J-S25031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MARIELIZABETH CROCKETT                     :
                                               :
                       Appellant               :      No. 1851 MDA 2019

        Appeal from the Judgment of Sentence Entered October 30, 2019
                  In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-SA-0000278-2019


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.:                                   FILED JUNE 30, 2020

        Appellant, Marielizabeth Crockett, appeals from the judgment of

sentence entered in the York County Court of Common Pleas, following her

bench trial conviction for driving with a suspended license.1 We affirm.

        The trial court opinion set forth the relevant facts and procedural history

of this appeal as follows:

           On June 11, 2019, [Appellant] was at the home of Terri
           Hake…. [Appellant] was visiting her son, Hake’s grandson.
           [Appellant] left Hake’s home abruptly after an argument
           about the ownership of a sign in Hake’s home. Hake
           watched [Appellant] go to her car and pull away.

           [Appellant’s] car was parked in front of Hake’s home.
           [Appellant’s] car was parked so that the passenger side of
           the vehicle was visible to Hake. Hake testified that she had
           a clear view of [the] car. Hake testified that she was able
           to see that [Appellant] “went to the other side of the vehicle,
____________________________________________


1   75 Pa.C.S.A. § 1543(b)(1)(i).
J-S25031-20


       and pulled away.” As [Appellant] was not standing in the
       street when the vehicle left, she must have gotten into the
       vehicle on the driver’s side. Aside from [Appellant’s] son
       and Terri Hake, there were no other people present during
       the visitation. Hake testified that she did not see anybody
       else in the vehicle as it was pulling away.

       Hake called the police after [Appellant] left because of the
       argument about the sign. Officer Tanner Tyson of Northern
       York County Regional Police Department responded to
       Hake’s call. Officer Tyson conducted a routine license and
       warrant search of [Appellant], at which point he found out
       that [Appellant’s] license was suspended; when asked by
       Officer Tyson, Hake was unaware of the license suspension.
       After Officer Tyson discovered the license suspension, he
       confirmed with Hake that she had observed [Appellant]
       enter the vehicle on the driver’s side and the vehicle leave.

       Officer Tyson followed up with [Appellant] about the incident
       at Hake’s home. Officer Tyson testified that in response to
       his question about how she had gotten to work, [Appellant]
       “she kind of, you know, paused, stuttered and said that her
       boyfriend drove her.” [Appellant] declined to identify her
       boyfriend to Officer Tyson. Officer Tyson was unable to
       corroborate [Appellant’s] version of events with Derrick
       McLain as she refused to identify him at the time.

       Derrick McLain, [Appellant’s] boyfriend, testified that he was
       the one who was driving on June 11, 2019. McLain also
       testified that [Appellant] got into the vehicle in the
       passenger side.

                                *    *    *

       On June 14, 2019, Officer Tyson filed a traffic citation for
       Driving While BAC .02 or Greater While License Suspended.
       A summary trial was held on August 19, 2019, … at the
       conclusion of which [Appellant] was found guilty of the
       offense. [Appellant] was sentenced to 60 days of house
       arrest.

       On September 9, 2019, [Appellant] filed a Summary Appeal
       with the York County Court of Common Pleas. … A
       Summary Conviction Appeal Hearing was held on October

                                    -2-
J-S25031-20


          30, 2019…. At the Hearing, the Commonwealth amended
          the charge from 1543(b)(1.1) to 1543(b)(1)[(i)], Driving
          While Operating Privileges Were Suspended—DUI Related,
          as there was no evidence that [Appellant] was intoxicated
          during this incident.

          At the conclusion of the Hearing, [Appellant] was found
          guilty of Driving While Operating Privileges Were
          Suspended—DUI Related. The sentence of 60 days of house
          arrest was reimposed.

(Trial Court Opinion, filed December 11, 2019, at 1-4) (internal footnotes

omitted).

       Appellant timely filed a notice of appeal on November 12, 2019. On

November 18, 2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant timely filed

her Rule 1925(b) statement on December 9, 2019.

       Appellant now raises one issue for our review:

          Did the trial court abuse its discretion where the weight of
          the evidence was against the notion that [Appellant]
          entered the driver’s seat and drove away from the witness’s
          home while her license was suspended?

(Appellant’s Brief at 4).2

____________________________________________


2 “Ordinarily, a challenge to the weight of the evidence is waived unless it is
presented in the first instance to the trial court. Preservation of this type of
claim normally takes the form of a post-sentence motion. However, a
defendant convicted of a summary offense is precluded from filing any post-
sentence motions.” Commonwealth v. Dougherty, 679 A.2d 779, 784
(Pa.Super. 1996). See also Pa.R.Crim.P. 720(D) (stating there shall be no
post-sentence motion in summary case appeals following trial de novo). Here,
Appellant did not have the opportunity to file a post-sentence motion following
the trial court’s de novo review of her summary appeal. Consequently, we



                                           -3-
J-S25031-20


       On appeal, Appellant asserts the trial court should have credited Mr.

McLain’s testimony that he was the driver of the vehicle that departed from

Ms. Hake’s residence. In support of this assertion, Appellant emphasizes the

court’s statement that it did not find either witness lacking credibility.3

Appellant also insists the trial testimony demonstrated that Ms. Hake could

not fully see the vehicle. Further, Appellant claims Ms. Hake had an ulterior

motive to lie. Specifically, Appellant notes she had been in a relationship with

Ms. Hake’s son, and they had a child together. Appellant contends Ms. Hake’s

son is now incarcerated, and Ms. Hake stood to gain custody of the child if

Appellant was also incarcerated.               Under these circumstances, Appellant

concludes the verdict was against the weight of the evidence, and this Court

must vacate her conviction. We disagree.

       Our standard of review regarding challenges to the weight of the

evidence is as follows:

          A claim alleging the verdict was against the weight of the
          evidence is addressed to the discretion of the trial court.
          Accordingly, an appellate court reviews the exercise of the
          trial court’s discretion; it does not answer for itself whether
____________________________________________


decline to find Appellant’s issue waived on this basis. See Dougherty, supra
at 784-85 (declining to find weight issue waived on appeal following de novo
review of summary offense; noting it would be unjust to deprive appellant of
right to raise weight issue on grounds he failed to file motion he was not
entitled to file; moreover, trial court explicitly addressed credibility and weight
of evidence in its written opinion).

3 Prior to announcing the verdict, the court stated, “I don’t find anybody
particularly lacking in credibility in this case, … neither Ms. Hake nor Mr.
McLain.” (N.T. Trial, 10/30/19, at 49).

                                           -4-
J-S25031-20


         the verdict was against the weight of the evidence. It is well
         settled that the [fact-finder] is free to believe all, part, or
         none of the evidence and to determine the credibility of the
         witnesses, and a new trial based on a weight of the evidence
         claim is only warranted where the [fact-finder’s] verdict is
         so contrary to the evidence that it shocks one’s sense of
         justice. In determining whether this standard has been met,
         appellate review is limited to whether the trial judge’s
         discretion was properly exercised, and relief will only be
         granted where facts and reference of record disclose a
         palpable abuse of discretion.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted).

      We have further explained:

         A new trial should not be granted because of a mere conflict
         in the testimony or because the judge on the same facts
         would have arrived at a different conclusion. Rather, the
         role of the trial court is to determine that notwithstanding
         all the evidence, certain facts are so clearly of greater
         weight that to ignore them, or to give them equal weight
         with all the facts, is to deny justice. A motion for a new trial
         on the grounds that the verdict is contrary to the weight of
         the evidence concedes that there is sufficient evidence to
         sustain the verdict; thus the trial court is under no obligation
         to view the evidence in the light most favorable to the
         verdict winner.

Id. (citation omitted).

      Additionally, the Motor Vehicle Code provides the following definition for

driving while operating privilege is suspended or revoked:

         §     1543.   Driving while         operating    privilege   is
                 suspended or revoked

                                   *    *    *

         (b)       Certain offenses.—


                                       -5-
J-S25031-20


            (1)     The following shall apply:

                    (i)    A person who drives a motor vehicle on a
                 highway or trafficway of this Commonwealth at a time
                 when the person’s operating privilege is suspended or
                 revoked as a condition of acceptance of Accelerated
                 Rehabilitative Disposition for a violation of section
                 3802 (relating to driving under influence of alcohol or
                 controlled substance) or the former section 3731,
                 because of a violation of section 1547(b)(1) (relating
                 to suspension for refusal) or 3802 or former section
                 3731 or is suspended under section 1581 (relating to
                 Driver’s License Compact) for an offense substantially
                 similar to a violation of section 3802 or former section
                 3731 shall, upon a first conviction, be guilty of a
                 summary offense and shall be sentenced to pay a fine
                 of $500 and to undergo imprisonment for a period of
                 not less than 60 days nor more than 90 days.

75 Pa.C.S.A. § 1543(b)(1).

      Instantly, Mr. McLain testified that he drove Appellant to Ms. Hake’s

residence on the date in question, and he waited in the vehicle while Appellant

was inside. (See N.T. Trial at 32). Mr. McLain claimed that Appellant exited

the residence, re-entered the passenger side of the vehicle, and he drove

them away. (Id. at 33). In comparison, Ms. Hake testified that she watched

Appellant leave the residence, walk around the vehicle to the driver’s side,

enter, and drive away.      (Id. at 6).   Ms. Hake saw no one else inside the

vehicle, and she made her observations while looking out her garage window.

(Id. at 6, 9).

      Officer Tyson testified that he responded to a call regarding the incident

at Ms. Hake’s residence. (Id. at 17). Once he arrived at the scene, Ms. Hake

told Officer Tyson that she saw Appellant drive away. (Id. at 19). Officer

                                       -6-
J-S25031-20


Tyson conducted a routine license and warrant search and discovered that

Appellant’s license was suspended. (Id. at 18). Officer Tyson subsequently

contacted Appellant by telephone.     (Id. at 19).   During this conversation,

Appellant paused and stuttered when the officer asked the circumstances of

her departure from Ms. Hake’s residence. (Id.) Although Appellant claimed

her boyfriend drove her to and from Ms. Hake’s home, she would not provide

her boyfriend’s name. (Id. at 20).

      In light of the conflicting testimony, the trial court evaluated the

credibility of the witnesses. Ultimately, the court found the testimony of Ms.

Hake and Officer Tyson more credible than the testimony of Mr. McLain. (See

Trial Court Opinion at 9).    Following our review, we discern no abuse of

discretion in the court’s decision regarding the weight it placed on the evidence

presented at trial. See Landis, supra. Accordingly, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/30/2020




                                      -7-
