J. A16018/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
THOMAS JAMES FRAUENS,                    :         No. 747 WDA 2016
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, April 21, 2016,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0016336-2014


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 7, 2017

        Thomas James Frauens appeals1 from the April 21, 2016 judgment of

sentence imposing a $475 fine after the trial court found him guilty of the

summary traffic offenses of reckless driving, careless driving, and failure to

drive at a safe speed.2     After careful review, we affirm the judgment of

sentence.




* Retired Senior Judge assigned to the Superior Court.
1
   Appellant purports to appeal from the May 5, 2016 order denying his
post-sentence motion. In a criminal action, an appeal properly lies from the
judgment of sentence made final by the denial of post-sentence motions.
See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa.Super.
2007) (noting that an appeal from an order denying post-sentence motions
is procedurally improper because a direct appeal in a criminal proceeding lies
from judgment of sentence). Accordingly, we have corrected the caption.
2
    75 Pa.C.S.A. §§ 3736, 3714, and 3361, respectively.
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      The evidence adduced at trial established that on the afternoon of

September 22, 2014, appellant, a 13-year veteran of the Port Authority

Transit (“PAT”), was driving his PAT bus side-by-side with another bus

driven   by    Juliann   Maier   (hereinafter,   “co-defendant”)   on   Interstate

Route 279. Several witnesses observed each bus traveling at a considerable

rate of speed and veering to the right and left in their respective lanes.

Ultimately, the two buses made contact, causing co-defendant’s bus to

careen off the roadway and go over a hillside.          Appellant acknowledged

leaving the scene and continuing his route following the crash, testifying that

he believed that he had not been in an accident because he never felt the

two buses make contact.          (See notes of testimony, 4/11-21/16 at 44,

47-52, 63-64, 72-76, 151-158, 445, 452-454.)

      On      November    12,    2014,    appellant   was   charged     with   the

aforementioned summary traffic offenses as well as four counts of recklessly

endangering another person (“REAP”), accidents involving death or personal

injury, accidents involving damage to attended vehicle or property, failure to

notify police of an accident, and failure to give information and render aid. 3

Appellant waived his right to a jury and proceeded to a bench trial alongside

co-defendant on April 11, 2016. At trial, the Commonwealth argued that the

bus accident occurred because appellant and co-defendant were racing.



3
  18 Pa.C.S.A. § 2705 and 75 Pa.C.S.A. §§ 3742, 3743, 3746, 3744,
respectively.


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Appellant, in turn, maintained that the accident resulted from a mechanical

failure in co-defendant’s bus.     On April 21, 2016, the trial court found

appellant guilty of the summary offenses of reckless driving, careless

driving, and failure to drive at a safe speed and sentenced him to pay fines

totaling $475. Appellant was found not guilty of the remaining charges.4

      On May 2, 2016, appellant filed a post-sentence motion challenging

the weight of the evidence, which was denied by the trial court on May 5,

2016. This timely appeal followed on May 24, 2016. On June 3, 2016, the

trial court directed appellant to file a concise statement of errors complained

of on appeal, in accordance with Pa.R.A.P. 1925(b), by August 3, 2016.

Appellant filed a timely Rule 1925(b) statement on August 2, 2016, and the

trial court filed its Rule 1925(a) opinion on October 4, 2016.

      On appeal, appellant raises the following issues for our review:

            I.    Whether the non-jury verdict by the [trial
                  c]ourt convicting [a]ppellant of one count of
                  disregarding traffic lane, 75 Pa.C.S.[A.]
                  § 3309(1), was against the weight of the
                  evidence and whether the verdict on this count
                  was legally insufficient based upon the [trial
                  c]ourt’s factual     finding supporting that
                  verdict[?]

            II.   Whether the [trial c]ourt’s verdict of guilt on
                  one count of driving at safe speed,


4
  The record reflects that co-defendant was found guilty of the summary
offenses of reckless driving, careless driving, failure to drive at a safe speed,
and disregarding a traffic lane, 75 Pa.C.S.A. § 3309. The trial court found
co-defendant not guilty of accidents involving overturned vehicles,
75 Pa.C.S.A. § 3716; and four counts of REAP.


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                   75 Pa.C.S.[A.] § 3361, was against the weight
                   of the evidence[?]

            III.   Whether the [trial c]ourt’s verdict of guilt on
                   one count of careless driving, 75 Pa.C.S.[A.]
                   § 3714(a), was against the weight of the
                   evidence[?]

            IV.    Whether the [trial c]ourt’s verdict of guilt on
                   one count of reckless driving, 75 Pa.C.S.[A.]
                   § 3736(a), was against the weight of the
                   evidence[?]

Appellant’s brief at 5.

      Preliminarily, we note that any challenge appellant makes with respect

to 75 Pa.C.S.A. § 3309 is moot, as the record reflects that appellant was

never charged nor convicted of this offense. Additionally, appellant’s brief,

in large part, conflates the principles of weight and sufficiency of the

evidence. Appellant raises challenges to the weight of the evidence in the

“Statement of the Questions Involved” and “Summary of the Argument”

sections in his brief, but the majority of the brief’s “Argument” section

addresses his claim that there was insufficient evidence to sustain the

summary traffic convictions. (See appellant’s brief at 5, 12-21.) Our review

of the record, however, reveals that appellant has waived any challenge to

the sufficiency of the evidence by failing to include it in his Rule 1925(b)

statement. (See “Concise Statement of Matters Complained of on Appeal,”

8/2/16.)   This court has long recognized that “[w]hen an appellant fails

adequately to identify in a concise manner the issues sought to be pursued

on appeal, the trial court is impeded in its preparation of a legal analysis


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which is pertinent to those issues.” Commonwealth v. Freeman, 128 A.3d

1231, 1247 (Pa.Super. 2015) (internal citations and quotation marks

omitted). “Any issues not raised in a Pa.R.A.P. 1925(b) statement will be

deemed waived.”       Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)

(citation omitted).

      Moreover, to the extent that appellant’s claims are construed as

challenges to the weight of the evidence, we find that they are devoid of

merit. “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Galvin,

985 A.2d 783, 793 (Pa. 2009) (citation omitted), cert. denied, 559 U.S.

1051 (2010).

            [W]here the trial court has ruled on the weight claim
            below, an appellate court’s role is not to consider the
            underlying question of whether the verdict is against
            the weight of the evidence. Rather, appellate review
            is limited to whether the trial court palpably abused
            its discretion in ruling on the weight claim.

Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation

omitted).

      Our supreme court has long recognized that,

            [b]ecause the trial judge has had the opportunity to
            hear and see the evidence presented, an appellate
            court will give the gravest consideration to the
            findings and reasons advanced by the trial judge
            when reviewing a trial court’s determination that the
            verdict is against the weight of the evidence. One of
            the least assailable reasons for granting or denying a
            new trial is the lower court’s conviction that the
            verdict was or was not against the weight of the


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             evidence and that a new trial should be granted in
             the interest of justice.

             This does not mean that the exercise of discretion by
             the trial court in granting or denying a motion for a
             new trial based on a challenge to the weight of the
             evidence is unfettered. In describing the limits of a
             trial court’s discretion, we have explained[,] [t]he
             term “discretion” imports the exercise of judgment,
             wisdom and skill so as to reach a dispassionate
             conclusion within the framework of the law, and is
             not exercised for the purpose of giving effect to the
             will of the judge. Discretion must be exercised on
             the foundation of reason, as opposed to prejudice,
             personal motivations, caprice or arbitrary actions.
             Discretion is abused where the course pursued
             represents not merely an error of judgment, but
             where the judgment is manifestly unreasonable or
             where the law is not applied or where the record
             shows that the action is a result of partiality,
             prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and

emphasis omitted).

       Instantly, we discern no abuse of discretion on the part of the trial

court in rejecting appellant’s weight claim.    As noted, the record in this

matter reveals that multiple witnesses observed appellant’s PAT bus

traveling in a manner consistent with racing.        The testimony at trial

established that appellant’s bus was observed traveling at a considerable

rate of speed and veering into the lane of co-defendant’s bus. The evidence

at trial further established that the two buses made contact with one

another, causing co-defendant’s bus to leave the roadway and go over a

hillside.   (See notes of testimony, 4/11-21/16 at 44-45, 47-54, 63-70,



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72-76, and 80-81.) “[T]he trier of fact while passing upon the credibility of

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

part or none of the evidence.” Commonwealth v. Andrulewicz, 911 A.2d

162, 165 (Pa.Super. 2006) (citation omitted), appeal denied, 926 A.2d 972

(Pa. 2007). Here, the Honorable Jeffrey A. Manning, sitting as fact-finder,

concluded that the video and expert evidence presented at trial and the

eyewitness testimony “weighed in favor of a guilty verdict on the three

summary traffic offenses,” and elected not to believe appellant’s version of

the events.    (Trial court opinion, 10/4/16 at 5.)   We are precluded from

reweighing the evidence and substituting our judgment for that of the

fact-finder. Clay, 64 A.3d at 1055. Accordingly, we affirm the trial court’s

April 21, 2016 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/2017




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