Com. v. Sidhu, V. ( 2014 )

J-A18030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VIKRAM S. SIDHU
Appellant No. 774 MDA 2013
Appeal from the Judgment of Sentence of April 2, 2013
In the Court of Common Pleas of Juniata County
Criminal Division at No.: CP-34-SA-0000012-2013
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 21, 2014
Vikram Sidhu appeals the April 2, 2013 judgment of sentence, which
was imposed after Sidhu was convicted of the summary offense of driving
while operating privilege is suspended or revoked DUI related, 75 Pa.C.S.
§ 1543(b)(1). Sidhu challenges the weight of the evidence presented at trial
to convict him of this crime. We affirm.
The trial court set forth the factual history of this case as follows:
[Sidhu] was found guilty of committing the summary offense of
driving while operating privilege is suspended or revoked[ ]DUI
related, in violation of [section 1543(b)]. In relevant part, the
statute reads as such:
A person who drives a motor vehicle on a highway or
trafficway of this Commonwealth at a time when the
condition of acceptance of Accelerated Rehabilitative
Disposition for a violation of section 3802 . . . shall, upon
conviction, be guilty of a summary offense and shall be
sentenced to pay a fine of $500 and to undergo
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imprisonment for a period of not less than 60 days nor
more than 90 days.
[] 75 Pa.C.S. § 1543(b)(1).
At trial, the Commonwealth entered into evidence a Certified
Driver History Report [that was] prepared [on] December 17,
2012.
privileges were suspended on the date in question (December
14, 2012) in relation to a previous violation of the Vehicle Code,
namely § 3802(c), driving under the influence of alcohol or
controlled substances.
Additionally, the Commonwealth offered as witnesses two county
probation officers, both of whom: 1) are familiar with [Sidhu]; 2)
saw him enter a vehicle on December 14, 2012; and 3) saw him
proceed to drive that vehicle on a public street in Juniata
County, Pennsylvania.
On the day in question, [Sidhu] met with Probation Officer
Abigail Krepps at her office in Juniata County. Krepps was aware
After this meeting, Krepps was unable to verify that [Sidhu] had
arranged for a friend to provide transportation (as he had
indicated). Krepps and a second probation officer (P.O. Jeremy
Kensinger) decided to investigate further. Like Krepps,
Kensinger was familiar with [Sidhu], having recently taught an
Alcohol Highway Safety School class in which [Sidhu]
participated.
Krepps and Kensinger both testified at trial that they witnessed
[Sidhu] enter into a vehicle and drive away. The officers
positively identified [Sidhu], and testified that he was in control
of a motor vehicle on a public street in Juniata County,
Pennsylvania.
Krepps testified that when [Sidhu] entered the vehicle, she was
only thirty (30) yards away. Kensinger testified that he was
near Krepps when he saw [Sidhu] enter the vehicle, and
estimated that they were approximately thirty (30) to forty (40)
yards away.
-4 (citations to notes of
testimony omitted).
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At the conclusion of a de novo summary trial, the trial court found
Sidhu guilty of the crime charged. On April 2, 2013, the trial court
sentenced Sidhu to serve seventy-five days in jail and to pay a fine of $500.
On April 30, 2013, Sidhu filed a notice of appeal. On May 7, 2013, the trial
court directed Sidhu to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On May 28, 2013, Sidhu timely
complied. On July 17, 2013, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
the lower
court abused its discretion in finding [Sidhu] guilty since the verdict was
must consider whether Sidhu has waived the claim for failure to include it in
his Rule 1925(b) statement. We must abide by the bright line rule that
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(citing Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). In his
Rule 1925(b) statement, Sidhu raised the following two issues:
1. The Court erred and/or abused its discretion in finding
[Sidhu] guilty at his trial. [Sidhu] maintains that the
evidence at his trial was not sufficient to establish with
respect to either Abbey Krepps, Terry Stoner, or Jeremy
suspension, DUI related, in that one or more of the witnesses
lost sight of [Sidhu] during the alleged commission of this
charge.
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2. Witnesses also testified that they were at some distance from
the alleged crime which would also give rise to reasonable
doubt for which the Court abused its discretion in finding
[Sidhu] guilty. [Sidhu] avers that there was insufficient
evidence, therefore, to find him guilty.
Rule 1925(b) Statement, 5/28/2013, at 1-2 (emphasis added).
At first glance, it appears that Sidhu raised a challenge only to the
sufficiency of the evidence. However, upon closer inspection, the thrust of
at least a portion of the issues raised by Sidhu represents a challenge to the
weight of the evidence. We first note the differences between a challenge to
the weight and a challenge to the sufficiency of the evidence, as our
Supreme Court explained them in Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000):
The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, Tibbs v. Florida,
457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604(Pa. 1983), whereas a claim challenging the weight of the
evidence if granted would permit a second trial. Id.A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Commonwealth v. Karkaria, 625 A.2d
1167 (Pa. 1993). Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. Commonwealth v. Santana,
333 A.2d 876 (Pa. 1975). When reviewing a sufficiency claim
the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
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of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991).
A motion for 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. Commonwealth v.
Whiteman, 485 A.2d 459 (Pa. Super. 1984). Thus, the trial
court is under no obligation to view the evidence in the light
most favorable to the verdict winner. Tibbs, 457 U.S. at 38 n.
11. An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.
Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994). 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. Thompson v. City of
Philadelphia, 493 A.2d 669, 673 (Pa. 1985). A trial judge must
do more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
greater weight that to ignore them or to give them equal weight
Id.Widmer, 744 A.2d at 751-
evidence challenge concedes that sufficient evidence exists to sustain the
verdict but quest Commonwealth v.
Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (quoting Commonwealth v.
Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005)).
Rule 1925(b) statement, a closer review reveals that the true nature of his
claim is a challenge to the weight of the evidence. Indeed, Sidhu claimed
that the critical trial witnesses lost sight of him after he left the probation
office, and that those witnesses were unable to observe what they claimed
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at trial to have observed due to the considerable distance from which they
were viewing Sidhu. Stated otherwise, Sidhu did not claim that the
evidence, as presented at trial, did not amount to proof beyond a reasonable
doubt. Rather, Sidhu claimed that such evidence should not have been
believed due to either a loss in visual contact or the distance from which the
Lewis, supra. Sidhu also sought review of those claims under an
abuse of discretion standard, which as we detail below, is the proper
standard of review for a challenge to the weight of the evidence.
We caution counsel to avoid conflating these issues in the future, and
to utilize the proper terminology in order to, at minimum, avoid the risk of
-advised and inartful use of the words
weight of the evidence into a challenge to the sufficiency of the evidence.
evidence to be waived. We now turn to the merits of that issue.1
____________________________________________
1
Typically, to preserve a challenge to the weight of the evidence, the
issue first must be raised in a post-sentence motion. Commonwealth v.
Griffin, 65 A.3d 932, 938 (Pa. Super. 2013). However, post-sentence
motions are not permitted following a judgment of sentence issued following
a summary trial. See -
sentence motion in summary case appeals following a trial de novo in the
Court, even though he did not file a post-sentence motion raising a weight
challenge in the first instance.
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When reviewing a weight of the evidence claim, we consider the
following:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Widmer, 744 A.2d at 751-52; Brown, 648
A.2d at 1189. 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. Widmer,
clearly of greater weight that to ignore them or to give them
Id. at 320,
744 A.2d at 752 (citation omitted). It has often been stated that
contra
the award of a new trial is imperative so that right may be given
Brown, 648 A.2d at 1189.
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Brown, 648 A.2d at 1189. Because the trial judge has
had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
s determination
that the verdict is against the weight of the evidence.
Commonwealth v. Farquharson, 354 A.2d 545 (Pa.
1976). One of the least assailable reasons for granting or
verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of
justice.
Widmer, 744 A.2d at 753 (emphasis added).
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Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations
modified).
Our task in evaluating a weight challenge is as follows:
palpable abuse of discretion, an appellate court must examine
the record and assess the weight of the evidence; not however,
as the trial judge, to determine whether the preponderance of
the evidence opposes the verdict, but rather to determine
whether the court below in so finding plainly exceeded the limits
of judicial discretion and invaded the exclusive domain of the
jury. Where the record adequately supports the trial court, the
trial court has acted within the limits of its judicial discretion.
Brown, 648 A.2d at 1190 (citation omitted).
Sidhu contends that the trial court should not have believed either
into the car and
drove away actually was Sidhu. Sidhu points to the fact that, during cross-
Notes of T
Kensinger could not positively identify Sidhu as the driver of the vehicle
either, because Kensinger returned to the probation office upon seeing Sidhu
before Sidhu ever entered a vehicle. Thus, Sidhu argues, Kensinger could
not have seen him enter the car and drive away. In light of these
contradictions and deficiencies, Sidhu argues that the verdict that
necessarily was predicated upon a positive identification of him as the driver
was against the weight of the evidence. We disagree.
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testify to the above-quoted statement. However, that statement was in
reference to her observations once the car drove away. Regarding her
identification of Sidhu entering the car and driving away, Krepps testified as
follows:
[w]hen he when I saw him walking around behind the car, I
saw his back. But then he walked the car was parked facing
me. He walked behind the back of the car and turned around, so
then he was actually facing me as he got into the car and then
the car was facing me, so I could see him, his face, and he was
[behind] the wheel.
N.T. at 17.
Kensinger also made a positive identification of Sidhu. Kensinger
knew Sidhu from teaching an alcohol awareness class, in which Sidhu was a
student. On the date in question, Kensinger observed Sidhu walking down
the street and past the probation office. Although Kensinger immediately
went back into the probation office, he returned to the street shortly
thereafter with Krepps. From approximately thirty to forty yards, Kensinger
and Krepps watched Sidhu enter his vehicle and hastily drive it away. N.T.
at 28.
In sum, the trial court received evidence, including (inter alia)
testimony from probation officers Krepps and Kensinger, identifying Sidhu as
the person who entered the vehicle and drove away. The trial court
observed these witnesses, assessed their testimonial demeanor, and
determined that it would credit their reports. The record amply supports the
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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