Opinion
J-S27039-18 No. 3738 EDA 2017
07-23-2018
COMMONWEALTH OF PENNSYLVANIA v. THOMAS M. KERICK, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 5, 2017
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007172-2016 BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J. MEMORANDUM BY DUBOW, J.:
Appellant, Thomas M. Kerick, Jr., appeals from the Judgement of Sentence entered following his conviction of, inter alia, DUI-General Impairment/Incapable of Safe Driving. After careful review, we affirm on the basis of the trial court's Opinion.
The relevant facts and procedural history, as gleaned from Notes of Testimony and the trial court's Opinion, are as follows. On March 12, 2016, Appellant, the driver of a motorcycle, was involved in a single-vehicle accident. Officer Jay Nakahara of the Upper Merion Township Police Department was dispatched to the scene. Upon his arrival, he observed a motorcycle, later identified as belonging to Appellant, lying on its side in the middle of Crooked Lane. At this location, Crooked Lane slopes slightly and makes a sharp, 90-degree turn to the right.
Officer Nakahara testified that, to navigate this notorious turn safely, a driver must "slow down significantly." N.T., 5/18/17, at 10, 15.
Approximately 15-20 feet away, Officer Nakahara found Appellant lying face down in a wooded area. Appellant was initially unresponsive and had a bleeding head wound. Officer Nakahara approached Appellant to ascertain his condition and render medical care, whereupon he detected a strong odor of alcohol on Appellant's breath. Appellant was initially unresponsive, but regained consciousness within approximately a minute of Officer Nakahara's arrival.
After Appellant regained consciousness, Officer Nakahara questioned him. Appellant responded with only one-word answers and his speech was slow and slurred. Officer Nakahara suspected that Appellant had been driving under the influence, but because of Appellant's medical condition and possible serious head injury, he did not conduct any field sobriety tests. Ultimately, paramedics airlifted Appellant to the hospital.
Appellant lived approximately a mile from the scene of the accident. The weather that evening was cool, clear, and dry. There was nothing in the road that would have created a hazard to drivers. From the position of the motorcycle in the middle of the road, Officer Nakahara did not believe that Appellant had swerved to avoid a hazard.
Police charged Appellant with a number of offenses arising from the accident, including, relevant to the instant appeal, DUI-General Impairment.
Appellant proceeded to a bench trial at which only Officer Nakahara testified. At the conclusion of the trial, the court found Appellant guilty. Appellant filed a timely Post-Trial Motion in which he challenged the sufficiency and weight of the evidence. The trial court denied Appellant's Motion.
The court also convicted Appellant of the summary offenses of Careless Driving, Use of Improper Class of License, Not Wearing Proper Headgear, and No Eye Protection. See 75 Pa.C.S. §§ 3714(a); 1504(a); 3525(a); and 3525(b), respectively. Appellant is not challenging those convictions on appeal.
This appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Was the evidence presented at trial insufficient as a matter of law to convict [Appellant] of DWI (General Impairment) and Reckless/Careless Driving?Appellant's Brief at 4.
2. Did the [t]rial [c]ourt commit an abuse of discretion by denying Appellant['s] [M]otion for a [N]ew [T]rial based upon weight of the evidence?
Appellant first challenges the sufficiency of the evidence supporting his conviction for DUI-General Impairment. Appellant avers that the quality and quantity of the Commonwealth's evidence, as set forth supra , is insufficient to sustain his conviction. He posits that the Commonwealth's evidence that his speech was slurred and that he gave only one-word answers to Officer's Nakahara's questions was equally consistent with a head injury as it was with intoxication. Id. at 8. He argues that the only proffered evidence of his inability to operate his motorcycle safely was the accident itself. Id. at 11. Thus, he concludes the court based its verdict entirely on "conjecture[] and suspicion." Id.
Although Appellant purports to also appeal from his Reckless/Careless Driving conviction in this issue, Appellant has not presented any argument, other than a passing reference to the fact of the conviction, in support of this claim in his Brief to this Court. Thus, for appellate review purposes, Appellant has abandoned this claim. Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (concluding that the failure to properly include a developed argument in an appellate brief constitutes waiver).
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). "We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and citations omitted). "Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence." Id. "In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder." Id.
Appellant challenges the sufficiency of the evidence supporting his conviction for DUI-General Impairment/Incapable of Safe Driving. A person is guilty of DUI-General Impairment if he "drive[s], operate[s,] or [is] in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that [he] is rendered incapable of safely [doing so]." 75 Pa.C.S. § 3802(a)(1).
We have thoroughly reviewed the Certified Record, the parties' Briefs, the applicable law, and the well-reasoned trial court Opinion, and conclude that the trial court did not err as a matter of law in finding that the Commonwealth presented sufficient evidence to sustain Appellant's conviction. The trial court ably disposes of this issue with citation to relevant authority and the record and we affirm on the basis of that Opinion. See Trial Ct. Op., 12/26/17, at 2-5 (concluding that: (1) the evidence, when viewed in the light most favorable to the Commonwealth as the verdict-winner, established that Appellant "had imbibed significant alcohol based on the strong odor of alcohol on his breath and slurred speech[;]" and (2) based on the totality of the circumstances, the evidence was sufficient to establish that the alcohol caused Appellant to be unable to safely operate his motorcycle).
Appellant also challenges the court's verdict as against the weight of the evidence. Appellant's Brief at 12-13. Appellant claims that the trial court erred in weighing Officer Nakahara's testimony about Appellant's slurred speech and the odor of alcohol on his breath more heavily than the testimony about the inherent dangers of travelling on Crooked Lane. Id. at 12-13. Appellant also faults the court for not crediting his theory that his slurred speech was caused by his head injury and not from his alcohol consumption. Id. at 12-13.
Initially, we note that "[t]he 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." Commonwealth v. Champney , 832 A.2d 403, 408 (Pa. 2003) (citations omitted).
A trial court reviewing a challenge to the weight given the evidence may grant relief only if "the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013).
The trial court's denial of a weight claim "is the least assailable of its rulings." Commonwealth v. Diggs , 949 A.2d 873, 880 (Pa. 2008). See also Commonwealth v. Morgan , 913 A.2d 906, 909 (Pa. Super. 2006) (stating that because the trial court "is in the best position to view the evidence presented," an appellate court will give that court "the utmost consideration" when reviewing its weight determination). "Where . . . the judge who presided at trial 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." Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014) (citation omitted). This Court is instead limited to evaluating only the trial court's exercise of discretion in denying that claim. Id.
"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." Id. As our Supreme Court has made clear, reversal is only appropriate "where the facts and inferences disclose a palpable abuse of discretion[.]" Id.
After a thorough review of the record, the Briefs of the parties, the applicable law, and the comprehensive and well-reasoned Opinion of the trial court, we discern no abuse of discretion and conclude that there is no merit to Appellant's weight of the evidence claim. See Trial Ct. Op. at 5-6 (concluding that the evidence was not so vague and tenuous that the verdict shocks the conscious or is against the weight of the evidence).
Accordingly, we affirm on the basis of the trial court's December 26, 2017 Opinion. The parties are instructed to attach a copy of the trial court's December 26, 2017 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/23/18
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