J-S32036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ALLEN EUGENE BROWN                         :
                                               :
                       Appellant               :       No. 40 MDA 2018


           Appeal from the Judgment of Sentence September 5, 2017
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0000349-2017


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                   FILED JULY 05, 2018

        Appellant, Allen Eugene Brown, appeals from the judgment of sentence

imposed following his bench conviction of driving under the influence of alcohol

(DUI).1     Appellant challenges the weight of the evidence supporting his

conviction. We affirm.

        The trial court aptly set forth the factual history of this case as follows:

               On September 3, 2016, Appellant was on his way home from
        the Middletown VFW where he had three drinks over the course of
        several hours. At approximately 9:00 p.m. off duty Dauphin
        County Deputy Sheriff Paul Leggore was watching a football game
        at his home on Water Street when he heard what he believed to
        be a car accident. (See N.T. Trial, 9/05/17, at 4-5). He went
        outside and saw a vehicle had hit a parked car.         Leggore
        approached the vehicle in case he needed to render aid. (See id.
        at 5).


____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1) (general impairment).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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           Leggore testified that he and his neighbor approached the
     car together. (See id. at 6). He and his neighbor knocked on the
     window several times while Appellant and the passenger ignored
     him. (See id. at 7). Appellant then repeatedly put the car in
     drive and reverse but could not move the car—which appeared to
     have a broken axle. (See id.). Leggore admitted that he is not
     a mechanic and would not know if there were any mechanical
     issues with the car that may have played a role in the accident.
     (See id. at 7, 16).

           The passenger exited the vehicle and began walking away
     so Leggore followed him. (See id. at 8). Leggore warned the
     passenger that he was leaving the scene of an accident, but the
     passenger continued to ignore him. (See id. at 9). Leggore
     followed the passenger, until he noticed that the driver (Appellant)
     had also exited the vehicle. (See id. at 9-10). Leggore also
     warned Appellant that he was leaving the scene of an accident.
     (See id. at 10). Leggore approached Appellant and extended an
     arm towards him when Appellant turned and sw[u]ng with his left
     hand in a closed fist at Leggore. (See id.). Leggore grabbed his
     hand and the momentum took Appellant to the ground. (See id.
     at 10-11).

            Appellant asked Leggore to let him up at which point
     Leggore identified himself as an off-duty sheriff. (See id. at 11-
     12). Leggore refused to let Appellant up. (See id. at 12).
     Leggore testified that he could smell the odor of alcoholic
     beverage on Appellant when he was holding him down. He also
     testified that Appellant’s speech was slurred. (See id.). He
     seemed somewhat lethargic and the punch he threw was slow.
     (See id. at 12-13). Leggore believed that Appellant was incapable
     of safely operating a vehicle. (See id. at 13). Leggore has never
     arrested anyone for driving under the influence. (See id. at 18).

           Officer James Bennett of the Middletown Borough Police
     Department was the first officer on the scene. (See id. at 21-22).
     Upon arrival, he observed Deputy Leggore on top of Appellant,
     pinning his arms behind his back as [Appellant] lay on the ground.
     (See id. at 22). Bennett learned Appellant was under arrest so
     he handcuffed him, and noticed some abrasions on him. (See id.
     at 22-23). He also noticed an odor of alcohol and that Appellant
     was unsteady and stumbling a bit. (See id. at 23). While he was
     Mirandizing Appellant, Bennett noticed slurred speech. (See id.).


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           Bennett did not administer any standardized field sobriety
     tests as there was a crash involved and “we received blood pretty
     much automatically due to the crash.[”] (Id.). He also believed
     that Appellant was incapable of safe driving. (See id. at 23-24).

             Appellant testified on his own behalf. He indicated that he
     went to the VFW with friends to play darts and watch football. He
     had approximately three beers over the course of seven hours.
     (See id. at 33-34). He was safely navigating home from the VFW
     through one red light and several stop signs and picking up very
     little speed—he guessed five to seven miles per hour. (See id. at
     35). Suddenly, he heard a loud noise and his car veered right and
     hit a parked car. (See id. at 36). He was surprised and at first
     he just sat there; then he tried to reverse so as to be able to
     inspect any damage. (See id.).

           Appellant denied having a passenger in the car and said that
     the man Deputy Leggore said was a passenger was a random
     person who opened the door to ask if he was ok. As he was, the
     man went about his business. (See id. at 36-37). Appellant
     exited his vehicle to assess the damage when a man, the
     neighbor, came running and yelling at him “Don’t try to run. Don’t
     try to run.” (Id. at 37). [Appellant] had his hand out in an
     attempt at keeping the man away from him and in fear for his life.
     (See id. at 38). He looked over his shoulder and saw another
     man coming at him. That man, Deputy Leggore, picked him up
     and slammed him to the ground. (See id.). His face hit the
     ground and his arm was fractured in two places. (See id.). He
     indicated that he hit his head and saw blue. (See id. at 40).
     [Appellant] told Leggore that he thought his arm was broken and
     he asked him to ease up, but Leggore had his knee in the back of
     his neck and would not ease up. (See id. at 38).

            [Appellant] denied that he was leaving the scene of an
     accident as he had no warrants, nothing illegal in the car and valid
     registration and insurance. (See id. at 39). [Appellant] also
     testified that he did not refuse the blood test, but rather, he said
     he was exercising his right to an attorney and would give the blood
     once he was given an attorney. (See id. at 41).

           Following the accident, Appellant had his car towed to a
     mechanic by the same towing company used by the Middletown
     Police Borough Department. He received a receipt indicating that


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       the cause of the accident was a broken control arm. (See id. at
       43).

(Trial Court Opinion, 2/14/18, at 1-4) (record citation formatting provided).

       The trial court found Appellant guilty of DUI on September 5, 2017,

following a bench trial. It sentenced Appellant on that same date to a term of

six months of probation, and a $300.00 fine. The court denied Appellant’s

timely post-sentence motion challenging the weight of the evidence on

December 22, 2017. This timely appeal followed.2

       Appellant presents one question for our review:

       Whether the trial court erred in denying Appellant’s post sentence
       motion challenging the weight of the evidence where the
       Commonwealth failed to prove beyond a reasonable doubt that
       Appellant was incapable of safe driving and that his accident,
       slurred speech and unsteady gait were actually caused by alcohol
       impairment as opposed to Appellant’s injuries?

(Appellant’s Brief, at 5) (underline and some capitalization omitted).

       Appellant argues that his demeanor and physical signs of intoxication,

including difficulty speaking and walking, were attributable to the personal

injuries he suffered when Deputy Leggore tackled him to the ground, and not

to alcohol consumption.        (See id. at 11, 13-15).   He also maintains that

mechanical issues affected his ability to steer his vehicle and caused the

accident, as evidenced by the note prepared by his mechanic. (See id. at 11,

15). This issue merits no relief.


____________________________________________


2 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on January 30, 2018. The court entered an opinion
on February 14, 2018. See Pa.R.A.P. 1925.

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           At the outset, we note that the weight attributed to the
     evidence is a matter exclusively for the fact finder, who is free to
     believe all, part, or none of the evidence and to determine the
     credibility of the witnesses. The grant of a new trial is not
     warranted because of a mere conflict in the testimony and must
     have a stronger foundation than a reassessment of the credibility
     of witnesses. Rather, the role of the trial judge is to determine
     that, notwithstanding all of the facts, certain facts are so clearly
     of greater weight, that to ignore them or to give them equal
     weight with all of the facts is to deny justice.

           An appellate court’s purview:

           is extremely limited and is confined to whether the
           trial court abused its discretion in finding that the . . .
           verdict did not shock its conscience. Thus, appellate
           review of a weight claim consists of a review of the
           trial court’s exercise of discretion, not a review of the
           underlying question of whether the verdict is against
           the weight of the evidence.

            An appellate court may not reverse a verdict unless it is so
     contrary to the evidence as to shock one’s sense of justice. [T]he
     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. Hicks, 151 A.3d 216, 223 (Pa. Super. 2016), appeal

denied, 168 A.3d 1287 (Pa. 2017) (citations and quotation marks omitted).

     Here, after considering all of the evidence as factfinder, the trial court

found that there was ample evidence that Appellant was driving under the

influence of alcohol. (See Trial Ct. Op., at 5). Upon review, we agree.

     Specifically, the record reflects that Appellant exhibited several signs of

intoxication, including emanating an odor of alcohol, slurred speech, and an

unsteady gait.    (See N.T. Trial, at 12, 23).           Appellant was initially

unresponsive when Deputy Leggore approached his vehicle, and he repeatedly

attempted to remove his car and then himself from the scene of the accident.

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(See id. at 7-8, 10). Appellant admitted to drinking three beers during the

evening, and he threw a lethargic punch at Deputy Leggore. (See id. at 10,

12-13, 34). Both Officer Bennett and Deputy Leggore testified that, based on

their observations, they believed that Appellant was incapable of safely driving

his vehicle. (See id. at 12-13, 23-24).

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion in denying Appellant’s weight claim. See Hicks, supra at 223.

Therefore, Appellant’s sole issue on appeal does not merit relief. Accordingly,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2018




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