Com. v. West, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY WEST, JR. :
:
Appellant : No. 2077 MDA 2019
Appeal from the Judgment of Sentence Entered August 21, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000977-2017
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED MAY 08, 2020
Anthony West, Jr. (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of driving under the influence (DUI) of a
controlled substance and DUI combination of a controlled substance and
alcohol, and the trial court convicted him of operating a motor vehicle while
his driving privileges were suspended.1 Upon review, we affirm.
The trial court summarized the procedural history as follows:
This matter arose on February 4, 2017, when [Appellant] was
arrested and charged at Count 1 with DUI - Combination of
Controlled Substance and Alcohol, at Count 2 with DUI -
Controlled Substance Schedule 1, and at Count 3 with Operating
a Motor Vehicle - Privileges Suspended. On April 26, 2018, a
bench warrant was issued for Appellant’s apprehension after he
failed to appear for Call of the List. On September 24, 2018,
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802 and 1543.
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Appellant was detained pursuant to the bench warrant issued and
Appellant’s bail was then increased. . . .
On July 23, 2019, a trial by jury was had. [The jury and
trial court entered their verdicts, and the trial court sentenced
Appellant on August 21, 2019]. On August 28, 2019, Appellant
filed a Post - Sentence Motion. On September 5, 2019, by order
of this [c]ourt, a hearing on Appellant’s Motion was scheduled.
The hearing was ultimately cancelled, as communications between
the [c]ourt, the Commonwealth, and Appellant established that
the Commonwealth did not intend to file a brief and Appellant
intended to rest on his Post-Sentence Motion filing. On November
21, 2019, this [c]ourt denied Appellant’s Post-Sentence Motion.
On December 19, 2019, Appellant filed a notice of appeal to
the Superior Court of Pennsylvania and this [c]ourt issued an
order, pursuant to Pa.R.A.P. 1925, directing Appellant to submit
his Concise Statement of Matters Complained Of by January 9,
2020. On December 30, 2019, Appellant submitted his Concise
Statement, citing one issue.
Trial Court Opinion, 1/20/20, at 1-2 (footnotes omitted).2
Appellant presents the following issue on appeal:
1) Did the trial court err by finding that the jury’s verdicts were
not against the weight of the evidence?
Appellant’s Brief at 4.
Appellant argues that the jury convicted him of DUI, contrary to the
weight of the evidence, because “the [arresting police] officer never saw
Appellant driving” and “could not say whether Appellant was driving or there
was another occupant of the car.” Appellant’s Brief at 8-9. Appellant also
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2In its Rule 1925(a) opinion, the trial court stated that “the issue raised by
Appellant on appeal mimics the claim raised in [his] Post-Sentence Motion.
We accordingly direct the Superior Court to the attached Opinion [dated
November 21, 2019] denying [Appellant’s] Post-Sentence Motion.” Trial Court
Opinion, 1/20/20, at 3.
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argues that the verdicts were against the weight of the evidence because “the
neighbor who said they saw [Appellant] get out of the vehicle was not
credible.” Id. at 9. Appellant states that the neighbor, Mr. Clair O’Donnell,
“never saw his face,” where he viewed the driver from a distance of 55 feet,
exit the car in the dark, and Mr. O’Donnell specifically testified that he never
saw the person’s face. Id. Finally, Appellant cites his own trial testimony that
he did not drive his car that night, and the testimony of William Brooks, who
testified that he, Mr. Brooks, drove the car. Id. at 10.
We begin our analysis with our standard of review:
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. 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 trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the [trial] 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. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). The trial court abuses
its discretion “where the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill-will.” Horne, 89 A.3d at 285-86 (citation
omitted). For an appellant to prevail on a weight claim, “the evidence must
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be so tenuous, vague and uncertain that the verdict shocks the conscience of
the court.” See Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super.
2003) (citation omitted).
Appellant was convicted of DUI and driving while his privileges were
suspended, which obviously require that Appellant was driving. See 75
Pa.C.S.A. §§ 3802 and 1543. The trial court observed:
[Appellant] claims that the Commonwealth’s assertion that he was
the driver of his own vehicle on February 4, 2017 is against the
weight of the evidence. Because one element of each of the []
offenses for which he was convicted is that he was driving a
vehicle, [Appellant] claims he should be given a new trial.
Trial Court Opinion, 11/21/19, at 3. The trial court stated that Mr. O’Donnell
testified to seeing only one person exit the BMW owned by Appellant. Id. The
trial court also referenced the testimony of Chambersburg Police Officer Cole
Baker, who testified that he was only going to cite Appellant for driving with
suspended privileges until he smelled alcohol on Appellant and asked him to
perform field sobriety tests. Id. at 3-4.
Our review supports the trial court’s determination that Appellant’s
convictions are not against the weight of the evidence. Mr. O’Donnell testified
that although he could not identify who exited Appellant’s car, he only saw
one individual get out of the vehicle. N.T., 7/23/19, at 18. The police officer,
Cole Baker, testified to driving by Appellant’s car and recognizing it as a “black
BMW with gold rims.” Id. at 31. Because Officer Baker recognized Appellant’s
car and knew that Appellant’s license was suspended, he followed the BMW
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into an alley. Id. After turning into the alley, Officer Baker saw that the dome
light of the car was on but no one was in the car; however, he saw someone
walking away from the car. Id. at 33. As he got closer, Officer Baker
“immediately recognized” Appellant. Id. He testified:
Nobody else was in that immediate area at the time. . . .
[Appellant] was confrontational. I was just going to write him a
citation and get him on his way. I filled out the citation and was
going to get out—I got out of my vehicle and gave him a copy of
the citation. When I had gotten out of my vehicle and made
contact with him to give him a copy of the citation, I could smell
alcohol . . . from his person. His eyes were glassy and bloodshot.
. . . He did make the admission that he was at least around alcohol
at his friend’s house.
Id. at 33-34.
Officer Baker administered field sobriety tests (including the walk and
turn, convergence, Romberg balance, and modified Romberg3), all of which
indicated that Appellant was impaired. Id. at 35-38. The Commonwealth
played and introduced into evidence the motor vehicle recording (MVR) of
Officer Baker’s interaction with Appellant. Id. at 43; Commonwealth Exhibit
2. After Officer Baker arrested Appellant, he transported him to
Chambersburg Hospital for a blood test. Appellant did not challenge the
results of the test.
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3Officer Baker testified that during the modified Romberg test, he looks at the
person’s tongue, which shows “after you recently smoked marijuana, you get
a white pasty film over your tongue. It coats your entire tongue. Over the
white film is a kind of greenish tint . . . [Appellant] had that on his tongue
when I had him stick out his tongue.” N.T., 7/23/19, at 39.
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Appellant and William Brooks testified in Appellant’s defense. Mr.
Brooks testified that he had been friends with Appellant “for eight or nine
years,” and was with Appellant on the night of February 4, 2017. N.T.,
7/23/19, at 84-85. Mr. Brooks said he drove Appellant’s car that night
because he had a valid license and Appellant did not.4 Id. at 86. Mr. Brooks
testified that he drove to and parked in the alley because he “live[s] right
there.” Id. at 87. Mr. Brooks stated that he then went to his house and
Appellant “went about his way.” Id.
Appellant testified that on the evening of February 4, 2017, he was with
Mr. Brooks, and drank less than one beer when the two men drove to get
cigarettes. Id. at 98. Appellant stated that Mr. Brooks was driving when
Appellant received a call from his girlfriend, which caused Appellant to tell Mr.
Brooks to stop the car in the alley. Id. at 99. Appellant testified that his
pregnant girlfriend was having stomach pains, and he told Mr. Brooks to park
in the alley so Appellant could “run to my house.” Id. at 101. Appellant said,
“He went his way, I went mine.” Id.
This evidence does not support Appellant’s weight claim. This Court
may not substitute our judgment for that of the factfinder — whether the jury
or the trial court — because it is the province of the factfinder to assess the
credibility of the witnesses. See Commonwealth v. DeJesus, 860 A.2d 102____________________________________________
4When called on re-direct, Officer Baker testified that on February 4, 2017,
Mr. Brooks did not have a valid driver’s license. N.T., 7/23/19, at 107-08.
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(Pa. 2004); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an
appellate court is barred from substituting its judgment for that of the finder
of fact.”). “When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s decision is
extremely limited. Generally, unless the evidence is so unreliable and/or
contradictory as to make any verdict based thereon pure conjecture, these
types of claims are not cognizable on appellate review.” Commonwealth v.
Fortson, 165 A.3d 10, 16 (Pa. Super. 2017), citing Commonwealth v.
Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004).
In sum, there is no merit to Appellant’s self-serving weight claim
assailing the credibility of the witnesses. The testimony of Mr. O’Donnell and
Officer Baker supports the determinations of the jury and the trial court that
Appellant drove his car on February 4, 2017, and was guilty of DUI and
operating a motor vehicle while his driving privileges were suspended. The
verdicts do not shock one’s sense of justice, and therefore, the trial court did
not commit an abuse of discretion in denying Appellant’s weight claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/08/2020
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