had investigated hundreds of

deaths.   He had also been a licensed mortician for 16 years, and had a

degree in mortuary science. In addition, he had taken three years of college

coursework studying anatomy, pathology, and other sciences. Id.

      We conclude that the deputy coroner in the present case possesses

similar experience and education to the expert proffered in Smith. Deputy

Coroner Hile testified that, at the time of the accident, he had been a deputy

coroner for nine years, eight of them in Clarion County. N.T., 6/18/2012, at

137-138. He had also been a licensed mortician for 28 years, and an EMT

for more than 25 years.     Deputy Coroner Hile had a degree in mortuary

                                     -7-
J-S34003-14



science, which included classes in anatomy and biology, and an associates

degree from a local community college. Id. at 138.      He estimated that, as

a deputy coroner, he had been called to the scene of an accident where

someone was deceased “[d]ozens of times.”        Id. at 140. Accordingly, we

detect no abuse of discretion on the part of the trial court in qualifying

Deputy Coroner Hile as an expert witness.

       Wetzel also argues that Deputy Coroner Hile’s external, cursory

examination of the victim was insufficient to qualify him to opine on the

victim’s cause of death, particularly since he did not perform an autopsy.

Again, we disagree.

       A coroner, or one duly appointed as a deputy, is statutorily directed to

investigate sudden or traumatic deaths within the county to determine (1)

the cause of death and (2) whether the death may have resulted from a

criminal act. 16 P.S. §§ 1231, 1237(a)-(b). If, after the investigation, the

coroner is unable to determine the cause and manner of death, he is

then authorized to order an autopsy, and if that proves futile, an inquest.

16 P.S. § 1738(a)-(b).

       In Smith, the deputy coroner determined the victim’s cause of death

after performing a preliminary examination at the scene, and a more

thorough examination after the body was transported to the hospital.6

____________________________________________


6
 Similar to the present case, it appears that no autopsy was performed in
Smith. See Smith, supra, 808 A.2d at 229 n. 11.



                                           -8-
J-S34003-14



Smith, supra, 808 A.2d at 230. The deputy coroner observed the victim

had “extensive hemorrhaging from the mouth, head, ears and nose” and

that “[h]is chest and abdomen were ‘very spongy to the touch and

palpitation.’” Id. (record citation omitted). Based upon “his experience and

examination,” he opined that the victim died as a result of “blunt force

injuries caused by the accident.”      Id.    This Court found no abuse of

discretion on the part of the trial court in concluding that the deputy coroner

was qualified to render an opinion as to the victim’s cause of death. Id.

      Here, Deputy Coroner Hile also conducted a preliminary examination of

the victim at the crash scene and a subsequent, more thorough examination

at the funeral home. At the accident scene, Deputy Coroner Hile noted the

victim had extensive injuries to his head and chest, which he described as

“probably some of the most severe traumatic injuries that [he] had seen in a

vehicle accident.”   N.T., 6/18/2012, at 142.      Later, after the body was

transported to the funeral home, the deputy performed “an extensive head-

to-toe survey of [the victim’s] injuries[,]” which revealed the following:

      [The victim’s] head had some burning on the top of his head that
      looked severe. He also had a completely dislocated or severed
      jawbone or mandible as well as a maxillary bone which was
      completely broken off inside his mouth. … [The victim] had a
      skull fracture on the back of his head. He had extensive damage
      – swelling and extensive damage to his abdomen. Extensive
      bruising to his abdomen. He had compound fractures of both
      arms. The bones were protruding through the skin of both of his
      arms. Abdominal bruising. And I also believe that he had
      fractured legs, as well.




                                     -9-
J-S34003-14



Id. at 143. Furthermore, Deputy Coroner Hile testified he also believed the

victim had cervical damage because when he palpated the victim’s neck

from side to side, it was loose, as if the head was “non-attached to the rest

of his body.” Id. at 152. Based upon these findings, Deputy Coroner Hile

determined that the victim’s cause of death was “blunt force trauma to the

head and chest,” and the manner of death was “accidental.”         Id. at 145,

148. We agree with the trial court’s determination that Deputy Coroner Hile,

whose opinion was supported by physical findings, was qualified, based upon

his experience and education, to testify regarding the victim’s cause of

death. Accordingly, Wetzel’s first issue is meritless.7


____________________________________________


7
  Although the Smith Court cautioned against the per se qualification of lay
coroners as expert witnesses, the Court’s concerns are not evident in the
present case. Indeed, the Smith Court urged trial courts to consider both
the qualifications of the lay coroner, as well as the facts of the particular
case, before determining whether a coroner could testify as an expert.
Smith, supra, 808 at 229, n. 11. The Court explained:

       For example, in this case if the facts indicated that the accident
       occurred on the center line instead of the victim's fog line, who
       could say that the victim did not have a heart attack and swerve
       into [the defendant’s] lane? The impact would produce the same
       outward injuries but without an autopsy, no one would know that
       a heart attack occurred.

Id. Similarly, in the present case, the undisputed facts indicate that Wetzel
was travelling in the wrong lane of traffic when the accident occurred.
Moreover, there was no evidence presented that either Wetzel or the victim
had any medical condition that may have contributed to the accident.




                                          - 10 -
J-S34003-14



      Next, Wetzel challenges the trial court’s ruling precluding his accident

reconstruction expert from rendering an opinion as to the cause of the

accident because the opinion went to the ultimate issue to be decided by the

jury. Specifically, Wetzel objects to the trial court’s preclusion of his expert’s

testimony regarding “the factors that led to the cause of the accident[,]”

namely “the weather combined with the lack of vehicle lighting.” Wetzel’s

Brief at 33, 35. He argues:

      It was critical for the jury to understand that there was a
      reasonable explanation for why [he] attempted to pass vechicles
      when the [victim’s] vehicle was approaching him.         Where
      [Wetzel] entered the oncoming lane … was a designated lawful
      passing zone. The Commonwealth’s theory was that [Wetzel]
      acted recklessly because he left his lane of travel while [the
      victim] was obviously approaching. Therefore it was crucial to
      the defense in the case to inform the jury that in the defense
      expert’s opinion, the weather combined with the lack of vehicle
      lighting, caused the vehicles, specifically the defendant’s not
      be able to see each other otherwise he would not have
      attempted the passing maneuver.

Id. at 34-35 (emphasis supplied).

      As noted supra, questions concerning the admissibility of expert

testimony are within the discretion of the trial court, which we will not

disturb absent an abuse of that discretion. Brewer, supra, 876 A. 1035.

Generally, “[a]n expert’s testimony is admissible when it is based on facts of

record and will not cause confusion or prejudice.”          Commonwealth v.

Huggins, 68 A.3d 962, 966 (Pa. Super. 2013), appeal denied, 80 A.3d 775

(Pa. 2013).     Moreover, “opinion [testimony] is not objectionable just

because it embraces an ultimate issue.” Pa.R.E. 704.


                                     - 11 -
J-S34003-14



      Prior   to   the   testimony    of   defense   expert   David   Bizzak,   the

Commonwealth asked for an offer of proof, contending that Bizzak’s expert

report relied upon “information from the police report which [was] not in line

with the testimony” provided at trial, and which included “a heck of a lot of

assumptions.” N.T., 6/19/2012, at 24. Following some discussion regarding

Bizzak’s findings, the trial court asked defense counsel to summarize

Bizzak’s final conclusion. Counsel stated:

      His final conclusion, as he said, is that – let me read it exactly.
      That it was likely that the vehicles did not see each other
      and that in his opinion the lights of the vehicle were off, given
      his review of where the light switch was and how the body ended
      up, and that the test for hot shock wasn’t done that would have
      confirmed that. That was available. And that given the weather
      conditions, the combination of the two led to the accident.

Id. at 35 (emphasis added).          The court ruled Bizzak could “express an

opinion based upon his experimentation and his observation that the light

switch was in the off position[,]” and, assume, based on a notation in the

investigating officer’s report, that fog was a factor. Id. at 36-37. However,

the court agreed with the Commonwealth that Bizzak’s ultimate opinion, that

the drivers likely did not see one another before the accident, was

speculation, and not permissible. Id. at 36.

      During his testimony, Bizzak opined the headlights of the victim’s

vehicle were off at the time of the accident. In making this determination,

Bizzak compared photos of the light switch assembly in the victim’s vehicle




                                       - 12 -
J-S34003-14



at the accident scene, with a replacement switch assembly for that same

vehicle.8   N.T., 6/19/2012, at 68-71.             Further, Bizzak explained that “in

foggy conditions if somebody’s lights are not on[,] they are more difficult to

see.” Id. at 72-73. However, when questioned regarding his conclusion “as

to the factors that led to the cause of this accident[,]” the Commonwealth

objected, based upon the court’s earlier ruling. Id. at 74. The trial court

sustained the objection. Id. at 73.

       In defending its ruling, the trial court explained:

       [T]he expert’s opinion on the cause of the accident was too
       speculative when [in] his report the expert opined, “that it was
       likely that the vehicles did not see each other and that given his
       review of where the light switch was and how the body ended
       up, and that the test for hot shock wasn’t done that would have
       confirmed that.[9] That was available. And that given the
       weather conditions, the combination of the two led to the
       accident.” Jury Trial Day 2 of 2 Tr. 35: 12-21. The expert did
       not have a basis for saying that the two drivers did not see each
       other and his opinion on the weather conditions was directly
       contradicted by the testimony at the trial.

Trial Court Opinion, 5/9/2013, at 19.

____________________________________________


8
  It is important to note that the Commonwealth’s accident reconstruction
expert, Pennsylvania State Police Corporal Michael Fox, who responded to
the crash site, testified that as a result of the accident the entire front end of
the vehicle was “[b]asically in [the victim’s] lap.” N.T., 6/18/2012, at 116.
9
  A hot shock test assesses whether “there has been energy transmitted or
passed through the filament of an incandescent lamp … [and] can tell you if
a light was illuminated at the time.” N.T., 6/18/2012, at 113. The
investigating officer testified the test would not have been helpful in this
particular case, while Bizzak disagreed. Id. at 114-115; N.T., 6/19/2012, at
67-68.



                                          - 13 -
J-S34003-14



       We detect no abuse of discretion on the part of the trial court. It is

noteworthy that Wetzel did not testify at trial.         Thus, even assuming the

victim’s headlights were not illuminated, an assumption which was directly

contradicted by the testimony of an eyewitness, any opinion as what each

driver saw immediately before the accident was pure speculation. Moreover,

although the investigating officer acknowledged, under cross-examination,

that he noted in his accident report “the foggy conditions could have had a

substantial impact in [the] accident,”10 he did not testify that the weather

was a causal factor at trial.         In fact, the only testimony concerning the

weather conditions at the time of the accident was provided by the

eyewitnesses, Harrison and Dreves.             Harrison testified that “the fog was

lifting … it wasn’t real bright … but it was still pretty good visibility.” N.T.,

6/18/2012, at 28-29 (emphasis added). Dreves also testified that although

there was “a real light fog[, he] could see the lead car” in their convoy. Id.

at 52. Indeed, there was no testimony from any of the eyewitnesses that

adverse weather conditions caused poor visibility and contributed to the

accident.

       Nevertheless, Bizzak was permitted to testify (1) that the investigating

officer concluded in his report that fog “was likely a factor or cause of the
____________________________________________


10
   See N.T., 6/18/2012, at 107. In fact, the officer did not arrive at the
scene until approximately two hours after the crash. Id. at 68. When asked
if there was “still a slight fog at the time of the accident[,]” he replied,
“That’s what was reported to me.” Id. at 107.



                                          - 14 -
J-S34003-14



accident[,]” (2) that based upon Bizzak’s review of the accident scene

photos, and experimentation with a similar lighting assembly, he determined

the victim’s headlights were off at the time of the accident, (3) that Dreves,

who was beside Wetzel’s vehicle “just before the collision did not see the

[victim’s] pickup approaching[,]” and (4) that “in foggy conditions if

somebody’s lights are not on they are more difficult to see.” Id. at 63, 71,

72-73. Therefore, Bizzak was permitted to testify regarding the factors that

he believed contributed to the accident, and we detect no abuse of discretion

on the part of the trial court in precluding Bizzak from providing a

speculative opinion as to what the drivers did or did not see immediately

before the collision. Accordingly, Wetzel’s second claim fails.

      In his third issue, Wetzel argues the trial court erred in limiting his

attorney’s closing arguments.     Specifically, the court prohibited defense

counsel from providing the jury with illustrations on the concepts of

reasonable doubt and gross negligence.       Wetzel contends “[i]t was crucial

for the defense counsel to be able to explain both reasonable doubt and

gross negligence to the jury in terms that would be able to apply to

everyday life” as opposed to simply in legal terms. Wetzel’s Brief at 42.

      It is well-established that “it is the province of the trial court to

instruct the jury as to the law which applies in a particular case.”

Commonwealth v. Crawford, 427 A.2d 166, 172 (Pa. Super. 1981).

Nevertheless, counsel for both the defense and the Commonwealth is

permitted to discuss the law in closing arguments “as long as he[ or she]

                                    - 15 -
J-S34003-14



states the law clearly and accurately.” Commonwealth v. Rios, 684 A.2d

1025, 1034 (Pa. 1996), cert. denied, 520 U.S. 1231 (1997).

      Here,   Wetzel   argues   the   trial    court   improperly   sustained   the

Commonwealth’s objections to two illustrations his counsel provided during

closing arguments. Both times, counsel informed the jury that the judge will

instruct them on the law. He then proceeded to give illustrations concerning

the applicable law.    First, in discussing the concept of reasonable doubt,

Wetzel’s attorney stated:

      Probably the greatest purchase we will ever make in our lives is
      the purchase of a home. So you decide one day it is time to
      purchase that home and maybe you decide, well, I am going to
      make a list of what I am looking for in that home. Location,
      perhaps school district, in your price range, the style of home.
      You get yourself a real estate agent, and then one day you get
      the phone call, “I found a house.” You go over and sure enough
      it’s everything on that list. You walk through the house and
      when you come down, there in front of you is the agreement of
      sale. The question then becomes do you sign that agreement of
      sale right then and there, or do you pause and say, you know
      what, this is a big decision; I’m going to think about it. Well, if
      you pause or hesitate, that is what –

             [Prosecutor]: Your Honor, I am going to object to his
      definition of reasonable doubt.

N.T., 6/19/2012, at 91-92.      After a sidebar discussion, the trial court

sustained the Commonwealth’s objection, stating “I don’t agree that is an

accurate analogy of reasonable doubt, and I’m going to tell the jury that I

will tell them what a reasonable doubt is and we will move on.” Id. at 93

The trial court then instructed the jury, “[W]ith regard to [defense counsel’s]




                                      - 16 -
J-S34003-14



definition of reasonable doubt, I will give you instructions that you will follow

on that subject.” Id.

      Next, with respect to the mens rea of gross negligence, necessary to

convict a defendant of homicide by vehicle, counsel argued:

      Merely violating the Motor Vehicle Code and there being an
      ensuing death is not enough. There has to be gross negligence
      or recklessness. Again, the Court will define that for you. But in
      your everyday life when you think of traffic, when you think of
      what constitutes the gross deviation of standard, a person
      driving down the road inattentive, inattentiveness does not
      constitute gross negligence. Decides to make a left-hand turn
      into a convenience store and not paying attention doesn’t see a
      vehicle, a motorcycle, coming the other way –

            [Prosecutor]: Your Honor, I am going to object to a
      recitation by defense attorney as to what he believes is gross
      negligence or not gross negligence.        That would be a jury
      decision based on the facts of this case, not any other facts.

            [Defense Counsel]: Your Honor, it’s not my belief; it is the
      case law, and I believe I am allowed to in argument--

            [Prosecutor]: Your Honor, can we have a side bar?

N.T., 6/19/2012, at 104.     During the ensuing sidebar discussion, the trial

court recognized that defense counsel’s example was based upon the facts

of the Supreme Court’s decision in Commonwealth v. Heck, 535 A.2d 575

(Pa. 1987), but sustained the Commonwealth’s objection.

      In its opinion, the trial court explained that it sustained the objections

because it believed defense counsel’s examples “might confuse the jury.”

Trial Court Opinion, 5/9/2013, at 22, 25.        In particular, with regard to

counsel’s reliance on the Heck case, the court stated, “[s]hort of reading the



                                     - 17 -
J-S34003-14



entire case the use of particular facts in relation to the standard of gross

negligence would be incomplete and the jury needed to decide gross

negligence based on the facts present in the case at hand, not the Heck

facts.” Id. at 24. Furthermore, during its charge, the trial court instructed

the jury on the concepts of reasonable doubt and gross negligence, and

Wetzel raised no object to the court’s charge.11     See N.T., 6/19/2012, at

137, 150-151, 153. Therefore, no relief is warranted on this claim.

       Lastly, Wetzel challenges the weight of the evidence, arguing that the

testimony did not support a finding of gross negligence. We find this issue

waived.

       It is well-settled that when reviewing a weight of the evidence claim,

       an appellate court does not substitute its judgment for the finder
       of fact and consider the underlying question of whether the
       verdict is against the weight of the evidence, but, rather,
____________________________________________


11
   We note the trial court’s instruction on the concept of gross negligence as
applicable to a charge of homicide by vehicle appears to be incorrect. See
N.T., 6/19/2010, at 150-151. While the definition of gross negligence
provided by the trial court was proper under the pre-2001 version of the
statute when the required mens rea was “unintentionally,” the charge was
amended, effective February 18, 2001, to require a mens rea of “recklessly
or with gross negligence.” 75 Pa.C.S.A. § 3732, 2000, Dec. 20, P.L. 772,
No. 108, § 1, effective in 60 days. Under the current version of the statute,
“the concept of gross negligence is encompassed within the concept of
recklessness[.]” Commonwealth v. Grimes, 842 A.2d 432, 434 (Pa.
Super. 2004), appeal denied, 864 A.2d 1203 (Pa. Super. 2004).
Nevertheless, as noted above, Wetzel failed to object to the trial court’s
charge. Accordingly, the propriety of the instruction is not before us on
appeal. Furthermore, we note the Heck case, upon which counsel relied for
its illustration, was also decided under the former statute.




                                          - 18 -
J-S34003-14


       determines only whether the trial court abused its discretion in
       making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S. Ct. 1792 (U.S. 2014). For that reason, “[a] weight of the evidence

claim must be preserved either in a post-sentence motion, by a written

motion before sentencing, or orally prior to sentencing. Commonwealth v.

Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601

(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.

       Here, Wetzel neglected to challenge the weight of the evidence in his

post-sentence motion. Nor did he raise a challenge either prior to or during

the sentencing hearing.           See generally N.T. 8/20/2012.   Therefore,

Wetzel’s final claim is waived for our review.12

       Judgment of sentence affirmed. Commonwealth’s Motion to Expedite

Panel Decision is denied as moot.




____________________________________________


12
   We note the trial court found the issue waived for a different reason,
namely, that the issue as framed in Wetzel’s concise statement, was too
vague to permit review.        Trial Court Opinion, 5/9/2013, at 26.    See
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (“[I]f a
concise statement is too vague, the court may find waiver.”), appeal denied,
32 A.3d 1275 (Pa. 2011). However, this Court may affirm a trial court's
decision if it is correct on any basis.” Commonwealth v. Turner, 73 A.3d
1283, 1286 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014).




                                          - 19 -
J-S34003-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




                          - 20 -
