J-S63006-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

JACOB ANDREW VRUDNEY

                          Appellant                No. 1435 WDA 2016


                Appeal from the Order Dated September 12, 2016
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0004704-2013


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 27, 2017

     Jacob Andrew Vrudney appeals from his judgment of sentence of three

to six years incarceration, imposed after a jury convicted him of homicide by

vehicle while driving under the influence, homicide by vehicle, driving under

the influence (“DUI”) – general impairment, DUI – high rate of alcohol, DUI

by a minor, reckless driving, and numerous other summary traffic offenses.

We affirm.

     On June 23, 2012, Andrew Lysell died following a tragic motor vehicle

accident. During the previous evening and early morning hours of the day in

question, the victim, Appellant, and Michael Kralovic, each eighteen years

old, drank several alcoholic beverages. Shortly before 5:30 a.m., Appellant

and Mr. Kralovic decided to leave a party. They agreed to travel by different
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routes to Mr. Kralovic’s house in order to see who would arrive first.     Mr.

Lysell traveled with Mr. Kralovic in a Lincoln sedan, and Appellant drove

separately in a Ford S-10 pickup truck.

      While traveling eastbound at eighty-five miles per hour in a forty-five

mile per hour zone, Mr. Kralovic failed to negotiate an uphill curve along

Saltsburg Road, in Murrysville, Westmoreland County.          The car veered

across the road and onto an embankment.          It then flipped and slid back

across the road, coming to rest at an angle in the eastbound lane.         Mr.

Kralovic and Mr. Lysell exited the vehicle, and Mr. Kralovic retreated to

safety at the side of the road. Mr. Lysell, on the other hand, exited into the

middle of the westbound lane.           At this moment, Appellant, traveling

seventy-eight miles per hour, sideswiped the overturned Lincoln and hit Mr.

Lysell as he stood in the westbound lane.      Upon impact, Mr. Lysell’s body

was thrown approximately thirty yards down the road, where he sustained a

severe head injury upon impact.        As a result of that impact, and several

other grave injuries, Mr. Lysell perished. Following the accident, a blood test

indicated that Appellant had a blood alcohol content (“BAC”) of 0.154%, and

Mr. Kralovic had a BAC of 0.135% within two hours of operating their

vehicles.

      Based   on    the   foregoing,    Appellant   was   charged   with   the

aforementioned offenses.      After protracted pre-trial litigation, including

numerous continuances, a joint, three-day jury trial commenced on January

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12, 2016. The jury returned a verdict of guilty to all non-summary offenses,

and the court subsequently found him guilty of all summary offenses, except

for one count of purchasing alcohol by a minor. Thereafter, Appellant was

sentenced to the statutory mandatory minimum sentence of three to six

years incarceration for homicide by vehicle while DUI, and a concurrent

sentence of nine to eighteen months imprisonment for homicide by vehicle.

The trial court did not impose any further punishment at the remaining

counts.

      Following sentencing, trial counsel sought leave to withdraw, which

was granted, and instant counsel was appointed.        Counsel filed a post-

sentence motion, which the trial court denied on September 13, 2016.

Appellant filed a timely notice of appeal, and complied with the trial court’s

order to file a Rule 1925(b) concise statement of errors complained of on

appeal. The trial court authored its Rule 1925(a) opinion, and this matter is

now ready for our review.

      Appellant presents two issues for our review:

   1. Whether the Court of Common Pleas erred in maintaining the
      Appellant’s guilty verdict was supported by sufficient evidence,
      despite it being inconsistent with co-defendant’s guilty verdict
      for Vehicular Homicide While DUI.

   2. Whether [the] Court of Common Pleas erred in maintaining the
      Appellant’s guilty verdict was supported by the weight of the
      evidence.

Appellant’s brief at 2.



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      Appellant first challenges the sufficiency of the evidence underpinning

his conviction for homicide by vehicle while DUI.       We are guided by the

following principles:

      When evaluating a sufficiency claim, our standard is whether,
      viewing all the evidence and reasonable inferences in the light
      most favorable to the Commonwealth, the factfinder reasonably
      could have determined that each element of the crime was
      established beyond a reasonable doubt. This Court considers all
      the evidence admitted, without regard to any claim that some of
      the evidence was wrongly allowed.         We do not weigh the
      evidence or make credibility determinations. Moreover, any
      doubts concerning a defendant’s guilt were to be resolved by the
      factfinder unless the evidence was so weak and inconclusive that
      no probability of fact could be drawn from that evidence.

Commonwealth v. Moyer, 171 A.3d 849, 852 (Pa.Super. 2017) (citation

omitted).

      The Vehicle Code defines the offense of homicide by vehicle while DUI

as:

      Any person who unintentionally causes the death of 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 violating section 3802 is guilty of a felony of
      the second degree when the violation is the cause of death and
      the sentencing court shall order the person to serve a minimum
      term of imprisonment of not less than three years.               A
      consecutive three-year term of imprisonment shall be imposed
      for each victim whose death is the result of the violation of
      section 3802.

75 Pa.C.S. § 3735(a).

      In    order   to   establish   homicide   by   vehicle   while   DUI,   the

Commonwealth must prove beyond a reasonable doubt:                “[1] a driving



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under the influence conviction, [2] the death of another person, and [3] the

death [was] a direct result of driving under the influence.” Commonwealth

v. Tanner, 61 A.3d 1043, 1047 (Pa.Super. 2013) (citing Commonwealth

v. Caine 683 A.2d 890 (Pa.Super. 1996) (en banc)).

      Appellant’s argument is straightforward. He alleges that the jury erred

in determining that he was the direct cause of the victim’s death. Instead,

he posits that he would not have hit the victim if Mr. Kralovic had not

crashed his vehicle first, causing the victim to scramble from the overturned

Lincoln and into the path of oncoming traffic. Further, Appellant maintains

that the jury’s verdict, which convicted both him and Mr. Kralovic of

homicide by vehicle while DUI, was inconsistent since it held both individuals

directly accountable for the victim’s death.     As such, he concludes the

evidence fails to support his conviction for homicide by vehicle while DUI.

We disagree.

      Instantly, when viewing the record in the light most favorable to the

Commonwealth as verdict winner, there is ample support to find Appellant

guilty beyond a reasonable doubt of homicide by vehicle while DUI.       It is

uncontested that Appellant was convicted of DUI after being found to have

operated his vehicle with a BAC of 0.154%, and that the accident resulted

Mr. Lysell’s death.   Further, the testimony revealed that Appellant was

driving at seventy-eight miles per hour around a curve in a forty-five mile

per hour zone, when he struck the victim with his pickup truck. Although

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there were a number of factors which alone constituted dangerous driving,

driving   while   intoxicated   was   clearly   the   most   egregious   element

contributing to the events that lead to Mr. Lysell’s death. We have no doubt

that the jury could find that Appellant’s DUI was a direct cause of Mr. Lysell’s

demise. Hence, no relief is due.

      Next, Appellant assails the weight of the evidence supporting his

conviction for homicide by vehicle by DUI. We have long held that “[a] true

weight of the evidence challenge concedes that sufficient evidence exists to

sustain the verdict but questions which evidence is to be believed.”

Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa.Super. 2014)

(citation omitted).   Further, “[w]here a trial court has ruled on a weight

claim, an appellate court’s role is not to consider the underlying question of

whether the verdict is against the weight of the evidence.”        Id.   Instead,

“[our] review is limited to whether the trial court palpably abused its

discretion in ruling on the weight claim.” Id. In so determining, we may not

reweigh the evidence or substitute our credibility determinations for that of

the factfinder. Id. Finally, “[a] new trial should be awarded when the jury’s

verdict is so contrary to the evidence as to shock one’s sense of justice,”

that is, the evidence must be “so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Id.

      In this regard, Appellant merely rehashes his contention that his

conviction cannot be maintained since the jury determined that both

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vehicular accidents directly caused the victim’s death.     He concludes that

this inconsistency should shock the conscience of the court.

       The trial court reviewed Appellant’s weight claim and determined that

all of the evidence available to the jurors supported Appellant’s conviction,

including testimony by the responding officer, the Commonwealth’s expert

witnesses, and the testimony provided by the police officer who prepared an

accident reconstruction report. After reviewing this evidence, the trial court

concluded that “the evidence presented at trial clearly shows [] the reckless

conduct of both [Appellant] and Mr. Kralovic, and that both defendants were

direct and substantial factors in bringing about the death of Mr. Lysell.” Trial

Court Opinion, 11/1/16, at 9. Since the trial court applied the appropriate

standard of review and determined that the evidence presented at trial was

not so tenuous as to shock its sense of justice, we discern no abuse of

discretion in its conclusion that the verdict was not against the weight of the

evidence.1

____________________________________________


1 As a final matter, we observe that Appellant’s sentence is premised upon
the application of the mandatory minimum sentence provision contained
within 75 Pa.C.S. § 3735. Recent United States and Pennsylvania Supreme
Court case law has caused this Court to look with a suspicious eye toward
the application of any mandatory minimum sentence. See Alleyne v.
United States, 133 S.Ct. 2151 (2013); Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015) (finding 18 Pa.C.S. § 6317 unconstitutional);
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (finding 42 Pa.C.S. §
9718 unconstitutional).

(Footnote Continued Next Page)


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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




(Footnote Continued) _______________________

In those cases, our Supreme Court has stressed that certain features of
those sentencing provisions cannot be maintained in light of Alleyne,
notably, any statute that requires the sentencing judge, as opposed to the
jury, to find at sentencing any fact that increases punishment. As § 3735
does not display the traditional hallmarks of a statute that conflicts with
Alleyne, and Appellant has not challenged the constitutionality of his
sentence, we will not analyze that issue herein, despite our ability to do so
sua sponte. Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.
2015). Nevertheless, we are cognizant that our Supreme Court continues to
grapple with the constitutionality of various mandatory minimum sentence
statutes. See Commonwealth v. Resto, 125 A.3d 449 (Pa.Super. 2015),
petition for allowance of appeal granted, 636 Pa. 462 (Pa. 2016).




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