J-S58019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TERRY L. BLACK                           :
                                          :
                    Appellant             :   No. 309 WDA 2018

                   Appeal from the Order February 2, 2018
     In the Court of Common Pleas of Butler County Criminal Division at
                      No(s): CP-10-SA-0000108-2017


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                        FILED OCTOBER 22, 2018

      Terry L. Black (Appellant) appeals from the trial court’s order finding

him guilty of the summary offense of driving on roadways lined for traffic, 75

Pa.C.S.A. § 3309. We affirm.

      During the early evening hours of March 13, 2017, Appellant was driving

his tractor trailer eastbound on Route 422 in the right hand lane. Appellant

moved into the left lane when several vehicles ahead of him began to slow

down preparing to make a right turn at the upcoming intersection.         After

passing the intersection, Appellant began to move back into the right lane.

Matthew Walter, who was driving in the same direction in the right lane, was

struck by Appellant’s truck. The force of the collision caused Walter’s vehicle

to spin across the highway and into oncoming traffic. Walter’s vehicle collided

with a vehicle driven by Jasmine Kubistek, causing both drivers significant

injuries.
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      Appellant was charged with violating 75 Pa.C.S.A. § 3309(1), driving on

roadways laned for traffic – driving within single lane. He appeared before a

magisterial district judge and was found guilty. On July 31, 2017, Appellant

filed a timely appeal from the summary conviction.          Following several

continuances, a de novo trial was held before the trial court on February 2,

2018. Thereafter, the trial court convicted Appellant of the summary offense,

and fined Appellant $25 plus court costs.

      On March 1, 2018, Appellant filed a notice of appeal with this Court. The

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

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his statement on

March 23, 2018.     The trial court issued its opinion pursuant to Pa.R.A.P.

1925(a) on April 13, 2018.

      On appeal, Appellant raises the following issues for review:

      I.     Whether the [l]ower [c]ourt erred and abused its discretion
             by allowing irrelevant testimony of witnesses presented by
             the Commonwealth[?]

      II.    Whether the [l]ower [c]ourt erred and abused its discretion
             by failing to allow the [d]efense to properly cross examine
             Matthew Walters[?]

      III.   Whether the [l]ower [c]ourt erred and abused its discretion
             by failing to consider the possibility that there was an
             equally likely cause and therefore the Commonwealth failed
             to meet its burden of proof[?]

      IV.    That the [l]ower [c]ourt erred and abused its discretion by
             entering a verdict that went against the weight of the
             evidence    presented    by   the   [d]efense    and    the
             Commonwealth.


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Appellant’s Brief a 4 (trial court answers omitted).

      Appellant’s first two issues relate to evidentiary decisions made by the

trial court. Our standard of review regarding evidentiary issues is as follows:

      “The admissibility of evidence is at the discretion of the trial court
      and only a showing of an abuse of that discretion, and resulting
      prejudice, constitutes reversible error.”         Commonwealth v.
      Sanchez, 36 A.3d 24, 48 (Pa. 2011) (citations omitted). “An
      abuse of discretion is not merely an error of judgment, but is
      rather the overriding or misapplication of the law, or the exercise
      of judgment that is manifestly unreasonable, or the result of bias,
      prejudice, ill-will or partiality, as shown by the evidence of record.”
      Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super.
      2007) (citation omitted), appeal denied, [] 956 A.2d 432 (Pa.
      2008). Furthermore, “if in reaching a conclusion the trial court
      overrides or misapplies the law, discretion is then abused and it is
      the duty of the appellate court to correct the error.”
      Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super.
      2009) (citation omitted), appeal denied, [] 986 A.2d 150 (Pa.
      2009).

Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012).

      In his first issue, Appellant argues that the trial court erred in admitting

the testimony of Jasmine Kubistek, describing the injuries she sustained in the

March 13, 2017 accident. Specifically, Appellant contends that a description

of Kubistek’s injuries “was of no relevance to proving [Appellant] was allegedly

making an improper lane change.” Appellant’s Brief at 8. Appellant argues

that 75 Pa.C.S.A. § 3309(1) does not require evidence of injury, and thus

Kubistek’s testimony was irrelevant. Id.

      During the trial, Appellant’s counsel did not object to Kubistek’s

testimony regarding the injuries she sustained in the accident.          It is well



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settled that “a defendant’s failure to object to allegedly improper testimony at

the appropriate stage . . . constitutes waiver.” Commonwealth v. Molina,

33 A.2d 51, 56 (Pa. Super. 2011) (citing Commonwealth v. Redel, 484 A.2d

171, 175 (Pa. Super. 1984). Here, although Appellant initially objected when

Kubistek began describing the injuries she sustained in the accident, see N.T.,

2/2/18, at 8, Appellant later withdrew his objection after the trial court

overruled it. Id., at 8-9 (stating, “Judge, I’ll withdraw my objection.”). Thus,

Appellant has waived his appellate challenge to Kubistek’s remarks describing

her injuries because counsel failed to preserve the objection to the remarks.

See also Commonwealth v. Baumhammers, 960 A.2d 59 (Pa. 2008) (“it

is axiomatic that issues are preserved when objections are made timely to the

error or offense”); Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008)

(absence of a contemporaneous objection below constituted a waiver of

appellant’s claim respecting the prosecutor’s closing argument); Pa.R.A.P.

302(a).

      In his second issue, Appellant argues that the trial court improperly

prevented defense counsel from fully questioning Walter on cross-examination

when it sustained the Commonwealth’s objection. Appellant complains that

the trial court erred by precluding defense counsel from questioning Walter

about his thought process during the moments leading up to the accident.

Appellant’s Brief at 9-10. Appellant contends:

      [t]he line of questioning being directed towards Mr. Walters [sic]
      was designed to prove inconsistencies in his previous testimony.

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      If allowed to continue, the questions would have shown the
      potential that Mr. Walters [sic] was traveling at a speed in excess
      of his stated 55 miles per hour and was attempting to pass
      [Appellant] on the right.

Appellant’s Brief at 10.

      This argument is without merit. The record reflects that the trial court

sustained the Commonwealth’s objection during the following exchange:

      [Defense counsel]: Jerk the wheel. Why would you jerk the
      wheel? Why didn’t you just move over?

      [Walter]: He was coming over into my lane.

      [Defense counsel]: All right. And he was coming into another
      lane, but technically there were three lanes, were there not? The
      paved berm, your lane that you were in --

      [Walter]: I did not feel that the paved berm --

N.T., 2/2/18, at 24.

      The Commonwealth objected and the trial court sustained the objection

for two reasons: Walter was not charged with a violation of the Vehicle Code,

and thus whether he was speeding or attempting to pass in the right lane was

of   no   consequence,     and   the   questions   by   defense   counsel   were

argumentative. Id. at 25.

      We discern no abuse of discretion in the trial court’s ruling. Evidence of

Walter’s thought process as Appellant’s truck began to veer into his lane is

not relevant to whether Appellant is guilty of Section 3309. Moreover, as the

Commonwealth points out, “[d]efense [c]ounsel was free to rephrase his

question/questions and to continue with his cross-examination of the witness

and did in fact continue with cross-examination after the objection was


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sustained.” Commonwealth Brief at 7. Based upon our review of the record,

particularly the transcript, it is clear that defense counsel had ample

opportunity to cast doubt on Walter’s testimony. The trial court’s decision to

limit Appellant from eliciting irrelevant testimony regarding Walter’s thought

process was not an abuse of discretion. Accordingly, this claim does not merit

relief.

          Appellant’s third and fourth issues are related and we therefore address

them together.       Appellant argues that the trial court erred in finding the

testimony of the Commonwealth’s witnesses to be more credible than

Appellant’s testimony.       Appellant’s Brief at 11-14.   In addition, Appellant

asserts that the verdict was against the weight of the evidence due to the

“inconsistent or inconclusive statements by the primary witness of the

Commonwealth, and their other two witnesses simply testified to the extent

of their injuries, not that [Appellant] failed to safely merge.”       Id. at 14.

Appellant’s issues challenge the weight of the evidence supporting his

conviction. See Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012)

(stating that a challenge to the credibility of a witness is a challenge to the

weight of the evidence).

          It is well-settled that an appellant must preserve a challenge to the

weight of the evidence before the trial court by raising it in a motion for a new

trial – either orally or by written motion – or in a post-sentence motion.

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (citing

Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011); see also

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Pa.R.Crim.P. 607(A). We note that a defendant appealing a summary offense

in the court of common pleas is precluded from filing a post-sentence motion.

See Pa.R.Crim.P. 720(D). Although Rule 720(D) prevents preservation of a

weight of the evidence claim by means of a post-sentence motion in a

summary case, it does not vitiate the defendant’s responsibility to preserve

such a challenge, and Rule 607 provides that a defendant may do so by

presenting the trial judge with a motion for a new trial. See Commonwealth

v. Dougherty, 679 A.2d 779, 784-85 (Pa. Super. 1996) (finding appellant’s

summary appeal challenge to weight of the evidence preserved where the

“trial judge explicitly addressed . . . weight of evidence at the close of

appellant’s trial” in the absence of post-sentence motions). Here, Appellant

failed to raise his weight claim before the trial court as mandated by Rule 607.

Accordingly, Appellant’s third and fourth issues are waived.


      Order affirmed.

       Judge Olson and P.J.E. Ford Elliott concur in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2018




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