J-S62009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

RICHARD FRANKLIN KROH

                         Appellant                    No. 166 MDA 2016


          Appeal from the Judgment of Sentence December 14, 2015
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005974-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 19, 2016

      Richard Franklin Kroh (“Appellant”) appeals from the judgment of

sentence entered in the Berks County Court of Common Pleas following his

bench trial convictions for driving while operating privilege is suspended or

revoked in violation of 75 Pa.C.S. §§ 1543(b)(1.1)(iii) and 1543(b)(1). We

affirm.

      In its opinion, the trial court accurately and fully set forth the relevant

facts and procedural history of this case; therefore, we have no reason to

restate them.   See Pa.R.A.P. 1925(a) Opinion, filed April 4, 2016, at 1-3

(“Opinion”). Appellant raises the following issues for our review:

          WHETHER THE EVIDENCE PRESENTED IS INSUFFICIENT
          TO SUSTAIN A FINDING OF GUILT AGAINST THE
          APPELLANT FOR THE CRIME OF DRIVING WHILE
          OPERATING PRIVILEGE IS SUSPENDED FOLLOWING A
          [DRIVING UNDER THE INFLUENCE (“DUI”) OFFENSE],
          BECAUSE THE COMMONWEALTH FAILED TO PROVE A
J-S62009-16


         REASONABLE DOUBT THAT THE APPELLANT WAS
         DRIVING, OPERATING, OR IN ACTUAL PHYSICAL CONTROL
         OF THE MOVEMENT OF THE MOTOR VEHICLE WHILE
         INTOXICATED?

         WHETHER THE EVIDENCE PRESENTED IS INSUFFICIENT
         TO SUSTAIN A FINDING OF GUILT AGAINST THE
         APPELLANT FOR THE CRIME OF DRIVING WHILE
         OPERATING PRIVILEGE IS SUSPENDED FOLLOWING A
         DUI, BECAUSE THE COMMONWEALTH FAILED TO PROVE
         BEYOND A REASONABLE DOUBT THAT PROBABLE CAUSE
         EXISTED FOR A VIOLATION OF A [DUI] OFFENSE, WHICH
         IS NECESSARY FOR A REFUSAL OF CHEMICAL BLOOD
         TESTING UNDER PENNSYLVANIA’S IMPLIED CONSENT LAW
         TO BE PUNISHABLE?

         WHETHER THE VERDICT OF GUILT AGAINST THE
         APPELLANT FOR DRIVING WHILE OPERATING PRIVILEGE
         SUSPENDED FOLLOWING DUI IS CONTRARY TO THE
         WEIGHT OF THE EVIDENCE PRESENTED, WHERE THE
         TESTIMONY PROVIDED SHOWED A LACK OF REASONABLE
         GROUNDS TO FIND THE APPELLANT WAS UNDER THE
         INFLUENCE OF A CONTROLLED SUBSTANCE OR THAT HIS
         BLOOD ALCOHOL CONTENT WAS .02% OR GREATER AT
         THE TIME OF DRIVING, OPERATING, OR BEING IN ACTUAL
         PHYSICAL CONTROL OF THE MOVEMENT OF THE MOTOR
         VEHICLE?

Appellant’s Brief, at 6-7.

      Appellant challenges the sufficiency and the weight of the evidence

against him for his aforementioned convictions. Specifically, he claims that,

because the trial court dismissed the DUI charge against him after a pre-trial

hearing, the evidence was insufficient to support his convictions for driving

while operating privilege is revoked, and that the court’s verdict was against

the weight of the evidence. We disagree.




                                    -2-
J-S62009-16


      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         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. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

      Appellant was convicted under the following statute:

         § 1543. Driving while                operating   privilege   is
         suspended or revoked

                                    *    *     *

         (b) Certain offenses.--

         (1) A person who drives a motor vehicle on a highway or
         trafficway of this Commonwealth at a time when the

                                        -3-
J-S62009-16


        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 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.

        (1.1)(i) A person who has an amount of alcohol by weight
        in his blood that is equal to or greater than .02% at the
        time of testing or who at the time of testing has in his
        blood any amount of a Schedule I or nonprescribed
        Schedule II or III controlled substance, as defined in the
        act of April 14, 1972 (P.L. 233, No. 64), known as The
        Controlled Substance, Drug, Device and Cosmetic Act, or
        its metabolite or who refuses testing of blood or
        breath and who drives a motor vehicle on any 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 or former section
        3731 or because of a violation of section 1547(b)(1) or
        3802 or former section 3731 or is suspended under section
        1581 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 $1,000 and to undergo
        imprisonment for a period of not less than 90 days.

75 Pa.C.S. § 1543 (emphasis added).

     We review challenges to the weight of the evidence as follows:

          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. Thus, we may

                                    -4-
J-S62009-16


            only reverse the…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 741 A.2d 666, 672–73
         (Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42
         (U.S.2000)]. Moreover, where 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. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal

denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted).

      This Court has recognized that “a true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

questions   which     evidence   is   to    be   believed.”    Commonwealth v.

Thompson, 106 A.3d 742, 758 (Pa.Super.2014). Accordingly, “[o]ne 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

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

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013).                    A trial judge

should not grant a new trial due to “a mere conflict in the testimony or

because the judge on the same facts would have arrived at a different

conclusion.”    Id.      Instead,     the   trial   court   must   examine   whether

“notwithstanding all the facts, 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.” Id. Only where the jury verdict “is so contrary to the evidence as


                                           -5-
J-S62009-16


to shock one’s sense of justice”1 should a trial court afford a defendant a

new trial. Id.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable John A.

Boccabella, we conclude Appellant’s issues merit no relief.      The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.      See Opinion at 6-7 (finding evidence sufficient to support

Appellant’s convictions and verdict not against weight of evidence where

officer testified that: he responded to a call of erratic driving, observed

Appellant park and exit vehicle, observed Appellant return to vehicle five

minutes later, stumbling, smelling of alcohol and having difficulty opening

door to vehicle, Appellant later refused to submit to chemical testing, and

Appellant’s license was suspended following a DUI offense). Accordingly, we

affirm on the basis of the trial court opinion.




____________________________________________


1
  When “the figure of Justice totters on her pedestal, or when the jury’s
verdict, at the time of its rendition, causes the trial judge to lose his breath,
temporarily, and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.” Commonwealth v. Cruz, 919 A.2d
279, 282 (Pa.Super.2007) (internal citations omitted).



                                           -6-
J-S62009-16


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




                                 -7-
                                                                              Circulated 07/29/2016 03:21 PM




COMMONWEALTH OF PENNSYLVANIA                        IN THE COURT OF COMMON PLEAS
                  Appellee                          OF BERKS COUNTY, PENNSYLVANIA
             v.                                     CRIMINAL DIVISION

RICHARD FRANKLIN KROH,                              No. CP-06-CR-5974-2014
                    Appellant                       Superior Court No. 166 MDA2016 ·
                                                    BOCCABELLA, S.J.


John T. Adams, Esquire, DA, for the Commonwealth
Rachel Lok Keung, Esquire, Assistant District Attorney, for Appe ant

MEMORANDUM OPINION Boccabella S.J.                                                           2016

       Richard F. Kroh (hereinafter "Appellant"),               from the judgment of Sentence

entered on December 14, 2015 in the above captioned matter.

       I.      FACTUAL IDSTORY

       On December 4, 2014, officers from the Reading Police Department responded to a call

for a reckless driver, at around 7:09 pm in the area of the 300 block of Penn Street in Reading,

Berks County, Pennsylvania. About five or six minutes later, Officer Francis Contrera, called in

as back-up for Officer Daniel White, received a dispatch of where the driver was and where the

vehicle was driving. Officer Contrera was in the 600 block of Penn Street, driving west.

Dispatch said the vehicle was now in the 400 block of Franklin Street. The Officer was right

there in the 400 block driving west when he saw the vehicle described by dispatch - a gold sedan

that was coming west. Officer Contrera started watching what this driver was doing. He saw the

vehicle parking into an open parking space in the 400 block of Penn. Then Officer Contrera saw

the man exit the front driver side of the vehicle, close the door, walk toward the sidewalk and

continue walking west. Officer Contrera parked his police car behind the gold sedan; dispatch

gave the officer the plate number '?'Q,p '~tb.¢trJi@f911@.~H~~-8 About five minutes later, Officer

Contrera saw the same man, with th§O~lj1lqf~')jJ~\tUld          hat, who had exited that vehicle·


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         from the driver's side, walk back to the vehicle. Officer Daniel White then approached the man

         who had been driving the gold sedan; the license plate number of the sedan matched the number

         given by dispatch. Appellant was identified as the driver of the sedan in question. (Notes of

         Testimony, 11-6-15; Commonwealth's Exhibit 3, Omnibus PreTrial hearing, 5-5-15, pp. 3-8,

         15).   Officer White observed the man stumbling as he approached the vehicle.               The man

         appeared to have difficulty putting the key in the lock. Officer White asked the man if he could

         talk to him; the man was very hostile and didn't want to talk to him. Before the Officer was even

         able to speak to him, and from approximately six feet away, Officer White could smell.the strong

         odor of alcoholic beverages. The man's clothes were in disarray; he was unsteady on his feet,

         having difficulty even focusing. His eyes were having trouble tracking and he appeared to be

         intoxicated.   The man was belligerent.        Appellant was arrested for officer safety and for

         suspicion of driving under the influence of alcohol. He threatened to assault the officer if his

         cuffs were removed.      (Id. pp. 17-19). It was also discovered that he was driving under

         suspension, DUI related. Appellant knew his license was suspended at this time. Appellant was

         transported to the medical center for DUI testing. At the DUI center, Officer White explained

         the Implied Consent Law to Appellant and read the entire DL-26 form to him in its entirety.

         Appellant was asked if he would be willing to submit to chemical testing and sign the

         paperwork. He refused multiple times and again threatened to assault the officers. (N.T., 11-6-

         16, pp: 7-12, 18; Commonwealth's Exhibits 1 &2; Exhibit 3, 5-5-15, pp. 19-20).

                II.     PROCEDURAL HISTORY -

                Appellant was charged by Criminal Information with one count of Driving under the

         Influence of Alcohol, in violatio\l'Bf'Ji   fi'f1U~-1~}ef :~i2(a)(l), and one count of Driving while
         Operating Privilege is Suspended or Revoked, in violation of 75 Pa.C.S.A. § 1543(b)(l.l)(iii).
                                           90 :Zf Hd . +J- ~dV YlDZ             .         _      ·         ·

                                          SltinOQ .:JO ~a310
    Defendant filed an Omnibus PreTrial Motion, which was heard on May 5, 2015. On June 30,

    2015, Defendant's Petition for Writ of Habeas Corpus was granted for Count 1, Driving under

    the Influence of Alcohol, and· denied for Count 2, Driving while Operating Privilege is

    Suspended or Revoked under 75 Pa.C.S.A. § 1543(b)(l.l)(iii).                   On November 6, 2015, by ·

    agreement of counsel, the Information was amended to include count 3, Driving while Operating

    Privilege was Suspended or Revoked, in violation of 75 Pa.C.S.A. § 1543(b)(l), a .summary

    offense. Oh that same date, a bench trial was held and continued to December 14, 2015.

Appellant was found guilty of both remaining counts, two and three, and was sentenced on count

two to serve not less than two years nor more than five years in a state correctional facility, and
                                                1
to pay a fine in the amount of$ 5,000.              On December 22, 2015, Appellant filed Post Sentence

motions, which were denied on January 5, 2016. On January 27, 2016, Appellant filed a Notice

of Appeal to the Superior Court and was ordered to file a concise statement.

           In his Concise Statement of the Errors Complained of on Appeal, Appellant asserts:

           1.   "The trial court erred in finding Defendant guilty for Driving While Operating

                Privilege Suspended following DUI, 75 Pa.C.S.A. §1543(b)(l.l)(iii), where the

                evidence presented at trial was insufficient to prove beyond a reasonable doubt the

                elements of the offense:

                   a.   Where reasonable grounds of driving, operating, or actual physical control of

                        the movement of a vehicle with a Blood Alcohol Content of .02% or greater

                        or under the influence of a controlled substance is an essential element of the

                        offense · that must be proven for a refusal of chemical testing under

                        Pennsylvania's Implied Consent Law to be punishable under 75 Pa.C.S.A. §
                                           Vd '.\.Lr\f10'.)       ~;;;AH::l~:l
                        1547(a)(l) and 75 Pa.C.S.A. § 1543(b)(l.l).

l
                                                71 u ,
     Count three merged for sentencing purpoaO !vi ~;d
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                   b. Where the reasonable grounds requirement at 75 Pa.C.S.A. § 1547(a)(l)
 0-J
 ~                    requires probable cause and probable cause of a violation of a driving under

(.(:,
                      the influence offense has occurred is necessary for consent or refusal of a
~
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(IJ                   chemical blood draw to be permissible, valid, and punishable under 75
~
   ,
'<,'
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l\'I'                 Pa.C.S.A. § 1543(b)(1.1).

                  c. Where reasonable grounds/probable cause of a violation of a driving under the

                      influence offense is an element of Driving While Operating Privilege

                      Suspended following DUI, 75 Pa.C.S.A. § 1543(b)(l.1), when refusal of a

                      chemical blood draw is the basis for the offense.

                  d. Where the evidence presented at trial and the findings of fact by the court

                      provided no evidence that Defendant was driving, operating, or in actual

                      physical control of the movement of a vehicle while intoxicated.

        2. The verdict of guilty against Defendant for Driving While Operating Privilege

               Suspended following DUI, 75 Pa.C.S.A. § 1543(b)(l.l)(iii), is contrary to the weight

               of the evidence presented at trial, where testimony provided at trial showed a lack of

               reasonable grounds to find Defendant was under the influence of a controlled

               substance or that his Blood Alcohol Content was .02% or greater at the time of

               driving, operating, or actual physical control of the movement of a vehicle."

        III.       LEGAL ANALYSIS

                  Appellant first contends that the evidence is insufficient for Appellant's

        conviction under 75 Pa.C.S.A. § 1543(b)(l.1) because the officer lacked reasonable

        grounds/probable cause to     \~t·;~1.1Tr~fb1sP:P;~1fflt was driving, operating or in actual
        physical control of the vehicle while under the influence. Appellant misconstrues this
                                       90 :Zi Wd ~,- Hd~ ~!OZ
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    ~~             statute by focusing on only the first part of it and not the alternative grounds. While we
    <'./
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                   dismissed the charge of Driving under the Influence of Alcohol after the pre-trial hearing,

                  that did not preclude consideration of the other two charges. While Appellant would like

                  us to consider the dismissal of count one as a reason to also disregard the charge under §

                   1543(b)(l.1), the law does not compel us to do so. See Commonwealth v. Hill, 549 A.2d

                  583 (Pa.Super.1988), appeal denied 557 A.2d 721 (dismissal of Driving under the

                  Influence of Alcohol charge at the preliminary hearing did not preclude a conviction

                  under 154_3(b)(l}as a result of a chemical test refusal despite Appellant's claim that he

                  was denied equal protection under the law because he received the same mandatory

                  sentence for a DUI-related suspension as a person who was actually convicted for driving

                  while under the influence of alcohol).

                             The main statute at issue, in pertinent part, reads:

                  § 1543. Driving while operatingprivilege is suspended or revoked

                  ***
                  (b) Certainoffenses. -

                  ***
                  (l.l)(i)    "A person ... who refuses testing of blood or breath and who drives a motor

                  vehicle on any highway or trafficway of this Commonwealth at a time when the person's

                  operating privilege is suspended or revoked ... because of a violation of section

                  1547(b)(J) ... "

           75 Pa.C.S.A. §1543(b)(l. l(i)(emphasis added).

           Section 1547(b)(l) states:

                  (b) Suspension for refusal.-
,
fit,;T~,
           __




                         (1) If any person placed under arrest for a violation of section 3208 is requested to

                 submit to chemical testing and refuses to do so, the testing shall not be conducted ...

                 This statute goes on to state:

                         (e) Refusal admissible in evidence. - In any summary proceeding or criminal
                         proceeding in which the defendant is charged with a violation of section 3 802 or any
                         other violation of this title arising out of the same action, the fact that the defendant
                         refused to submit to chemical testing as required by subsection (a) may be introduced in
                         evidence along with other testimony concerning the circumstances of the refusal. No
                        presumptions shall arise from this evidence but it may be considered· along with other
                         factors concerning the charge.
                75 Pa.C.S.A. § 1547 (e)(emphasis added).

                        The evidence admitted at trial was sufficient to sustain the conviction for §1543(b)(l.l).

                Officer Francis Contrera, after receiving the dispatch of where the reckless driver was and where

                the vehicle was driving, was himself in the 600 block of Penn Street. Dispatch told him the

                vehicle was in the 400 block of Franklin Street. Officer Contrera was right there in the 400

                block, driving west, when he saw this vehicle going by. Officer Contrera started watching what

                this driver was doing. He saw the vehicle parking into an open parking space in the 400 block of

                Penn: The driver was subsequently identified as Appellant. Officer Contrera was the one who

                saw Appellant operate this vehicle at this time, before Appellant parked the car on Penn Street.

                This officer also saw Appellant leave from the driver's side of the vehicle, walk away and return

                within a short time span of about five minutes. Officer Daniel White, after approaching the

                driver, observed Appellant stumbling as he approached the vehicle. From approximately six feet

                away, Officer White could smell the strong odor of alcoholic beverages. Appellant had difficulty

                putting the key in the lock. Officer Whitt::.
                                                         \1
                                                              ;ask~qJ~@.lant\li'fte.!could talk to him; Appellant was
                                                            \...J.   •' \.-.., ' \. ~




                ·very hostile and belligerent. Appellant's clQth_~_s, were
                                                                       11-
                                                                           J11;,,!iliwtrfay; he was unsteady on his feet.
                                                            90 :Zt We                   itlc.tt   J·0"   .
it.,
m.     He had difficulty focusing and his eyes were having trouble tracking. Appellant appeared
x
       intoxicated. Under the totality of the circumstances, the delay of merely five minutes between

       his parking the car and returning to it does not negate this fact. We found, as the trier of fact,

       that: Officer White had probable cause to request Appellant submit to chemical testing, that

       Appellant was properly given the implied consent warnings, and that he refused chemical testing.

              As for the challenge to the weight of the evidence claim, the facts, as found by this court,

       clearly established that Officer White had probable cause to ask Appellant to submit to chemical

       testing. Appellant was intoxicated while he was driving and parking that car. Not only did our

       verdict not shock this Court's sense of justice, upon consideration of Appellant's prior driving

       record (Commonwealth's Exhibit 1), and his prior record score, and as we told Appellant at

       sentencing, " ... , if you really consider all of the circumstances, the fact that the habeas corpus

       was granted on the DUI . . . is somewhat miraculous that it did not end up a lot worse for

       [Appellant] than the way it did end up." (Notes of Testimony, 12-14-15, pp. 3-4).


              IV~     CONCLUSION

              As a result of the analysis above, the Court respectfully requests that Appellant's appeal

       be denied and the judgment of sentence, entered on December.14, 2015, be affirmed.




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                                                        7
