J-A32039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANDREW P. BIROS

                            Appellant              No. 145 WDA 2015


      Appeal from the Judgment of Sentence entered December 18, 2014
           In the Court of Common Pleas of Westmoreland County
               Criminal Division at No: CP-65-SA-0000225-2014


BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                           FILED MAY 20, 2016

        Appellant, Andrew P. Biros, appeals from the judgment of sentence

entered in the Court of Common Pleas of Westmoreland County on

December 18, 20141 following his conviction of the summary offense of

public drunkenness.2 Upon review, we affirm.




____________________________________________


1
   As the caption reflects, this appeal is from the judgment of sentence
entered on December 18, 2014, and not—as Appellant incorrectly suggests—
from the trial court’s January 7, 2015 order denying his post-sentence
motion.
2
    18 Pa.C.S.A. § 5505.
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       On April 27, 2014, Appellant was a patron at The Rialto Café (“Rialto”),

a bar in the City of Greensburg.3 According to Rialto employee Justin Payton

(Payton), who testified first for the Commonwealth, Appellant, along with his

girlfriend Andrea Hogue and one other male individual, was in the patio area

of the Rialto at approximately 2:00 a.m., the closing time for the bar. N.T.

Summary Appeal Trial, 12/18/14, at 9. Payton worked as security and as a

barback for the Rialto for two years. Id. at 5. At approximately 2:10 a.m.,

Payton asked Appellant and his friends to leave the bar because it had

closed.    Id. at 10.       One of the three responded they were waiting for

Appellant’s sister and were not going to leave. Id. at 11.      Appellant, who

appeared drunk to Payton, stated he was “not leaving her here for you guy

[sic] to rape.” Id. at 12.       Payton then grabbed Appellant’s friend who was

giving him problems and started dragging him out of the bar. Id. at 13. As

he attempted to remove the man standing with Appellant, Appellant grabbed

Payton from behind, ripping Payton’s shirt in the process.          Id. at 14.

Payton then turned his attention to Appellant to remove him from the bar.

Id. Appellant fought back the entire time Payton was trying to remove him.

Id. at 15. Payton saw Appellant consume alcohol earlier in the evening and

that “he reeked of alcohol, and he had a complete attitude.”         Id. at 16.


____________________________________________


3
  Unless otherwise specified, these facts come from the transcript of the
summary appeal trial held on December 18, 2014. N.T. Summary Appeal
Trial, 12/18/14, 1-91.



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Based upon his experience with other intoxicated individuals, Payton

believed Appellant was under the influence of alcohol. Id. at 16-17. When

Payton reached the exit, Rialto employee Scott Riddle approached him to

help take Appellant to the sidewalk. Id. at 17. At that point, Payton went

back inside to retrieve the other man. Id. When he brought the other man

outside, Appellant “was screaming at everybody, saying I’m going to sue

you all. This is bullshit.” Id. Appellant’s girlfriend told Payton she had lost

her glasses, so Payton went with her to look for her glasses on the patio.

Id.   While back in the bar, Payton could still hear Appellant yelling and

screaming outside.    Id. at 21. Appellant then ran back into the bar. Id.

Payton dragged Appellant out of the bar a second time to the sidewalk. Id.

There were a few bartenders and a few other people on the sidewalk at that

time. Id. at 19.     Within a few minutes of removing the Appellant a second

time, police arrived. Id. It was Payton’s opinion Appellant was still under

the influence of alcohol at the time. Id. at 22.

      Scott Riddle (“Riddle”) also testified. At the time, he was employed at

the Rialto as a doorman/security for about two and a half years. Id. at 33.

He was notified of a disturbance on the deck by a bartender or a patron and

went to the deck to see what was happening. Id. at 34-35. At that point,

Payton already had been in an altercation with Appellant and other

individuals. Id. at 36. Riddle testified,

      [Appellant] was just acting like any other drunk individual that
      was irate. He was going off the handle yelling we are going to
      sue you, blah-blah-blah. I said to him, you need to be quiet and

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         shut up because if you don’t, the police are going to come. And
         at that point in time it was, like, they were already there at that
         point.

Id. at 38.       Based on his observations, Riddle was of the opinion that

Appellant was under the influence of alcohol. When asked how alcohol was

affecting Appellant, Riddle testified, “I mean, he wasn’t blackout drunk, but

he was getting there.” Id. at 39. When police arrived, Appellant continued

to exhibit the same behavior he engaged in before police arrived at the bar.

Id. at 41. At some point in time during the evening, Riddle was informed,

possibly by Payton, that Appellant no longer was to be served alcohol.         Id.

at 42.

         Officer Shawn Denning, a six-and-a-half year veteran with the City of

Greensburg Police Department, also testified.         Id. at 51.    When Officer

Denning arrived on the scene, it was “fairly chaotic” and Appellant was

“screaming, yelling, pointing at the bouncers.”       Id. at 52.   Appellant was

very loud and patrons were lingering outside of the bar, focusing on

Appellant.     Id. at 54.   When he initially tried to have a conversation with

Appellant, he could smell the odor of alcohol on Appellant’s person and

breath. Id. Although he could understand what Appellant was saying, he

noticed that Appellant was slurring his speech.        Id. Appellant was visibly

upset and continued to yell and scream during the attempted conversation.

Id. at 55. Based upon his experience and observations, Officer Denning was

of the opinion Appellant was under the influence of alcohol, id. at 56, such

that he “would definitely not feel safe to let [Appellant] walk away from that


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scene.” Id. On cross-examination, Officer Denning testified that when he

first arrived, he observed only a minor laceration with a small amount of

blood on Appellant’s nose. Id. at 58.

      Appellant presented the testimony of his girlfriend, Andrea Hogue. Ms.

Hogue believed that Appellant consumed only two beers, and was confident

that no one in their party was denied alcohol by the bartender. Id. at 68-

69. She testified that after 2:00 a.m., they were told it was time to leave by

someone who was trying to usher them out the door. She responded she

was looking for her glasses. Id. at 69-70. She then saw Payton come over

and grab Appellant, throw him against the patio fence, and punch him in the

face. Id. She did not observe Appellant provoke Payton in any way such as

jumping on his back. Id. She however, was not able to observe everything

because she was not wearing her glasses.        Id. at 72.    In her opinion,

Appellant was not intoxicated. Id.      After police arrived, she observed

Appellant with a bloody nose and a scratched-up neck.        Id. at 73.   Ms.

Hogue testified that Payton’s shirt was ripped because she was trying to pull

him off Appellant. Id.

      Appellant testified on his own behalf.   Appellant testified he had not

consumed any alcohol before arriving at the Rialto and thinks he had about

two beers while there. Id. at 85. He did not recall slurring his speech, but

stated that he does sometimes because he mumbles a lot. Id. He and his

friend were standing outside waiting for Ms. Hogue and another female to

exit the bar. Id. at 86. He saw his friend “getting pushed around” by Riddle

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who then started pushing Appellant. Id. Suddenly, Appellant was grabbed

by the neck and punched in the face three times but was never escorted out

of the bar. Id. He made it out of the bar on his own and went down the

street to the area where Officer Denning actually arrested him. Id. He was

trying to get to his car but was so concussed that he was walking the wrong

way.    Id.   He never raised his voice and did not say a word to Officer

Denning until he was taken to the patrol car. Id. at 87. He further denied

screaming in the street, being escorted from the bar twice, or that Officer

Denning tried to have a calm conversation with him.            Id. at 87-88.

Appellant testified that he was immediately handcuffed upon Officer

Denning’s arrival. Id. at 89.

       At the conclusion of the bench trial, Appellant was found guilty of

public drunkenness and fined $500 plus costs. Judgment of sentence was

entered on December 18, 2014.          Appellant filed a post-sentence motion,

which was denied by order of January 7, 2015.        Appellant timely filed an

appeal and complied with the court’s order to file a 1925(b) statement. The

trial court filed a 1925(a) opinion.

       On appeal, Appellant raises four issues:

       1. Whether the trial court had sufficient evidence, as a matter of
          law, to find [Appellant] guilty of being manifestly under the
          influence of alcohol under Section 5505 of the Pennsylvania
          Crimes Code, when the evidence viewed in a light most
          favorable to the Commonwealth showed only that [Appellant]
          (1) smelled of alcohol, (2) had been forcibly removed from a
          bar, (3) was observed to be loud outside the bar and (4) was



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         observed to have slightly slurred speech but otherwise
         articulate?

      2. Under the Sixth and Fourteenth Amendments to the United
         States Constitution, did the trial court below infringe upon
         [Appellant’s] right to Assistance of Counsel, and thus, commit
         reversible error, when the judge denied defense counsel the
         opportunity to deliver closing argument?

      3. Whether the factual findings of the trial court constitute an
         error of law or abuse of discretion when the judge’s rulings
         and conduct at trial convey prejudice and bias against
         [Appellant].     Specifically, where the trial court only
         considered [Appellant’s] reactions following a physical
         altercation with one of his accusers and where the trial court
         refused to consider the actions of the accuser as an alternate
         cause for [Appellant’s] loud behavior and where the trial court
         improperly overruled hearsay and relevance objections to
         admit highly prejudicial and unverified statements [sic].

      4. Whether the trial court committed an abuse of discretion
         when it found the verdict was not against the manifest weight
         of the evidence [sic].

Appellant’s Brief at 5-6.

      In his first issue, Appellant contends the evidence presented at trial

was insufficient to prove, beyond a reasonable doubt, that Appellant was

guilty of the summary offense of public drunkenness.      Appellant’s Brief at

16.

      When we review a claim regarding sufficiency of the evidence, we

must determine:


      whether the evidence admitted at trial, and all reasonable
      inferences drawn from that evidence, when viewed in the light
      most favorable to the Commonwealth as verdict winner, was
      sufficient to enable the factfinder to conclude that the
      Commonwealth established all of the elements of the offense

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J-A32039-15


      beyond a reasonable doubt.       Additionally, when examining
      sufficiency issues, we bear in mind that: the Commonwealth’s
      burden may be sustained by means of wholly circumstantial
      evidence; the entire trial record is evaluated and all evidence
      received against the defendant considered; and the trier of fact
      is free to believe all, part, or none of the evidence when
      evaluating witness credibility.

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007).

      An accused is guilty of public drunkenness “if he appears in any public

place manifestly under the influence of alcohol . . . to the degree that he

may endanger himself or other persons or property, or annoy persons in his

vicinity.” 18 Pa.C.S.A. § 5505. Instantly, it is undisputed that Appellant was

in a public place. The only issue to be decided is whether the evidence was

sufficient to support a finding Appellant was “manifestly under the influence

of alcohol” to the degree required under Section 5505.

      Upon review, we have no trouble concluding that the trial court did not

err in finding that the evidence was sufficient to support a conviction for

public drunkenness.   Three individuals, Mr. Payton, Mr. Riddle, and Officer

Denning, all testified Appellant was under the influence of alcohol.       In

addition to Appellant’s belligerent behavior, odor of alcohol, and slurred

speech, Appellant was involved in a physical altercation, was forcibly

removed from the Rialto, and continued to yell over Officer Denning’s

requests to calm down.       Despite Appellant’s claim, whether Appellant

showed signs of intoxication inside the Rialto prior to closing or was denied

alcohol by the bartender is of no moment.      While he was in the bar and

outside, there were numerous other people in Appellant’s vicinity and the


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J-A32039-15



record supports the conclusion that Appellant might “endanger himself or

other persons or property, or annoy persons in his vicinity.” 18 Pa.C.S.A. §

5505.       Indeed, Appellant had already sustained injuries during a physical

confrontation prior to Officer Denning’s arrival.   He was disruptive enough

that “the patrons outside lingering around were all focused on him and what

was going on.” N.T. Summary Appeal Trial, 12/18/14, at 54.              Officer

Denning testified that he “would definitely not feel safe to let [Appellant]

walk away from the scene.” Id. at 56. Our review of the record indicates

that the evidence was indeed sufficient to support the trial court’s finding

that Appellant was manifestly under the influence of alcohol to a degree he

may endanger himself or other persons or property, or annoy persons in his

vicinity.

        We find Appellant’s almost exclusive reliance on Commonwealth v.

Meyer, 431 A.2d 287 (Pa. Super. 1981), to be misplaced. Appellant argues

that Meyer established “that the element of being ‘manifestly under the

influence of alcohol . . . [was] designed to require some aberrant behavior’”

and “that the offense of Public Drunkenness is ‘carefully drawn so as not to

punish all forms of drunkenness.’” Appellant’s Brief at 17 (quoting Meyer,

431 A.2d at 291-92). Appellant claims that he was belligerent only after he

was in a physical altercation with Payton and that none of the testimony

shows that he exhibited signs of intoxication inside the Rialto prior to

closing, except the inadmissible hearsay indicating Appellant was denied

alcohol by the bartender.      Appellant’s Brief at 29.   Appellant argues that

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J-A32039-15



Meyer demonstrates that Appellant’s slightly slurred speech and odor of

alcohol alone are not sufficient to prove him guilty of public drunkenness.

      We find the following from Meyer sufficient to demonstrate why that

case is distinguishable from the instant matter.

      Other than testimony to the effect that he was staggering a bit
      and that his breath smelled of alcohol, there is nothing in the
      record to support the Commonwealth’s contention that he was
      “manifestly under the influence of alcohol.”       It must be
      remembered that for the Commonwealth’s argument to succeed,
      it must be shown that appellant was intoxicated to the requisite
      degree while he was outside the [V.F.W.], in the so-called
      “public place.” Therefore, it must be shown that while appellant
      was outside the [V.F.W.], he was intoxicated to such a degree
      that he might endanger himself or others or property, or
      annoy persons in his vicinity.

            It appears from the record that the only persons outside
      the [V.F.W.] at that point in time were the two officers, and
      there is no testimony indicating that they felt appellant might
      harm them or himself, especially since, as soon as they arrived
      outside, the officers put appellant in a squad car. Again it is our
      opinion that the statute was designed to protect the public from
      “manifestly drunk” persons who voluntarily go to public places
      where they are likely to harm or annoy the people likely to be
      found there. Since the only persons in appellant’s vicinity were
      the two officers who insisted that appellant accompany them
      outdoors, we hold that this element of the offense was not
      established here beyond a reasonable doubt.

Meyer, 431 A.2d at 291 (emphasis added).

      In Meyer, the defendant was found not to be intoxicated to the degree

required by Section 5505 because there was no evidence the defendant was

a danger to himself or likely to harm or annoy anyone in the vicinity. While

the defendant in Meyer may have been intoxicated, he was not guilty of

public drunkenness, since there were no other persons in his vicinity, other

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J-A32039-15



than police, who felt he was no threat to himself or the police.           Defendant

immediately was placed in a squad car where he was in no position to harm

or annoy other people. The facts in Meyer stand in stark contrast to those

here, where the evidence was such that Appellant was intoxicated, was

verbally abusive, engaged in physical confrontations, and did so while in the

company of other patrons, his friends, police, bar personnel, and other

members of the public gathered who were observing his aberrant conduct.

Accordingly, viewing the evidence in a light most favorable to the

Commonwealth as the verdict winner, we find no merit to Appellant’s

sufficiency claim.

      In his second issue, Appellant contends the trial court violated his right

to   assistance   of   counsel   in   violation   of   the   Sixth   and   Fourteenth

Amendments by refusing to let his counsel present a closing argument.

Appellant did not raise this issue in his Rule 1925(b) statement, but does so

for the first time in his brief.       Accordingly, the issue is waived.         See

Pa.R.A.P. 1925(b)(4)(vii).

      In his third issue, Appellant argues the trial court evidenced bias and

prejudice against him because it only considered Appellant’s reactions

following a physical altercation with one of his accusers, refused to consider

the actions of the accuser as an alternate cause for Appellant’s loud

behavior, and improperly overruled hearsay and relevance objections highly




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prejudicial and unverified statements.4            The trial court, sitting as the fact-

finder, was obliged to hear and consider all evidence and to weigh and make

credibility determinations. As long as the trial court’s findings are supported

by record evidence, this Court is not free to substitute its judgment for that

of the trial court. A trial court sitting as factfinder does not exhibit bias or

prejudice simply because it chooses not to believe the evidence proffered by

a non-prevailing party.

       [S]imply because a judge rules against a defendant does not
       establish any bias on the part of the judge against that
       defendant. If the appellate court determines that the party
       alleging judicial bias received a fair trial, then the allegation of
       judicial bias is not borne out.

Commonwealth v. Travaglia, 661 A.2d 352, 367 (Pa. 1995), cert. denied,

516 U.S. 1121 (1996)(citation omitted).              As in Travaglia, Appellant here

asserts nothing more than his disagreement with the trial court’s adverse

rulings in support of his claim of prejudice and bias.                   Without more,

Appellant’s claim fails.

       Finally, Appellant argues the trial court abused its discretion by

concluding the verdict was not against the weight of the evidence.

Appellant’s    weight    claim    is   premised      upon   challenges    to   credibility

determinations made by the trial court. Appellant claims that it is shocking

____________________________________________


4
  While Appellant raises these evidentiary issues to support his claim of bias
and prejudice by the trial court, Appellant does not raise these evidentiary
issues in and of themselves as bases for a new trial.



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to one’s sense of justice that the trial court based its verdict on the

credibility of Peyton and found that Appellant’s nose was lacerated in the

course of a physical altercation with Peyton, who testified he never struck or

punched Appellant. Appellant argues it is shocking that Peyton and Riddle

were deemed credible when their testimony was conflicting and self-serving.

He also assails the credibility of Officer Denning who testified       that in

circumstances like this case, he always looks for someone to drive an

individual home.   Here, however, Appellant was released to his girlfriend

three hours after being arrested.

      This Court’s standard of review when addressing a weight claim is well

settled.

      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 only reverse the lower court’s verdict if it is so
      contrary to the evidence as to shock one’s sense of justice.
      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. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

omitted). Moreover,

      A verdict is not contrary to the weight of the evidence because of
      a conflict in testimony or because the reviewing court on the
      same facts might have arrived at a different conclusion than the
      fact[-]finder. Rather, a new trial is warranted only when the
      jury's verdict is so contrary to the evidence that it shocks one's


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        sense of justice and the award of a new trial is imperative so
        that right may be given another opportunity to prevail.

Commonwealth           v.   Morales,     91    A.3d   80,   91   (Pa.   2014),   citing

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003).

        The trial court heard and viewed the evidence and resolved material

inconsistencies against the Appellant. The trial court found Payton, Riddle,

and Officer Denning to be credible witnesses, as all three testified similarly

regarding Appellant’s behavior at the Rialto. Trial Court Opinion, 3/12/15,

at 1.    The trial court believed Payton’s testimony that he did not punch

Appellant in the face and rejected the accounts offered by Appellant and Ms.

Hogue, who claimed Payton’s attack on Appellant was unprovoked and that

Appellant was never extremely loud and hostile. Based on the above facts

and our review of the record, we discern no abuse of discretion in the trial

court’s ruling on the weight of evidence claim.5 Appellant does no more than

argue perceived inconsistencies in the evidence and urges this Court to

reweigh the evidence presented before the trial court, something we cannot
____________________________________________


5
  Appellant claims the trial court did not cite the correct standard for a
weight of the evidence claim. In fact, it is hard to tell the basis for the trial
court’s sufficiency and weight determination in that the trial court merely
concluded     that “[u]nder the applicable standard of review . . . it is
submitted that there was sufficient competent evidence to support the
Defendant’s conviction and that no [e]rror of [l]aw occurred.” Trial Court
Opinion, 3/12/15 at 2. Despite this lack of analysis, we are not impeded
from reviewing Appellant’s weight claim, as the entire record of these
proceedings is available for review. See Commonwealth v. Widmer, 744
A.2d 745, 752-53 (Pa. 2000) (In the interests of justice, weight claim may
be reviewed even though a court applies the wrong standard of review.).



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do. Appellant has not argued—much less demonstrated—that the trial court

committed a palpable abuse of discretion by rejecting his request for a new

trial based upon the weight of the evidence.    As such, Appellant is not

entitled to relief on this claim.

      Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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