Com. v. Kohli, H. (memorandum)

Annotate this Case

Download PDF

J-S75035-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. HEMANT KOHLI, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 101 EDA 2016 Appeal from the Judgment of Sentence entered on October 21, 2013 in the Court of Common Pleas of Chester County, Criminal Division, No(s): CP-15-CR-0000569-2013 BEFORE: BOWES, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 10, 2017 Hemant Kohli (“Kohli”) appeals, nunc pro tunc, from the judgment of sentence imposed following his conviction of driving under the influence (“DUI”). See 75 Pa.C.S.A. § 3802(a)(1). We reverse and remand for resentencing. The trial court has set forth an extensive recitation of the underlying facts in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 3/10/16, at 4-19. On August 6, 2013, following a jury trial, Kohli was found guilty of one count of DUI. The jury also found that Kohli had refused to submit to a blood test. On October 21, 2013, the trial court sentenced Kohli to 18 to 36 J-S75035-16 months in prison, followed by two years’ probation.1 Kohli did not file a direct appeal. On September 8, 2014, Kohli filed a counseled Post Conviction Relief Act (“PCRA”)2 Petition. On December 3, 2015, with agreement of the Commonwealth, the PCRA court entered an Order granting Kohli the right to file a nunc pro tunc direct appeal. Thereafter, Kohli filed a nunc pro tunc appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement. On appeal, Kohli raises the following questions for our review: 1. Whether the evidence was insufficient as a matter of law to sustain [Kohli’s] conviction for [DUI]? 2. Did the Common Pleas Court [err] in imposing a minimum mandatory sentence? Brief for Appellant at 2. In his first claim, Kohli contends that the evidence was insufficient to support his conviction. Id. at 7. Kohli argues that he only had one drink approximately seven hours prior to the vehicle stop; when he stopped his vehicle at the stop sign, the vehicle only slightly went past the sign; he was able to pull over when the officer engaged his emergency lights; and there was no other evidence of erratic driving. Id. at 8-9. Kohli asserts that he 1 At sentencing, the trial court noted that the conviction at issue in this case was Kohli’s third DUI conviction in a ten-year period. N.T., 10/21/13, at 5, 9. 2 See 42 Pa.C.S.A. §§ 9541-9546. -2- J-S75035-16 passed the first field sobriety test and only exhibited signs of impairment on the “walk and turn test and [the] one leg test.” Id. at 9. Kohli further denies that he slurred his speech, had bloodshot eyes, admitted to drinking alcohol, or engaged in any extreme behavior. Id. Rather, Kohli claims that he was coherent at the time of the stop. Id. Kohli also contends that there was no blood alcohol or drug testing conducted to demonstrate that he was under the influence. Id. Kohli argues that he refused to submit to a blood test because he was battling a skin disorder and was prone to infection from a needle. Id. Kohli asserts that he should have been provided an alternative chemical test, and that such a test could have rebutted the Commonwealth’s allegations. Id. at 9-10. The trial court set forth the relevant law, addressed Kohli’s sufficiency claim and determined that it is without merit. 3/10/16, at 2-21. See Trial Court Opinion, We adopt the trial court’s sound reasoning for the purpose of this appeal. See id. In his second claim, Kohli contends that his mandatory minimum sentence was illegal based upon Alleyne v. United States, 133 S. Ct. 2151 (2013). Brief for Appellant at 11.3 Kohli argues that his sentence is illegal 3 Kohli’s failure to include this legality claim in his Rule 1925(b) Concise Statement does not result in waiver. See Commonwealth v. Henderson, 938 A.2d 1063, 1065 n.1 (Pa. Super. 2007) (stating that appellant’s failure to include a legality of sentence challenge in his Rule 1925(b) concise statement did not result in waiver, as such a claim cannot be waived where jurisdictional requirements are met). -3- J-S75035-16 because the jury did not find beyond a reasonable doubt all facts necessary to require imposition of a mandatory minimum sentence. Id.4 Section 3804(c)(3) states the following: (c) Incapacity; highest blood substances.--An individual who violates refused testing of blood or breath or an section 3802(c) or (d) shall be sentenced alcohol; controlled section 3802(a)(1) and individual who violates as follows: *** (3) For a third or subsequent offense, to: (i) undergo imprisonment of not less than one year; (ii) pay a fine of not less than $2,500; and (iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815. 75 Pa.C.S.A. § 3804(c)(3). Here, the mandatory minimum sentence was imposed based upon Kohli’s prior convictions, his violation of section 3802(a)(1), and his failure to consent to a blood test. See N.T., 8/6/13, at 63-64. Prior to addressing Kohli’s claim on appeal, we will first determine whether the imposition of the mandatory minimum sentence violated the recent United States Supreme 4 We note that Kohli does not identify the “fact” that the trial court utilized in imposing the mandatory minimum sentence. See Pa.R.A.P. 2119(a) (stating that the argument must contain “such discussion and citation of authorities as are deemed pertinent.”). Here, Kohli was subject to the mandatory minimum sentence under 75 Pa.C.S.A. § 3804(c)(3). See N.T., 10/21/13, at 21. -4- J-S75035-16 Court holding in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).5 In Birchfield, the Supreme Court concluded that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” Birchfield, 136 S. Ct. at 2185. Additionally, the Supreme Court held that blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy. Id. at 2186. The Supreme Court stated that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id.; see also id. (concluding that the petitioner could not be convicted of refusing a warrantless blood draw following an arrest for driving under the influence). As the Birchfield Court held that the practice of criminalizing the failure to consent to blood testing following a driving under the influence arrest was unconstitutional, the trial court improperly relied upon section 3804(c)(3) in imposing a mandatory minimum sentence upon Kohli. Because there was no statutory authority to impose the sentence, we must reverse the sentence and remand for resentencing.6 5 We note that sentencing issues which implicate a court’s statutory authority to impose a sentence implicates the legality of sentence. Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011). While this issue was not raised by the trial court, the Commonwealth, or Kohli, it is wellsettled that legality of sentence questions may be raised sua sponte by this Court. Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). 6 Based upon our disposition, we need not further address Kohli’s bald Alleyne challenge. -5- J-S75035-16 Judgment of sentence reversed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/10/2017 -6- Case remanded for resentencing. Circulated 11/16/2016 02:57 PM 11 I COMMONWEAL TH OF PENNSYLVANIA IN THE COUR.T OF COMMON PL.EA.S CHESTER COUNTY, PENNSYLV/\NI/\ CRIMIN/\L ACTION NO. 569-'13 SUPERIOR CT. NO. 101 EDA 2016 $TATEfvlENT On December 30, 2015, 11 I,· Of TH!;__COUJ3I Defendant filed a timely appeal following the court's I i • 1,1 December 3, 2015 wanting of his nunc pro tune appeal request An appeal having been I II I taken, pursuant to Pa.RAP. ·J 925(a), l On August 6, 2013, a jury found Defendant guilty violation of 75 Pa.C.S.A of driving under the influence, in § 3802(a)(1 ). The jury also found that Defendant refused to submit to a blood test. lI II the following statement is submitted. Defendant was sentenced on October 21, 2013. On September 8, 2014, Defendant filed a Post Conviction Relief Act Petition. On II I f Se pte m be r 17, 2014, an Order was entered directing the C ommonwe a Ith to file an 11 Answer within 45 days. The Commonwealth filed an Answer on October 29, 2014. On !I March 4, 2015, an Order was entered directing Defendant to comply with 42 f:la.C.S.f-\. 11 9545(d).(1), which requires signed certifications from each intended witness when an I evidentiary hearing is requested. After Defendant I complied with the certification § requirement, an Order was entered on May 27, 2015, scheduling an evidentlary hearing to be held on June 24, 2015. On I j ! June 15, 2015, Defendant's request for a continuance of the hearing was granted and the l I I 11 ,I 1, !i I I hearing was rescheduled for August 3, 2015. 011 July 27, 20·15, Defendant's request for I II a continuance of the hearing was granted and the hearing was rescheduled for i On September 14, 2015, Defendant's request for a continuance of i September 16, 20'15. .I LI' Following the evidentiary hearing, and with the agreement of the Commonwealth, 11 I II the hearing was ~Jranted and the hearinq was rescheduled for October 13, 2015. an Order was entered on December 3, 2015 granting Defendant's request to file an I appeal nunc pro tune. On December 30, 20·1 s, Defendant filed a Notice of Appeal and included a Statement of Matters Complained of on Appeal. evidence Defendant alleges that the was insufficient to support the verdict and that the verdict was against the weight of the evidence.1 then address Vl/e wil first address the sufficiency of the evidence claim and the weight of the evidence claim. Sufficiencyof the Evidence: The standard for reviewing the sufficiency of the evidence is "whether the ! I j J I viewed in the !ight most favorable to the Commonwealth evidence, as verdict winner, is sufficient to enable the fact-finder to find every element of the crime beyond a I i reasonable doubt." ~ommonwealth citing Commonwealth v. Williams, v. Matthew, 909 A.2d 1254, 1256-57 (Pa. 2006), 896 A.2d 523, 535 (Pa. 2006), cert. denied, 127 S.Ct. II 1253 (2007), and Common1J>{g_,.:lith v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005), cert. I,' I denied, 547 U.S. 1058, 126 S.Ct. In addition, all reasonable 1659 (2006). inferences drawn from the evidence must be viewed in] 11 I, Ii the light most favorable to the Commonwealth. I 527, 530 (Pa.Super. 2007), quoting ~Qp,monwealth v. Earr!...8-.?1, 563 A.2cl 158, 159 I (Pa.Super. 11 ,· ······--·--···-·------ --· .. -·--····-····· ..· : Defendant's Statement of Matters Complained of on Appeal states "the judge's verdict of guilty,'' ,I 1989). ~omm_QlJ.Y:LEi~l!!J v. McCol!um, 926 A.2d "The test is whether the evidence, thus viewed, is sufficient to prove I I I' I I I ! i 11 2 I I; 'I l guilt beyond a reasonable doubt." iI §.werd low. 636 A. 2d 1173 (Pa .Super. 1994). "This standard is equally applicable to I I cases where the evidence is circumstantial rather than direct so long as the ' i combination of the evidence links the accused to the crime beyond a reasonable doubt." McCgJ!!J.rn. A conviction however, I I certainty. tv1cColiLHl1, 926 A.2d at 530, citing 9omrngnw~~l!h v. 926 A.2d at 530, quoting Swerdlow, must be based on more than mere suspicion or conjecture, the Commonwealth does not need to establish guilt to a mathematical fv1Q_~ol_[um, 926 A.2d at 530, quoting ,Con1n1onwealth v. Badman. 1367, 1372 (Pa.Super. the Comrnonwealth 1990). "Moreover, the facts and circumstances 580 lt2d by established need not preclude every possibility of innocence." Q.QJJllllQJlW??.l.tb. v. Marrero, 914 A.2d 870, 872 (Pa.Super. :!. 636 A.2d at 1 '176. A.2d 998, 1000 (Pa.Super. 2006), citing Commonwealth v. Bullick, 830 2003). ! i Tile court may not weiqh the evidence and substitute its judqment for the fact- i I 1 1. 11 j' I lei.:. "Any doubts regarding a defendant's quilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability I of fact may be drawn from the combined circumstances." [' I I finder. 1 jl,1arrero, 914 A.2d at 872, citing Commonwealth v. DiStefan_Q, 782 A.2d 574, 582 (Pa.Super. 2001). I. 806 A.2d 858 (Pa. 2002) When evaluating the credibility of lhe witnesses and evidence as well as the weiqht of the evidence, the fact-finder is free to believe I i ~~~,:~::: t::o~i.d::;e ::,:i:::t::4 :::,;::~::lt:o:;~::~t~:gB however. the verdict of guilty was found by a jury. not the judge. I ' app. denied, I 11 I! I 11 all, part, :o::;::~~:::~ I I I I 11 Stevenson, 894 A.2d 759, 77 3 (Pa .Super. 2006), app. denied, 917 A.2cl 846 (Pa, 11 I! ii lI, I 2007). testimony of one victim, if believed The uncorroborated by the trier of fact, is 11 I sufficient to convict a defendant, reasonable doubt. beyond a Q..9rn1T1011yve_9_Wl.Y,JY1s.£.ti, 850 A2cJ 690, 693 (Pa.Super. 2004), I .G.QtDrn211wea!tl1_v._D_~'{is, I if all the elements of a crime are established II citing\ I I 650 A.2d 452, 455 (Pa.Super. 1994), app. granted, 659 A.2ci I 11 11 557, affirmed, 674 A.2d 214 (Pa. ·1996). Hie Commonwealth II and Hie Defendant I presented two witnesses Fingin_g_$ of Fact:. I! II presented four witnesses. II I Officer David Warrl!e testified at trial that he had been a patrol officer with Caln I I i I I I Township Police Department for over eleven years. ! I Township II 'I I I (N.T., he served in three other police departments. fifteen years as a police officer. 8/5/13, p. 38). Id.,_ Overall, he had served over lei. Office Wardle testified that on January 1, 20·13, at approximately 5:20 AM, he was driving in an unmarked patrol vehicle northbound on Municipal ! Township, II one on Municipal I! Chester County. I l (l'.JT., 8/5/13, pgs. 3~J, 71 and 7l3). His vehicle was the oniy I I Drive at the time. stop sign at the intersection 76). 70). I: I Drive in Caln (N .T., 8/5/'l 3, p. 70). He stopped at the four 1Nay I, !I \ I 11 !I Prior to Caln of G.D. Carlson Boulevard. (NT, Out of habit, he had his vehicle window cracked open. 8/5/13, pqs. 39, 71 and on G.O. Carlson Boulevard. I I I (N.T., 8/5/13, pgs. 39 and While stopped, he heard a vehicle corning toward the intersection of speed; it was going eastbound I (N.T., at a high rate 8/5/13, pgs. 39-40 II I j I and71-72). I 11 iI i I 4 Specifically, he heard the sounds of the engine and the wheels on the road, which sounded like they were going fast. (!\LT., 8/5/13, p.40). I I Office Wardie testified i that he stayed stopped because II; he did not want to go through the intersection . .kl_ He observed the headlights cominq and they appeared to be corning at a high rate of I I speed. I I! 11 'I 1 • 19..:. Id..,_ The officer ciid not think the vehicle would stop. J\t the last second, the driver' applied the brakes and the vehicle came to a screeching antilock brakes can come to a screeching halt." I the brakes clicked on and off. kl halt, "as much as He heard the wheels chirping as J_~L. I Il II sign and into the intersection. 11 and C-2 as visual aids to demonstrate the roadways, the directions of travel and The officer testified that the vehicle did stop but that it was partially past the stop (f\J.T., 8/5i13, pgs. 40 and 73). I I I locations of his vehicle and Defendant's vehicle. ! (N.T, 8/5/13, pgs. 41-45). When I · He used Exhibits C-1 1 Defendant's · 1 I iI vehicle came to a stop, most of the vehicle had crossed over the stop line. (N.T., 8/5/'l 3, pgs. 45 and 73). Office VVardle initiated his emergency reel and blue lights, put his window down r ! the rest of the way and turned left onto G.O. Carlson Boulevard to pull up right next to I, J, Defendant's I vehicle. (N.T., 8/5/13, pgs. 45 and 77-78). The officer testified that he put \ his hand out the window in an open manner and motioned for Defendant to stop. (N.T., Ii 815/13, pgs. 45-46 and 78). I He wanted to get Defendant's attention to slop and talk lo I i him. (N.T., 8/5/13, I :1 ... ! 1, I p.45). He demonstrated in court how he signaled to Defendant, his left hand, the universal sign for stop. (N.T., 8/5/13, p.46). I I ! !, I, , ;, Officer Wardie id,3ntifieci Defendant as the driver of tile vehicle. (J-..J.T., 13/5/13, I/ . 11 c .• ! II pgs. 53-54). with J I I 11 Defendant failed to stop and accelerated eastbound at a high rate of speed. 11 I: I 11 i 11 Ii (N.T., 8/5/13, pgs. 46 and 78). three-point Officer Wardle kept his emergency lights on, made a turn to start following Defendant and activated his siren as well. (N.T., I Il I I j 11 I! 8/5/13, pgs. 46-t48). into the Thornridge development \ iI where Defendant stopped his vehicle and got out. (N.T., 8/5i13, pgs. 48, 54, 78 and I 80). I The officer followed Defendant I! ! 11 Officer Wardle stopped his patrol car behind Defendant's vehicle. (N.T., 8/5/13, 1 11 Ii 11 I p. 48). Defendant JI . II I II had exited nis vehicle and the officer instructed him to get back in the I i car. (N.T., 8/5/13, pgs. 48 and 52-53). Defendant failed to comply. (N.T., 8/5/13, ! I i i p.53). Defendant stated that he did not see the police vehicle at the stop sign. (N .T., ,· i 11 8/5/13, p. 188). Office Wardle observed that Defendant was unsteady on his feet when j 1 I ii standing, swaying frorn side to side, almost staggering. 1 81 ). il couple of times during the encounter. ,1. I ,, (N.T., 8/5/13, pgs. 53-54 and Defendant was not falling over, but the officer testified that he had to assist him a (N.T., 8/5/13, pgs. 54 and 81). The officer could 11 11 smell a strong odor of alcoholic beverage coming from Defendant. (N.T., 8/5/13, pgs. iI I 53-54). IJ I,' I regard to interacting with people that may be under the influence of alcohol. Officer \/Vardle described the training and experience he had received with 8/5/13, p. 55). He had training at the police academy for one year, including training in i DUI detection, field testing and how to properly stop a vehicle. I and 69-70). ii 1 · 8/5/B, p. 69). II 11 j l .I (N.T., 8i5tl 3, pgs. 55 Officer Wardle takes updated mandatory trnining once a year. (N.T., 11 I (N.T., 6 'I !11 i He had personally investigated 1, about 75 DUI cases and had assisted numerous 'I 1111 officers with their cases and field tests. (N.T, 8/5/13, p. 55). Also, during his 15 years 1 11 ,I as a police officer. he very frequently dealt with people who were under the influence oi 11 11 I! alcohol in non-DUI related settings. opportunity 11 I'I! In his personal life, he has frequently II had the to come into contact v,;ith people who are under the influence of alcohol. ld 0 Based on his training and experience, when he does a traffic stop Officer Wardle 11 1 r !I kl looks at the following for indicia of someone being under the influence of alcohol: " ... physical observations, how they move, how they talk, the look in their eyes, the things (N.T .. 8/5/'13. pgs. 55-56). I Officer Wardle testified that Defendant told him that he had a few drinks at a I 11 1, I: I I I that they say, the manner of their speech, whether it's slurred or clear." 11 I I 11 i I friend's house earlier and that he was trying to go home. (N.T., I I! I 8/5/13, p.56). The I i ·11I officer further testified that Defendant then asked him " ... numerous times if I knew who '1 he was I, Ii I He asked me numerous times, also, if we had reached the point in life that we were all losing. States. And then, again, he was going to be the next President of the United I l And he asked me if I would like him to have Obama call to verify it." ld"- I Defendant started making the statements almost immediately when the officer started I\ interacting with him, well before he was placed under arrest for DUL (N.T., 8/5/13, p. I I, 1 1 I 1 188). 11 I, I I Their encounter lasted a little over a half an hour and during that time, Defendant! I 11 asked the officer five or six times if he knew who Defendant was and that he would be 11 11 !I !I lii I the next President of the United States. i i j I !11 I I II I (N.T., 8/51'13, pgs. 56-57 and 188). Defendant I I I I I I I 11 i !l 11 also to!d him five or six times that he would have President Obama give the officer a I call. (N.T., 8/5/13, p.57):. Based on Officer Wardle's life experience he would not describe '\ Defendant as saying it in a joking or sarcastic manner. (N.T., 8/5/13, p. 188). It sounded like drunken I, rambling to the officer. Id. Based on his training and experience, the officer formed the j opinion that Defendant was under the influence ! 11 I1 of alcohol and/or drugs and that givin9 ! I I i 11 'I I I I ,I I 11 field sobriety tests would be appropriate. was based upon Defendant's (NT, 8/5/13, pgs. 57 and 82). This opinion unsteady gait, his swaying side to side; his cryptic questions; the things he Was saying, his slurred speech and the odor of alcohol. (N.T., I I iI 'II I! 8/5/13, I p.57). Officer Wardle testified that that he generally I Ir I I uses three field sobriety tests and I I' II he gave Defendant 58 and 83). First he asked Defendant to say the alphabet fine. I kl Next, the officer used two physical hold his balance I the three tests during the incident in question. and follow instructions. and Defendant tests to determine (f\J.T., 8/5/13, (N.T., 8/5/13, pgs. Defendant's recited it ability to p. 58). For the one leg stand test, Officer Wardle testified that he instructs suspects to I i stand with their feet together, I telling them. kl hands at their side so that they can focus on what he is Officer Wardle holds that position as well. Id. He stated, "[Tlhe instruction is to lift whichever 2,0 by thousands, I i.;!'• I I! 11 l foot you choose six inches off the ground, then count to two, 1,000. one, 1,000: wil count and say to three or four, just so they understand there is anything the test" kl He also asks if wrong with the suspect's legs, knees or hips that might prohibit doing I ! i the physical test. (N.T., :I ! And I do explain, not all the way to 30, but I 8/5/13, pgs. 59-60). I I . I B Officer Wardle demonstrated for the jury 1. I I 'I I 1I II ! i 11' I · 1 I I how he instructed fine in response to the question !'II i ! ! I about ht He testified that Defendant any !eg, knee or hip issues. said he was] (hJ.T., 8/5/13, p. 60). I 11 Defendant to do the test. The officer stated that ideal road conditions for field sobriety tests, would be a flat surface with no obstructions or gravel. (N.T., 8/5/'13, pqs. 58-59). incident in question, surface. I I During the I Defendant and Officer VVardle vvere on a good, flat, level, dry (N.T., 8/5/13, p. 59). ;I Ii l When asked howDefendant performed on the test, the officer responded, "[a]! I the count of three, he had to put his foot down for balance. He started over at the count i I of four. He had to put his foot down for balance again." (f\l.T., 8/5/'13, pgs. 60 and 83). At that point. 11 Defendant asked the officer if he could perform another test. (N .T., 11 I!!I r;r..1-1"',.::, • ..l _:1 11 .I II 6'0) . Officer Wardle explained the walk and turn test to Defendant. ! I, ·1 . I- demonstrated and described the morning in question. kl He the test to the jury as he had described it to Defendant on (N.T., 8/5/13, lIi ! again. would have them hold position. pgs. 60-61). Specifically, in a mirror position. the officer stated,"!, Have them put their right 11 IIii foot in front. i mirror the left foot in front of the right foot so there is no confusion, keep Ii Ii I hands at side while I explain the test. He is to walk hee! to toe nine steps, counting out with each step, turn, come back nine heel to toe steps. I II how to do (N.T., 8/5/13, p. 61). The officer testified that he did not recall if he demonstrated all nine steps for J I' it appropriately." 11 Defendant, 11 for him. it might have been five or six, but he did demonstrate Id. He demonstrated the steps and the turn\ for lhe jury how he showed Defendant how to make the II I I II 11 , 1 11 I. I will generali:/ demonstrate '.:J I !l Ii 1 11 i ! I I; i! turn, as a "pivot where you are, nothing extravagant," before taking the heel to toe steps lit Regarding Defendant's performance of the test, Officer Wardle stated that Defendant was able to put one foot in front of the other, but used his arms out at the back. I ! I; Ii I I I' side for balance. J_c;L I I I I The purpose J of field sobriety tests is to help tile officer determine whether 11 i Ii someone Ii I r is under the influence determination, of alcohol. (N.T, 3/5/13, p. 62). To make that the officer looks for "how they pay attention to the instructions, how they 11 perform. 11 I Also, with the counting, it helps to see what their mental facilities are. Are ,I I they counting in order? Are they hesitating, I 11 !I•i i' thinking Based upon his training and experience, I' I about what the next number is? And, then also, their balance, how well they carry themselves." lI:L the officer determined that Defendant I failed the one legged stand test. Id. This opinion was forrned because Defendant was II only able to go to three or four steps before putting his foot down for balance. · 1 8/5/13, pgs. 62-63). Officer \i\/ardle also detennined that Defendant failed the walk and 1. (N.T., I11 I turn test because he did not follow instructions and he used his arms outstretched for Ii balance. I! (r\J.T., 8/5/13, p. 63). 1 · I At this point during their interaction, I I I the officer had formed the opinion that Defendant was under the influence of alcohol and incapable of safe driving. based this opinion on the totality of the circumstances. JJ.L He including the following: his observation of Defendant rolling through the stop sign, the high rate of speed, applying the brakes heavily at the last second, not following the officer's instruction to get back in the car, Defendant's unsteady manner, the swaying. slurred speech, the odor of alcoholic beverage, his questions to the officer of "have we reached I Ij a point where we're Ii ij i :, I 11 all losinq? !I sobriety testing results. I. 11 ti j I Do I know who he is. that he is going to be the next president" and the field (N.T., 8/5/13, At some point durin9 pgs. 63-64 and 88). the officer's interactions Pohlig to assist at the scene. (N.T., 8/5/13, p. 64). with Defendant, he called Officer Officer V\/ardle placed Defendant under arrest, put him in the back of the patrol car and told Defendant that they were 11 , , goin9 to go to Brandywine Hospital for a chemical test of his blood. ! I Ii ilj I I (N.T., 8/5/13, pgs. 64 and 84). The procedure for a chemical test entails a phlebotornist drawing two tubes of blood that wi!I get sent to the State Police lab where an analysis vvill be done to determine the blood alcohol content. (NT., 8/5/'13, p. 64). lj II Prior to leaving the scene, Officer Wardle asked Defendant 'I 11 the blood test. (N.T., 8/5/'!3, p. 189). 11 the test because if he would submit to Defendant responded that he would not submit to! !I 11 11 I I he had a couple of prior DU!s and Defendant did not mention that he had a skin rash or medical condition as the reason to not submit to the test.' (N.T., 8/5/13, pgs. ·1 sg-·191 ). Defendant did not mention a fear or concern of needles to the I' t officer, nor did Defendant ask for another form of testing for alcohol. (N.T., 8/5/"13, p. 1, ! I II 190). Once at the hospital, '\ but prior to the blood draw, the officer is required by law to I read the Implied Consent Form to all people that are requested to submit to a chemical test. (N.T., 8/5/13, pgs. 64-65). I i I ! i I PennDOT. The Implied Consent form is Form DL 2G issued by (N.T., 8/5/13. p. 65, Exhibit C-3). Officer Wardle read the DL 26 form to Defendant as follows: -----·-·-·--------·----3 The court gave a cautionary instruction to the jury about Defendant's statement to the officer. The court instructed the jury that the evidence can only be considered in assessinq the c,·edibiiity of the witness and it is not to be used as evidence of his guilt or innocence cf the crimes charged in this case. {NT, 8/5/13, pqs. 189-190). 11 Ii,I I 11 It is my duty as a police officer to inform you that of the follovving: You are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code. I am requesting that you submit to chemical test of blood _1; If you refuse to submit to the chemical test, your operating privileges will be suspended for at least ·12 months. If you previously refused a chemical test. or previously wese convicted of driving under the influence, you wil! be suspended for up to '18 months. !n addition, if you refuse to submit to the chemical test, ano you are convicted of violating Section 3802(a)(i), relating to impaired driving of the Vehicle Code, and because of your refusal, you will be subject to more severe penalty set forth in Section 3804(c) relating to penalties of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with a high rate of alcohol, which included a minimum of 72 consecutive hours in jail and minimum fine of $'1,000, up to maximum five years in jail and maximum fine of $10,000. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. 'If you request to speak with an attorney 01· anyone else after being provided these warnings, or you remain silent when asked to submit to chemical testing, you will refused (sic) the test resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code. I II II 11 1 · i 11 I II I I'II 'I,I ij Il (N.T., 8/5/13, pgs. 65-68, 85 and Exhibit C-3). After the officer finished reading this to nim, Defendant II testing. I (f\J.T., 8/5/13, pgs. 68 and I II pgs. 68 and 85). Defendant essentially and'191). 8/5/13, said, "no." 191 ). Officer Wardle asked him to submit to the chemical twice, once at the scene ofthe stop and once at the hospital. Ii refused to submit to the (N.T., 8/5/13, testing of blood (N.T., 8/5/13, pgs. 68, 84 After Defendant refused to give a sample, the officer took him home. (N.T., p. 68). I ; ----···-----··-----I 'I,I ,: At trial. Officer V\lardle explained lo the jury that the 01.26 form has a blank line in whicl1 they handwrite the substance which they are requesting to test. In this case the substance was blood. (N.T., 8i5/13, p. 66 and Exhibit C-3). I I \I II I; i I! I I1, 11 Officer Timothy Patrick Pohliq testified I j Township Police I numerous trainings with the Pennsylvania I Department since ·1999. that he has been a police officer with Caln (N.T., 8/5/13, p. 89). He has completed State Police on identifying people under the ! influence and standardized training, field sobriety tests. (NT, 8/5/13, pgs. g·J-92). Within the test subjects would consume different amounts of alcohol so that they could view various levels of sobriety and intoxication. (NT, 8/5/13, p. 92). Officer Pohlig testified that some indicia of being under the influence that they are trained to look for in people include slurred speech, I alcohol. Jd 0 unsteady At the time of trial he had made almost a hundred gait and odor of DUI arrests throughout I!! I his 15 year cmeer as an officer. iI with people who were under the influence, but not in a DUI setting. II O')\ V•-)· 11 I 1, He was on duty on January (N.T., 8/5/13, p. 9'1). 1 (N.T., 8/5/'13, p. 'l, 2013 when he was asked to assist Officer Wardle with the traffic stop on Thornridge Drive. (N.T., 8/5/13, pgs. 89-90). I I observed that Defendant had a staggering Ii He also had a lot of interactions Officer Pohlig gait, he stumbled a bit when he walked, his speech was slurred and he appeared to be under the influence of some sort of substance. and 93). !I iI Defendant (N.T . 8/5/13, pgs. 90-91 to smell any alcohol because The officer did not get close enough to he was there to assist and needed to keep a reactionary distance away from him. (N.T., 8/5/13, p. 93). Defendant tried to.enqaqe respond. (N.T; Officer Pohlig in conversation, 8/5/13, pgs. 93 and 95-96). Defendant was rambling about being the next president and saying "mumbo jumbo." (N.T., 8/5/13, p. 94). was slurred and ver''J' incoherent. but the officer did not Defendant's !d. "It Just didn't make any sense." 13 Jil speech l I lryian Defendant Defendant's j l Chaudhry, a friend of Defendant for a couple went to a ~Jew Year's Eve other friend owns .. (r,J.T., Chaudhry and drove him to the restaurant. I 8/5/'13. then had a drink. 111 · 1 JJ;L I'! : r.,k Chaudhry further testified that Defendant owns an entertainment business iI I pqs. '109 . 111-i to engage the crowd. (N.T., 8/5/13, I !! He testified that Defendant had an alcoholic mixed drink with t - orange juice and drank champagne for the rnirlnight toast. (I\J.T., 8/5/13, They left the restaurant between midnight and -1 :00 A.M. (N.T., pgs. 1-12 .. 114).1 8/5/-13, p. 1 ·13). fv1r. Chaudhry was not sure if Defendant was able to safely drive; the restaurant owner asked him to drive Defendant, so Mr. Chaudhry drove Defendant's car when they !l left. 11 had too much to drink and is incapable to safely driving. (i"J.T., 8/5/13, pgs. 114-11tl). iI !I (N .T., 8/5/13, pgs. '113-11 S). He knows that Defendant talks a lot when he has 11 i, II They first went to Mr. Chaudhry's house so that his sister could follow them to Defendant's house. (N.T., 8/5/13, p. 113). That 1,vay Mr. Chaudhry would have a ride home from Defendant's house in the Thornridge development. (N.T., 8/5/'13, pgs. '113 and 'i15). They arrived at Defendant's house between 1:00 A.. M. and 1:30 A.fV1. (N.T., 8/5/13. p. 115). Ruchi Kumar also testified as follows. they live together on Thornric!ge Drive. Defendant is her younger brother and (N,T., 8/5/13, pgs. '117-118). Her family was 11 I i Ii I I I '1, I I ·12·.i I I l<L ,!.·:., i I Defendant picked up Mr. j I Trlf!J arrived at about 10:00 P.M. (f\J.T., I Defendant introduced him to some people, they ate some food and and was comfortable getting on the microphone '/; that he and 8/5/13. pgs. ·109-·110). i p. 1 ·11). testified party on December 31, 2012 at a restaurant Ji J, of years, having a get--together at the house on the night in question (New Year's Eve), but they 11 ""! .L 1i ''! ! I I, I i I, (N.T., 8/5/"13, P£1S. 1 '18-'l 19). did not serve alcohol. 10:00 P.M. and returned about 1:001\.M. (N.T., Defendant left the house about 8/5i13, p. ·119). Upon his return, I.I Defendant appeared normal and not under tile influence of alcohol. kL. ! !I iI, I Ms. Kumar stated that she was with Defendant until about 4:00 J\M. oi- 4:30 • 1 I1 fa.. fvl. because they were watching their dog and puppies. (N.T., 8/5/13, pgs. 120-121). 11 II Defendant did not have anything to drink during that time because they do not have I iI alcohol in the house. i11I i ·1, !d.: Thereafter, she went to sleep and did not see what Defendant, - did after 4:30 /Uvl. (NT, 8/5/i3, p. ·122). i I !i Anne Goswarny i testified c.JS follows 3/5/13. p. '123). On December 31, 20·12 house, where her father also resides. about 7:00 P.M., . I Defendant is her youngest brother. into January 1, 20·13, (N. T., she was at Defendant's (N.T .. 8/5/13, pgs. ·123-124). When she arrived I I I I Defendant was there and appeared fine and not under the influence of] l alcohol. (N.T., 8/5/13, pgs. 124-125). pgs. ·125 and 127-128). Ms. Coswamy not like it if any of his children drank. There is no alcohol in the house. (N.T., 8/5/13. I stated that her dad does not drink and would (N.T., 8/5/'13, I p. 128). I She stated that Defendant left the house and returned about ·1 :00 A.M. (N.T., 8/5/13, p. 125). Defendant appeared fine and not under the influence at that time. 19..c Ms. Goswarny was leaving when Defendant returned so they only said hello and had brief contact. She did not see him swaying or slurring his words. (N.T., (N T., 8/5/13, 8/5/13, pgs. 125-'!20). p. 12G). She asked him how he got home and Defendant told her that a friend dropped hirri off. (N.T., 8/5/13, pgs. Defendant between 1:30 A.fVI. and 5:30 AM. 15 127-128). (N.T., I Ms. Goswarny did not see 8/5/13, p. 128). 11 Defendant testified as follows. He said he was not driving under the influence of drugs or alcohol on January 1, 2013. (N.T., five year old entertainer lIi i and IT director. !si 8/5/13, pqs. 130 and 'l 69). He is a thirty- He holds multiple certifications in technology, software development and LiteCyc!e. (N.T .. B/5/'13, p. 13·1 ). f~egarcling December 3·1. 2012, Defendant said he was home uni ii 9:00 P .fvl. 11 I (N.T., 8/5i13, p. 132). He left to pick up Mr. Chaudhry and drove to Chateau Granieri, which is a banquet facility owned by his very good friend. (N.T., 8/5/13, pgs. 132 and 170). Defendant testified that he did not have any alcoholic beverages at his house, I I 1 Ii I' 11 Mr. Chaudhry 's house or while driving to Chateau Granieri that ni9ht. (N.T., 8/5/13, pgs. 132-'i33). While at the venue, 11 Defendant stated that he hung out and socially networked 1, Ii ! with the entire clientele base. (N.T., 8/5/'!3, pgs. 132-133 and 171). He admitted to < I i I i I Ii having a drinl: at about 10:30 P.ivl., which he got from the bar with Mr. Chaudhry. 8/5/13. p. 134). He had a screwdriver, midniqht. (N.T, 8/5/13, pgs. '134-135). a Captain and Coke and a charnpag ne toast at He was an ivlC for about a half hour, during which he was talking loudly and chatting up the crowd. At about ·12:30, l~L Defendant and Mr. Chaudhry left the venue because Defendant had finished up his toasting duties and he wasn't feeling weli. (N.T., 136). feeling (N.T.,1 8/5/'13, pgs. 135- When asked to describe how he was feeling, Defendant stated, "Just 1Nas11't well. I was kind of a little nauseous, exerted a lot of energy. Sornetimes when you scream that loud behind the microphone, it kind of hits your stomach. So I just wasn't feeling well, kind of like cold sweats." (N.T., 8/5/13, pgs. 137- ·138). Defendant also testified that the owner of the venue, Venkat Reddy, "likes to bust rny chops a little I I 1 1 1 I I bit. So he pretty much looked at I ryian a nrJ said, don't let him drive," 11 136-'137 and 172-173). Mr. Chaudhry drove Defendant's (NT, 8i5/13, pqs. I car home, (N.T., 8/5/13, pgs. 172-173). I I II I J I il was not feeling well and just wanted to hang out. (N.T., Once home, he watched his dog and puppies. kl. beverages because he 8/5/"13, pgs. '138 and '174). He left his residence at 5:00 /\.iv1. to go to WaWa for Tylenol, water and a pack of cigarettes. (N.T., 8/5/13, pgs. ·139 and I i' iI ! I Defendant testified he did not have any further alcoholic J I '1 I' I ! i ! 1· 1 down G.O. Carlson j speed limit, about 35 or 37 j Boulevard approaching Municipal Drive cloi11g the normal He 1.;vas aware that there was a stop si9n I He testified that he stopped behind the stop I 8/5/'13, p. 141 ). I (f'J.T., 8/5/13, pgs. '140-14.1). (N.T., 8/5/13, p. 140). sign without applying his breaks in a hard manner. (N.T., I He did not see a vehicle to the right side of his vehicle. that he saw a cf ear intersection I I I iI iI I The 'vVaWa is a mile to a mile and a half from his house. (N.T., 8/5/13, p. 140). at the intersection. ;I I I On his way back home, Defendant claimed he was driving 174). miles an hour. 111 I.: intersection, without any vehicles. Id. Defendant testified (NT, 8/5/'13, p. 142). After the he was traveling east and saw police strobe lights tum on from the police station parking lot (NT, 8/5/13, pgs. 141-142 and 144). He didn't thinic much about it because he thought they may be going out on a call, so he continued to travel normally J at about 3!1 or 2,7 mph. (NT, 8/5/'13, p. 145). I Defendant testified that he continued to travel on G.O. Canson Boulevard he made a left turn into the Thornbridge Development. iiqhts and pulled over. (N.T., 8/5/13, p. 146). I :I I! !I II He then noticed the police He exited his car because Officer Wardle pulled up behind him even though he knew that the standard procedure 11 Ii Js;L 17 until when your I I I I I/ lI 11 vehicle is stopped by police that you are to not exit the vehicle. (N.T., and 177). 8/5/13, pgs. 148 Defendant asked the officer if everything was okay. (N.T .. 8/5/13, p. 148). Ii :! ! i Defendant admitted to the officer that he had two drinks a! a friend's place, the mixed 1 Ji 1 I I (N.T., 8/5/13, pgs. 148-149). 11 11 I Defendant stated that he tried to i ' say somethinq to Officer Pohlig II I drink and charnpagne. •. e;::t:;::::: 0 because he has run into him on multiple :a ~:98~:,1: ~:; s: ::~ 10 ::I.; ::: .; .~11 occasions :he guys, a lot in of ! ' 11 ! I Defendant Ii President 11 of the admitted to telling Officer V\Jardle a few times that he was running for (NT, United Slates. 8/5113, pgs. 162 and 164). did it, Defendant responded as follows: 11 I i "At that point l was pretty charged. have told him I was a spawn of satan. have really made an), difference. When asked why he I could It would have been okay because it wouldn't kind of randomly I: the night. nothing was really said. going I I i I I It vvas more of a sarcastic remark, rather than me just j I I I iiI ! I I off on a tangent. Multiple requests onto the entire situation of My word meant absolutely nothing." f (N.T., 8/5/13, 1' Il 11 I pqs. ·162--163). also aclrnitted to explain Defendant said he was frustrated. (N.T., 8/5/13, p. 164). Defendant that he told the officer several times that he could call President Obama the situation. (N.T., 8/5/13, pgs. ·155 and 177-181). Defendant testified that after the officer informed him that he was going to take him for blood work, he told the officer that he "cannot go underneath because he was battling a skin disorder with a rash. '181-182). Photos Defendant had taken of his rash into evidence. (N.T., 8/5/'13, pgs. 166 and '!(37) looked like on January 1, 2013. (N.T., 011 pgs. 165-·166 and January 4, 2013 \Vere admitted He said they reflected what his body (N.T., 8/5/13, p. ·167). J. 8 8/5/13, the needle" I 11 I .I When asked why he was afraid to go under the needle, Defendant "Further infections. replied, My mother passed away from an infected needle from a dialysis center by getting blood MRSA when she had very similar rashes on her body. I I I was diabetic. So I wasn't sure what these were at the time." And she (N.T., 8/5/13, p. 168). Ii 'I Defendant acknowledged that Officer Wardle read him the Implied Consent Fo1Tn at the I. hospital and admitted that he refused to do the blood test. (N .T., 8/5/13, pgs. 169, 181 I and 186). I11 11 , .i I ii i :I !I 11 11 IiI Defendant stated he was very concerned about getting a driving under the influence charqe. (NT., 8/5ti3, p. 184). He is a permanent resident and a DUI conviction would affect his residency status. (t,J.T., 8i5/13, p. 185). Even though he knew that the only way he could prove that he was not under the influence was by giving a sample of his blood, he was not willing to submit to the test. The crime of driving under the influence kl is set forth in 75 Pa.C.S...i'.\. § 3802. !t states that "An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing individual a sufficient amount of alcohol such that the is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle." I I 75 Pa.C.S.A. § 3802(a)(1 ). Pennsylvania courts have held that "'Subsection 3802(a)('1) is an 'at the time of !j II driving' offense, requiring that the Commonwealth prove the Iollowinq elements: the accused was driving, operating, or in actual physical control of the movement of a vehicle during the tirne when he or she was rendered incapable I 19 of safely doing so due I j I! 11 I I to 1 the consumption of alcohol." Cormnonwealthv .. Teems, 74 A.3d 142. 145 l 11 ·1 I i I (Pa.Super. 20-13), quoting 0n•lJ!I19DY'£~{i)t!]_:[,_~\;Clid~. i! !I 11 I VVith respect to the type, quantum. qeneral impairment violation 985 /\.2ci 871, 1379 (Pa. 2.009). and quality of evidence required to prove a under Section 3802(a)(1 ), the Pennsylvania Supreme Court in Segida set forth.the following: Section 3802(a)(1 ), like its predecessor [statute]. is a general provision and provides no specific restraint upon the Commonwealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe clrivtng .... The types of evidence that the Commonwealth may proffer in a subsection 3802(a)('1) prosecution include but are not limited to, the following: the offender's actions and behavior. including manner of driving and ability to pass field sobriety tests; demeanor, including toward the investigating officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech. Blood alcohol level may be added to this list, although it is not necessary and the two hour time limit for measuring blood alcohol level does not apply. Blood alcohol level is admissible in a subsection 3801 (a)('l) case only insofar as it is relevant to and probative of the accused's ability to drive safely at the time he or she was driving. The weight to be assiqned these various types of evidence presents a question for the fact-finder, who may rely on his or her experience, common sense, and/or expert testimony. Regardless of the type of evidence that the Commonwealth proffers to support its case, the focus of subsection 3802(a)(1) remains on the inability of the individual to drive safely clue to consumption of alcohol-not on a particular blood alcohol level. J9e1J1S, 74 A.3d at 145, quoting Seqida, 985 A.2d at 879. Examining Commonwealth the evidence in the. record, viewed as verdict winner, it is abundantly clear that there was sufficient evidence to support the jury's finding that Defendant influence of alcohol. Each element in the light most favorable to the was guilty of driving of the crime was established doubt. 20 under the beyond a reasonable I' 11 Ii I! I 1 Defendant's '1 iI II · 1 I ! II I I Il actions and behavior, including manner of driving and failing to pass field sobriety tests; his demeanor at the scene; his unsolicited comments and his physical appearance establish that he was under the influence and incapable of safe driving. Specifically, his driving at a high rate of speed, applying the brakes heavily at the last second, rolling through the stop sign, failing to acknowledge the officer's motions to stop, not following the officer's instruction manner. to get back in the car, unsteady swayinq, slurred speech, the odor of alcoholic beverage, his bizarre questions and statements to the officer and the failed field sobriety tests establish that Defendant 11 was driving a vehicle when he was incapable of safely doing so due to the consumption 11 11 ;I Il iI of alcohol. It is abundantly clear that the jury rejected Defendant's version of the events and I I iI found the other witnesses to be credible. As set forth above, the fact-finder is free to 11 believe all, part or none of the evidence presented. The jury's determination I 11 iI jl ·I I, 11 Defendant was guilty of driving under the influence was supported by sufficient evidence :Weight and Defendant's Q.f the argument on appeal is without merit. Evidence: I li Ii ",A. motion for new trial on the (Founds that the verdict is contrary lo the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict." 11 ! i JI ~.QlTlt}J.90.\Y_0_~l!ll.Y...:....Y1.lQ!:IJ§L 744 /\.2d 745, 751 (Pa. 2000), citing Comrr1onwealth v. It ! l I that 1, i ! Whitemgn, 485 A.2d 459'.(Pa.Super. ·t984). "Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner." V'Jig_mer, 744 ,, "' · , ..., ...... A.,:.a a t· -n::1· , c1t111g r S.Ct. 2211. Tibb s v. Fi,Q!LE., 4r:::- U"' 31 , ~", 102 , . Ct . 22-11 ('1982' ), 11. 11 , 1,02 ·. id ')8 . S I or .0. , /\11 allegation that the verdict is against the weight of tile evidence is 21 11 i l li i; addressed by and at the discretion of the trial court. Y\'idrner, 744 A.2d at 751-752, 11 ll i I citing Commonwealth v. Brown, 648 A.2d ·1 '177 (Pa. 1994). 11 A new trial should not be rJranted due to a mere conflict in the testimony or 11 i) because the judge on the same facts would have arrived at a different conclusion. I I I!i \.!YJg_rner, 744 A.2d at 752, citing Thomp~Q.D.Lt;::J.t, of P.1."2.]ladelphia, 493 A.2d 6139, 673 i I (Pa. 1 9 8 5). "A trl a I judge rn ust do more th an reassess the credibility of the witnesses i iI i, II Il I and allege that he wouid not have assented to the verdict if he were a juror. Trial j judqes, in reviewing a claim that the verdict is against the weight of the evidence do not I 11 11 sit as the thirteenth juror. Rather, the role of the trial judge is to determine that 1 · 'notwitbstandlnq iI II i I ii !I lI' l · I all the facts. certain facts are so clearly of greater weiqht that to iqnore I iI 11 them or to give them equal weiqht with all the facts is to deny justice." Id. '"[fa,] new trial should be awarded when 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. Sullivan, I' 820 A.2d 795, 806 (Pa.S~1per. 2003), app. denied, 833 l\.2d 143 (Pa. 2003), quoting Ii I _G.9ri1rnQL1we~ltl~Goodwine, 692 /\2d 233, 236 (Pa.Super. 1997), app. cleniecl, 700 11 11 ,l\.2d 438 (Pa. 1997). I Ii 'i 11 Stated another way, the evidence must be "so tenuous, vague ' I and uncertain that the verdict shocks the conscience of the court.' " .§ullivan, 820 A.2cl l at 806, quoting Commonwealth .Y.J:§., 640 /\.2d 1336, 1351 (Pa.Super. 1994), app. I, · 1 11 ! l I: iI. I ; I i' I I. 11 !i 11 I i 11 j II denied, 655 A.2d 986 (P~. '1994). In addition, the Pennsylvania Supreme Court has been clear that "appellate review of a wei9ht claim is a review of the exercise of discretion, not of the underlying I I 11 l! question of whether the verdict is against the weight of the evidence.';' il !i :I ;'.\ 2d at 806; quoting :VVido,er, 744 Ji,.2d at 75'1-752. 11 !I I II! I §_ld.]llva.Q. 820 Accordingly, this court applied the above standard when reviewing the evidence presented at trial. Since in this claim, Defendant conceded that there was sufficient I evidence to support each material element of driving under the influence, we examined I Il the testimony of the witnesses and evidence presented to determine if the evidence I l I! was so tenuous, ind uncertain that the verdict shocks the conscience of the I, 11 11 vague J court. i The Pennsylvania Supreme Court has clearly said that "it is tile trial court's 11 I II 11 sense of justice that must be shocked before a new trial may be granted on a claim that! 11 the verdict was against the weight of the evidence." II I.i , ! I I Ii. I ! I Il I I: I unequivocally determines that the guilty verdict of driving under the influence is not i against the weight of the evidence. To the contrary, the evidence strongly supports the l verdict. The jury's verdict on this charge is not contrary to the evidence as to shock one's sense of justice. trial. Accordingly, For the above listed reasons, Defendant is not entitled to a new this issue on appeal is without merit. I 'I 11 !I !I I I I l j . I! 1 11 I I I I Ij li rn·1 (Pa. 1994). After review of the evidence, this court citing, ~rown, 648 A.2d at 1 II ! ~.1!.iiiv~m. 820 /-\.2d at 807, n. ·11, DATE: ·7 /.,- l1ic") · 7/ :; 1 I / ·----''')":) L ..) I 11 I

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.