J-S01022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PAUL ASHMUNN

                            Appellant                 No. 813 WDA 2014


              Appeal from the Judgment of Sentence April 8, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000716-2013


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

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 24, 2014

        Appellant Paul Ashmunn appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas following his jury trial

convictions for driving under the influence (“DUI”), general impairment, DUI,

highest rate of alcohol, and the summary offenses of careless driving, failing

to keep a vehicle to the right side of the road, and failing to yield. 1   We

affirm.

        The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

           On November 16, 2012 at approximately 8:30 p.m., Mr.
           Guy Medved, an employee of Mayer Brothers Construction
           Company, was towing a truck east on Main Street, in
           Springfield Township, Erie County, Pennsylvania. This is a
____________________________________________


1
    75 Pa.C.S. §§ 3802(a)(1), 3802(c), 3714(a), 3301(a), 3302, respectively.
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           two[-]lane highway. Near the Federated Church[,] he
           encountered [Appellant] traveling in the opposite
           direction[,] who passed him and then struck Mr. Medved’s
           trailer.[2]   He spoke to [Appellant] and attempted to
           exchange insurance information.       [Appellant] did not
           provide any.       Mr. Medved began to call 911 when
           [Appellant’s] friend (and a passenger in [Appellant’s]
           vehicle) said that was not necessary. After [Appellant] left
           [in his vehicle], Mr. Medved called 911 and later met with
           Trooper Samuel Laureto, who responded within minutes
           after the accident.      As Medved wanted [Appellant’s]
           insurance information, he searched for [Appellant’s]
           vehicle. He found it approximately 20-30 minutes after
           the accident. Trooper Laureto did likewise. [Appellant’s]
           van was found approximately 100 yards from the scene in
           the vicinity of a house.

           As Trooper Laureto approached the house, [Appellant]
           opened the door, holding a plate of food. He stumbled on
           the stairs. Laureto asked him if he was the driver of the
           vehicle and [Appellant] said no. When asked if he had a
           license[,] he said yes. (This is not what he had told Mr.
           Medved earlier.) Trooper Laureto asked [Appellant] for his
           name and background information. He noticed that he had
           glassy eyes and there was an odor of alcoholic beverage
           emanating from him.        [Appellant] was swaying and
           slurring his words. Laureto concluded that [Appellant] was
           heavily intoxicated and asked him if he had been drinking.
           [Appellant] said that he had consumed four (4) beers.
           [Appellant] told Laureto that he couldn’t prove that he
____________________________________________


2
    At trial, Mr. Medved described the accident as follows:

           There was a guy driving, and he drove over into my lane
           making a turn…. He was over in my lane coming at me.
           I’m slowing down, and he drives past me and then
           hits…the side of my trailer…. But the corner of his van was
           almost in the grass, just right on the edge of the grass….
           He went back over to his lane, missed my truck, and then
           run back into my trailer….

N.T., 7/7/14, at 17, 27.



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          ([Appellant]) was driving.      Laureto ran [Appellant’s]
          background information and found that [Appellant’s]
          license had been suspended.        This conversation with
          [Appellant] took place at approximately 8:50 p.m.,
          approximately 29 minutes after the 911 call had been
          made by Mr. Medved.           Throughout the interview,
          [Appellant] was confrontational, cursed and called the
          trooper a "dick". He also told the trooper he did not do
          field sobriety tests.     At that time, Laureto placed
          [Appellant] under arrest and transported him to the Girard
          Barracks of the Pennsylvania State Police.       There he
                       3
          Mirandized[ ] [Appellant] and questioned him concerning
          his drinking.   [Appellant] responded by cursing.       He
          continued to berate Laureto and other troopers present.
          The officers had a long and difficult time with him.
          [Appellant] was administered his O'Connell[4] warnings
          which he indicated he understood. He agreed to chemical
          testing which was conducted by way of a blood draw at
          2155 hours or 9:55 p.m. His blood alcohol level was
          .198%.

          [Appellant] presented the testimony of his friend Jason
          DeSantis[.] He testified that [Appellant] was on the way
          to his house for drinks and arrived at approximately 7:15
____________________________________________


3
 Miranda v. Arizona, 384 U.S. 436, 16 L.Ed 2d 694 (U.S.1966).
4
 O’Connell warnings concern a refusal to submit to chemical testing by a
motorist suspected of DUI. Our Supreme Court has discussed O’Connell
warnings as follows:

          [A] proper O'Connell warning must include the following
          information: first, a motorist must be informed that his
          driving privileges will be suspended for one year if he
          refuses chemical testing; second, the motorist must be
          informed that his Miranda rights do not apply to chemical
          testing. This is by no means a mantra that the police must
          recite like automatons.    The subject matter, however,
          should be covered in warnings issued by the police.

Com. Dep't of Transp., Bureau of Driver Licensing v. Ingram, 648 A.2d
285, 294-95 (Pa.1994).




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         p.m. He said [Appellant] was upset regarding the accident
         and began drinking whiskey and beer. The two shared the
         alcohol and both he and [Appellant] had a ‘buzz going.’
         DeSantis stated that the state police arrived about 8:45
         p.m., at which time [Appellant] stated he would take care
         of it.

         On April 9, 2014, [Appellant] was sentenced to a period of
         incarceration of 13 to 26 months at Count 2. Count 1
         merged. Fines and costs were assessed on the summary
         offenses. This sentence was to be served concurrently and
         overlapping with another sentence [Appellant] was serving
         at the time. On April 15, 2014, he filed a post sentence
         motion which was denied by this [c]ourt the same day.

Trial Court Opinion, filed July 1, 2014, at 1-3.

      On May 13, 2014, Appellant timely filed a notice of appeal. The next

day, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       After the court

granted Appellant’s motion to extend the time to file his Rule 1925(b)

statement to July 3, 2014, Appellant timely complied with the court’s order

on June 30, 2014.

      Appellant raises the following issue for our review:

         [WHETHER] THE VERDICT WAS AGAINST THE WEIGHT OF
         THE EVIDENCE IN THAT NO EVIDENCE WAS PRESENTED
         THAT APPELLANT WAS INTOXICATED AT THE TIME HE
         WAS DRIVING[?]

Appellant’s Brief at 2.

      Appellant only raises one question for our review, that the verdict was

against the weight of the evidence. His argument, however, challenges both

the sufficiency of the evidence and the weight of the evidence. To address


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his weight claim, we must first address his implicit challenge to the

sufficiency of the evidence.

      Appellant argues that “no evidence” was presented that Appellant was

intoxicated while he was driving.    Appellant contends the officers failed to

provide information regarding the calibration of scientific equipment used for

testing the alcohol in his blood and failed to show Appellant was driving the

vehicle while the alcohol was in his system.         Appellant concludes the

Commonwealth did not present enough evidence to prove that he was

legally intoxicated while driving. We disagree.

      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.

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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)).

      The DUI offenses for which Appellant was charged are defined by

statute as follows:



         § 3802. Driving under            influence   of   alcohol   or
         controlled substance

         (a) General impairment.--

         (1) An individual may not drive, operate or be in actual
         physical control of the movement of a vehicle after
         imbibing a sufficient amount of alcohol such that the
         individual is rendered incapable of safely driving, operating
         or being in actual physical control of the movement of the
         vehicle.

                                 *    *     *

         (c) Highest rate of alcohol.--An individual may not
         drive, operate or be in actual physical control of the
         movement of a vehicle after imbibing a sufficient amount
         of alcohol such that the alcohol concentration in the
         individual's blood or breath is 0.16% or higher within two
         hours after the individual has driven, operated or been in
         actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802.

      Instantly, the jury was presented with enough evidence to find all of

the elements of these DUI offenses beyond a reasonable doubt. Specifically,

the Commonwealth presented Appellant’s blood test results, the testimony

of Mr. Medved, who was involved in an automobile accident with Appellant,

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and the testimony of Trooper Laureto, who arrested Appellant soon after the

accident.    Mr. Medved testified that Appellant drove into his lane of traffic

and struck Mr. Medved’s vehicle. Further, Mr. Medved testified that either

Appellant or his passenger asked Mr. Medved not to call 911, and that

Appellant wrote down a phone number in an illegible manner.               After

Appellant left the accident scene, Mr. Medved followed him to obtain

insurance information and called 911 to report the accident.           Trooper

Laureto then encountered Appellant at his home and found him to be

stumbling and belligerent only twenty-nine minutes after the accident.

Trooper Laureto also testified that Appellant’s speech was slurred and his

eyes appeared to be glassy. Appellant’s blood test that indicated a BAC of

.198% was conducted at 9:55 p.m., which was less than one and a half

hours after he was seen driving the vehicle at 8:30 p.m.         Further, both

parties stipulated to the results of Appellant’s chemical tests, and Appellant

did not raise any challenge to the timing or the equipment used for testing

at trial.5

       Mr. Medved testified that he did not notice Appellant smelling of

alcohol or exhibiting other physical manifestations of intoxication at the
____________________________________________


5
  Because Appellant did not challenge the timing or the equipment used for
testing at trial, this argument is waived. See Commonwealth v. Ballard,
80 A.3d 380, 400 (Pa.2013) cert. denied, 134 S.Ct. 2842 (2014) (holding
appellant’s arguments were waived because appellant failed to object at
trial). See also Pa.R.A.P. 302.




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accident scene.    Mr. Medved also testified, however, that Appellant was

driving erratically, struck his automobile, and wrote down an illegible phone

number.     This testimony, together with Trooper Laureto’s testimony about

Appellant’s obvious intoxication twenty-nine minutes after the accident and

Appellant’s blood test results, were circumstantial evidence that Appellant

was intoxicated while he was driving a vehicle. The jury was free to believe

this evidence, and it obviously chose to do so.      Thus, Appellant’s implicit

challenge to the sufficiency of the evidence fails. See Hansley, supra.

      We now address Appellant’s contention that the jury’s verdict was

contrary to the weight of the evidence.     Appellant argues the jury should

have believed Appellant’s friend, who testified that Appellant only drank

alcohol while visiting him after the accident.     Appellant claims the jury’s

decision to credit the circumstantial evidence of Appellant’s intoxication while

driving, instead of the direct evidence of his friend, was shocking.        We

disagree.

      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
            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

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         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).

      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 to shock one's sense of justice” should a trial court afford a

defendant a new trial. Id. A weight of the evidence claim concedes that the

Commonwealth         introduced     sufficient   evidence.   Commonwealth       v.

Charlton, 902 A.2d 554, 561 (Pa.Super.2006), appeal denied, 911 A.2d 933

(Pa.2006).

      Here, the jury had the opportunity to assess the credibility of the

witnesses    and   consider   all    the   evidence   presented.   As   previously

mentioned, the Commonwealth provided sufficient evidence for the jury to

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find all elements of Appellant’s crimes beyond a reasonable doubt.          The

verdict was not so contrary to the evidence as to shock one’s sense of

justice. Therefore, the trial court properly exercised its discretion in denying

Appellant’s challenge to the weight of the evidence. See Devine, supra.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




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