J-S50035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JORDAN R. STANLEY

                            Appellant                    No. 1875 MDA 2015


            Appeal from the Judgment of Sentence October 1, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0002355-2015


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                  FILED JUNE 29, 2016

        Appellant, Jordan R. Stanley, appeals from the October 1, 2015

judgment of sentence of 72 hours’ incarceration, imposed by the trial court

after it convicted Appellant of driving under the influence of alcohol (DUI),

and the summary offense of operating a vehicle in the wrong direction on a

roadway designated for one-way traffic.1       After careful consideration, we

affirm.

        The relevant factual background is as follows.

              On the morning of March 6, 2015, Appellant was
              driving home from a sports bar in the Allison Hill
              area of Harrisburg, where he had consumed alcohol
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(1) and 3308(b), respectively.
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            over the course of two hours. At approximately 1:40
            a.m., Officer Gregory Hill of the Harrisburg Bureau of
            Police observed Appellant’s vehicle make a left-hand
            turn from northbound Cameron Street onto
            westbound Maclay Street. Upon making the turn,
            Appellant “cut his turn too short” and ended up
            travelling westbound in the eastbound travel lane.
            Officer Hill paralleled Appellant from the correct
            (westbound) lane of Maclay Street until the lanes
            were no longer divided by a median strip, whereupon
            Officer Hill activated his emergency lights and
            directed Appellant to pull into a side parking lot of
            the Pennsylvania Farm Show Complex.               Once
            stopped, Appellant exited his vehicle. Officer Hill
            exited his patrol car and ordered Appellant to return
            to his vehicle, which he refused to do despite
            repeated instructions from Officer Hill. Officer Hill
            handcuffed Appellant out of concern that he might
            flee the traffic stop. Officer Hill noted that Appellant
            smelled of alcohol, that his eyes were bloodshot and
            glassy, and that he was unsteady on his feet and
            using his car for support. Based on his observations
            of Appellant’s physical demeanor and his turn into
            the wrong lane of traffic, Officer Hill placed him
            under arrest for suspicion of DUI. A police transport
            van delivered Appellant to county booking. Once
            there, Officer Hill read [Appellant] the DL-26
            chemical test consent form, explaining to him the
            possible penalties for refusing to submit to a blood
            test. [Appellant signed the form and declined to
            take the blood test.]

Trial Court Opinion, 1/22/16, at 1-3 (citations to notes of testimony and

footnote omitted).

      Appellant was charged with the aforementioned offenses. On October

1, 2015, the trial court convened Appellant’s bench trial. After the trial court

heard evidence and rendered its guilty verdicts, Appellant indicated that he

wanted “to do sentencing now.”        N.T., 10/1/15, at 36.     The trial court


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sentenced Appellant to 72 hours’ incarceration in Dauphin County Prison,

and ordered Appellant to complete 50 hours of community service, and pay

costs and fines. Appellant filed a timely post-sentence motion on October 2,

2015, in which he claimed that his conviction was against the weight of the

evidence.     The trial court denied the motion on October 8, 2015.         On

October 20, 2015, Appellant filed this timely appeal.2

       On appeal, Appellant raises two issues for our review.

              [1.]      Whether the trial court erred in denying
                        Appellant’s Post-Sentence Motion where the
                        verdict was against the weight of the
                        evidence so as to shock one’s sense of
                        justice where the Commonwealth never
                        showed that [Appellant] was incapable of
                        driving his vehicle safely?

              [2.]      Whether the Commonwealth failed to
                        present sufficient evidence to sustain
                        Appellant’s    convictions     where       the
                        Commonwealth did not prove that Appellant
                        was incapable of driving his vehicle safely.

Appellant’s Brief at 5.

       We begin by noting that the crime of DUI is defined, in pertinent part,

as follows.

              § 3802. Driving under influence of alcohol or
              controlled substance

              (a) General impairment.--

____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            (1) An 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 individual is rendered incapable of safely
            driving, operating or being in actual physical control
            of the movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1).

      In his first issue, Appellant argues that the verdict was against the

weight of the evidence.   An allegation that a “verdict was against the weight

of the evidence is addressed to the discretion of the trial court.”

Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008), cert. denied,

Diggs v. Pennsylvania, 129 S.Ct. 1580 (2009). Where the 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. Rather, “[our] review is limited to whether the trial court palpably

abused its discretion in ruling on the weight claim.”       Commonwealth v.

Tharp,   830   A.2d   519,   528   (Pa.    2003),   cert.   denied,   Tharp   v.

Pennsylvania, 541 U.S. 1045 (2004).          “The weight of the evidence is

exclusively for the finder of fact who is free to believe all, part, or none of

the evidence and to determine the credibility of the witnesses. An appellate

court cannot substitute its judgment for that of the finder of fact.”

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

omitted), cert. denied, Champney v. Pennsylvania, 542 U.S. 939 (2004).

      Before addressing the merits of Appellant’s weight claim, we first

determine whether he has properly preserved the issue for appellate review.

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Pennsylvania Rule of Criminal Procedure 607 provides that a claim that the

verdict was against the weight of the evidence “shall be raised with the trial

judge in a motion for a new trial:       (1) orally, on the record, at any time

before sentencing; (2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this

rule is to make it clear that a challenge to the weight of the evidence must

be raised with the trial judge or it will be waived.”        Commonwealth v.

McCall, 911 A.2d 992, 997 (Pa. Super. 2006). Upon review, we conclude

that Appellant properly preserved his weight of the evidence claim by raising

it in his October 2, 2015 post-sentence motion. We thus turn to the merits

of Appellant’s claim.

      Appellant maintains that the trial court’s verdict “was based on pure

conjecture,” and “at no point did Officer Hill see Appellant sway or swerve

his car or do anything that would draw attention to Appellant’s vehicle.”

Appellant’s Brief at 13-15. Appellant concedes that he was “traveling in the

wrong lane,” but maintains, without further explanation or detail, that “dash

cam video,” which was not preserved or presented at the hearing, “would be

able to show what actually occurred the night of the incident.” Id.

      It is well established that this Court will not reverse a trial court’s

credibility determination absent the court’s abuse of discretion. In a bench

trial, as in a jury trial, “the trier of fact, while passing upon the credibility of

witnesses and the weight of the evidence produced, is free to believe all,


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part or none of the evidence.”          Commonwealth v. Zingarelli, 839 A.2d

1064, 1069 (Pa. Super. 2003), appeal denied, 856 A.2d 834 (Pa. 2004).

Additionally, “the evidence at trial need not preclude every possibility of

innocence, and the fact-finder is free to resolve any doubts regarding a

defendant’s guilt unless the evidence is so weak and inconclusive that as a

matter of law no probability of fact may be drawn from the combined

circumstances.”       Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa.

Super. 2006).

       Instantly, the trial court found the testimony of Officer Hill, as related

above, to be credible. Conversely, the trial court did not credit Appellant’s

version of events.3 The trial court stated that “in its role as fact finder, the

credible testimony of Officer Hill permitted a conclusion that Appellant drove

his vehicle while under the influence of alcohol at a time when he was

incapable of safe driving.”        Trial Court Opinion, 1/22/16, at 6-7.          Upon

review of the certified record, we agree. We are precluded from reweighing

the evidence and substituting our judgment for that of the fact finder.

Champney, supra at 408. Accordingly, we cannot conclude the verdict “is

so   contrary    to   the   evidence     as    to   shock   one’s sense   of   justice.”


____________________________________________


3
  Appellant testified that he “made the wrong turn,” and admitted to Officer
Hill that he “did have two beers”; however, Appellant also testified that he
was not “incapable” of safe driving, and specifically denied being “drunk” or
“tipsy.” N.T., 10/1/15, at 27-29.



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

omitted), appeal denied, 928 A.2d 1289 (Pa. 2007).

      We next address Appellant’s claim that there was insufficient evidence

to sustain his conviction for DUI.        Appellant contends the “testimony

adduced at trial fails to establish that Appellant was incapable of driving

safely,” and asserts his “driving failed to show any indication of impaired

driving or inability to operate his vehicle safely.” Appellant’s Brief at 16. We

disagree.

      Our standard of review in assessing a challenge to the sufficiency of

the evidence is well-settled.    “The standard we apply in reviewing the

sufficiency of the evidence is whether viewing all the evidence admitted at

trial in the light most favorable to the verdict winner, there is sufficient

evidence to enable the fact-finder to find every element of the crime beyond

a reasonable doubt.” Commonwealth v. O’Brien, 939 A.2d 912, 913 (Pa.

Super. 2007) (citation omitted). “Any doubts concerning an appellant’s guilt

[are] to be resolved by the trier of fact unless the evidence was so weak and

inconclusive that no probability of fact could be drawn therefrom.”

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007), appeal

denied, 947 A.2d 737 (Pa. 2008).       Moreover, “[t]he Commonwealth may

sustain its burden of proving every element of the crime beyond a

reasonable    doubt   by    means    of    wholly   circumstantial   evidence.”




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Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 2007) (citations

omitted).

      Upon review of the evidence in the light most favorable to the

Commonwealth as verdict winner, we agree with the trial court there was

sufficient evidence to establish that Appellant operated his vehicle after

consuming enough alcohol to render him incapable of safe driving.           Our

review of the record supports the trial court’s reasoning, which it explained

as follows.

                     In the instant case, Officer Hill observed
              Appellant make a left-hand turn from Northbound
              Cameron Street onto the eastbound lane of Maclay
              Street at 1:40 a.m., thus placing Appellant’s vehicle
              on the wrong side of the road and moving in the
              direction of possible oncoming traffic. As this was in
              violation of 75 Pa.C.S.A. § 3308(b), Officer Hill was
              well within his authority to effect a stop of
              Appellant’s vehicle.     Once pulled over, Appellant
              exited his vehicle and ignored multiple requests to
              return to his vehicle. While detaining [Appellant],
              Officer Hill detected the odor of alcohol and observed
              Appellant rocking back and forth and bracing himself
              against his vehicle.       Combined with Appellant’s
              refusal to participate in a field sobriety test, th[e trial
              c]ourt finds that the Commonwealth presented
              ample evidence that Appellant was operating his
              vehicle while under the influence of alcohol and,
              while operating the vehicle, he was incapable of
              doing so in a safe manner.

Trial Court Opinion, 1/22/16, at 5-6.

      Based on the foregoing, we find no merit to Appellant’s sufficiency

claim. Therefore, we affirm the October 1, 2015 judgment of sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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