J-S22025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY WEST, JR.                          :
                                               :
                       Appellant               :   No. 2077 MDA 2019

        Appeal from the Judgment of Sentence Entered August 21, 2019
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0000977-2017


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 08, 2020

        Anthony West, Jr. (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of driving under the influence (DUI) of a

controlled substance and DUI combination of a controlled substance and

alcohol, and the trial court convicted him of operating a motor vehicle while

his driving privileges were suspended.1 Upon review, we affirm.

        The trial court summarized the procedural history as follows:

        This matter arose on February 4, 2017, when [Appellant] was
        arrested and charged at Count 1 with DUI - Combination of
        Controlled Substance and Alcohol, at Count 2 with DUI -
        Controlled Substance Schedule 1, and at Count 3 with Operating
        a Motor Vehicle - Privileges Suspended. On April 26, 2018, a
        bench warrant was issued for Appellant’s apprehension after he
        failed to appear for Call of the List. On September 24, 2018,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. §§ 3802 and 1543.
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       Appellant was detained pursuant to the bench warrant issued and
       Appellant’s bail was then increased. . . .

              On July 23, 2019, a trial by jury was had. [The jury and
       trial court entered their verdicts, and the trial court sentenced
       Appellant on August 21, 2019]. On August 28, 2019, Appellant
       filed a Post - Sentence Motion. On September 5, 2019, by order
       of this [c]ourt, a hearing on Appellant’s Motion was scheduled.
       The hearing was ultimately cancelled, as communications between
       the [c]ourt, the Commonwealth, and Appellant established that
       the Commonwealth did not intend to file a brief and Appellant
       intended to rest on his Post-Sentence Motion filing. On November
       21, 2019, this [c]ourt denied Appellant’s Post-Sentence Motion.

             On December 19, 2019, Appellant filed a notice of appeal to
       the Superior Court of Pennsylvania and this [c]ourt issued an
       order, pursuant to Pa.R.A.P. 1925, directing Appellant to submit
       his Concise Statement of Matters Complained Of by January 9,
       2020. On December 30, 2019, Appellant submitted his Concise
       Statement, citing one issue.

Trial Court Opinion, 1/20/20, at 1-2 (footnotes omitted).2

       Appellant presents the following issue on appeal:

       1) Did the trial court err by finding that the jury’s verdicts were
       not against the weight of the evidence?

Appellant’s Brief at 4.

       Appellant argues that the jury convicted him of DUI, contrary to the

weight of the evidence, because “the [arresting police] officer never saw

Appellant driving” and “could not say whether Appellant was driving or there

was another occupant of the car.” Appellant’s Brief at 8-9. Appellant also

____________________________________________


2In its Rule 1925(a) opinion, the trial court stated that “the issue raised by
Appellant on appeal mimics the claim raised in [his] Post-Sentence Motion.
We accordingly direct the Superior Court to the attached Opinion [dated
November 21, 2019] denying [Appellant’s] Post-Sentence Motion.” Trial Court
Opinion, 1/20/20, at 3.

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argues that the verdicts were against the weight of the evidence because “the

neighbor who said they saw [Appellant] get out of the vehicle was not

credible.” Id. at 9. Appellant states that the neighbor, Mr. Clair O’Donnell,

“never saw his face,” where he viewed the driver from a distance of 55 feet,

exit the car in the dark, and Mr. O’Donnell specifically testified that he never

saw the person’s face. Id. Finally, Appellant cites his own trial testimony that

he did not drive his car that night, and the testimony of William Brooks, who

testified that he, Mr. Brooks, drove the car. Id. at 10.

      We begin our analysis with our standard of review:


      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because 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 [trial] court’s conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). The trial court abuses

its discretion “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.”   Horne, 89 A.3d at 285-86 (citation

omitted). For an appellant to prevail on a weight claim, “the evidence must


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be so tenuous, vague and uncertain that the verdict shocks the conscience of

the court.” See Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super.

2003) (citation omitted).

      Appellant was convicted of DUI and driving while his privileges were

suspended, which obviously require that Appellant was driving.           See 75

Pa.C.S.A. §§ 3802 and 1543. The trial court observed:

      [Appellant] claims that the Commonwealth’s assertion that he was
      the driver of his own vehicle on February 4, 2017 is against the
      weight of the evidence. Because one element of each of the []
      offenses for which he was convicted is that he was driving a
      vehicle, [Appellant] claims he should be given a new trial.

Trial Court Opinion, 11/21/19, at 3. The trial court stated that Mr. O’Donnell

testified to seeing only one person exit the BMW owned by Appellant. Id. The

trial court also referenced the testimony of Chambersburg Police Officer Cole

Baker, who testified that he was only going to cite Appellant for driving with

suspended privileges until he smelled alcohol on Appellant and asked him to

perform field sobriety tests. Id. at 3-4.

      Our review supports the trial court’s determination that Appellant’s

convictions are not against the weight of the evidence. Mr. O’Donnell testified

that although he could not identify who exited Appellant’s car, he only saw

one individual get out of the vehicle. N.T., 7/23/19, at 18. The police officer,

Cole Baker, testified to driving by Appellant’s car and recognizing it as a “black

BMW with gold rims.” Id. at 31. Because Officer Baker recognized Appellant’s

car and knew that Appellant’s license was suspended, he followed the BMW


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into an alley. Id. After turning into the alley, Officer Baker saw that the dome

light of the car was on but no one was in the car; however, he saw someone

walking away from the car.           Id. at 33.     As he got closer, Officer Baker

“immediately recognized” Appellant. Id. He testified:

       Nobody else was in that immediate area at the time. . . .
       [Appellant] was confrontational. I was just going to write him a
       citation and get him on his way. I filled out the citation and was
       going to get out—I got out of my vehicle and gave him a copy of
       the citation. When I had gotten out of my vehicle and made
       contact with him to give him a copy of the citation, I could smell
       alcohol . . . from his person. His eyes were glassy and bloodshot.
       . . . He did make the admission that he was at least around alcohol
       at his friend’s house.

Id. at 33-34.

       Officer Baker administered field sobriety tests (including the walk and

turn, convergence, Romberg balance, and modified Romberg3), all of which

indicated that Appellant was impaired.           Id. at 35-38. The Commonwealth

played and introduced into evidence the motor vehicle recording (MVR) of

Officer Baker’s interaction with Appellant. Id. at 43; Commonwealth Exhibit

2.     After   Officer   Baker    arrested     Appellant,   he   transported   him   to

Chambersburg Hospital for a blood test.             Appellant did not challenge the

results of the test.


____________________________________________


3Officer Baker testified that during the modified Romberg test, he looks at the
person’s tongue, which shows “after you recently smoked marijuana, you get
a white pasty film over your tongue. It coats your entire tongue. Over the
white film is a kind of greenish tint . . . [Appellant] had that on his tongue
when I had him stick out his tongue.” N.T., 7/23/19, at 39.



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       Appellant and William Brooks testified in Appellant’s defense.        Mr.

Brooks testified that he had been friends with Appellant “for eight or nine

years,” and was with Appellant on the night of February 4, 2017.           N.T.,

7/23/19, at 84-85.        Mr. Brooks said he drove Appellant’s car that night

because he had a valid license and Appellant did not.4 Id. at 86. Mr. Brooks

testified that he drove to and parked in the alley because he “live[s] right

there.” Id. at 87. Mr. Brooks stated that he then went to his house and

Appellant “went about his way.” Id.

       Appellant testified that on the evening of February 4, 2017, he was with

Mr. Brooks, and drank less than one beer when the two men drove to get

cigarettes. Id. at 98.       Appellant stated that Mr. Brooks was driving when

Appellant received a call from his girlfriend, which caused Appellant to tell Mr.

Brooks to stop the car in the alley. Id. at 99. Appellant testified that his

pregnant girlfriend was having stomach pains, and he told Mr. Brooks to park

in the alley so Appellant could “run to my house.” Id. at 101. Appellant said,

“He went his way, I went mine.” Id.

       This evidence does not support Appellant’s weight claim.       This Court

may not substitute our judgment for that of the factfinder — whether the jury

or the trial court — because it is the province of the factfinder to assess the

credibility of the witnesses. See Commonwealth v. DeJesus, 860 A.2d 102


____________________________________________


4When called on re-direct, Officer Baker testified that on February 4, 2017,
Mr. Brooks did not have a valid driver’s license. N.T., 7/23/19, at 107-08.

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(Pa. 2004); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an

appellate court is barred from substituting its judgment for that of the finder

of fact.”). “When the challenge to the weight of the evidence is predicated on

the credibility of trial testimony, our review of the trial court’s decision is

extremely limited.   Generally, unless the evidence is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, these

types of claims are not cognizable on appellate review.” Commonwealth v.

Fortson, 165 A.3d 10, 16 (Pa. Super. 2017), citing Commonwealth v.

Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004).

      In sum, there is no merit to Appellant’s self-serving weight claim

assailing the credibility of the witnesses. The testimony of Mr. O’Donnell and

Officer Baker supports the determinations of the jury and the trial court that

Appellant drove his car on February 4, 2017, and was guilty of DUI and

operating a motor vehicle while his driving privileges were suspended. The

verdicts do not shock one’s sense of justice, and therefore, the trial court did

not commit an abuse of discretion in denying Appellant’s weight claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/08/2020

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