Com. v. Johnson, A. ( 2018 )

J-S37024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY MICHAEL JOHNSON :
:
Appellant : No. 1489 EDA 2017
Appeal from the Judgment of Sentence Entered April 5, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CAR-0000889-2016
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY McLAUGHLIN, J.: FILED SEPTEMBER 12, 2018
Following a bench trial, the trial court found Anthony Michael Johnson
guilty of Driving Under the Influence of Alcohol or Controlled Substance
(general impairment) (DUI), but acquitted him of Drivers Required to Be
Licensed, Driving Vehicle at Safe Speed, and Careless Driving.1 Johnson
argues on appeal that the guilty verdict was against the weight of the evidence
because of a claimed inconsistency between the conviction and the acquittals.
Johnson waived his weight claim, and we therefore affirm.
An appellant may not challenge the weight of the evidence in the first
instance on appeal. See Pa.R.Crim.P. 607(A); Commonwealth v. Roche,
153 A.3d 1063, 1071 (Pa.Super. 2017), appeal denied, 169 A.3d 599 (Pa.
2017). Although Johnson raised a weight claim before the trial court in a
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(a)(1), 1501(a), 3361, and 3714(a), respectively.
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Motion for Extraordinary Relief and/or Arrest of Judgment, he withdrew the
motion before the court ruled on it. The withdrawal is memorialized in both a
notation on the trial court docket and a signed document in the certified
record. Johnson did not otherwise raise the issue in the trial court and he does
not make any argument that he did not commit waiver despite having
withdrawn the motion. Johnson waived his weight challenge.
Even if Johnson had properly preserved the issue, we would nonetheless
affirm. The trial court addressed Johnson’s weight-of-the-evidence argument
because he asserted it in his Pa.R.A.P 1925(b) Statement. Johnson’s Rule
1925(b) Statement claimed that “the verdict of guilty to the charge of DUI in
light of the acquittals to the remaining traffic summary offenses [was] against
the weight of the evidence” and “shock[s] the conscience[,] [t]hereby
necessitating vacating the guilty verdict or alternatively, granting a new
trial[.]” Johnson’s Br., Ex. B.
The trial court explained that it had disbelieved Johnson’s testimony at
trial that he was not the one driving at the time of the incident giving rise to
the charges at issue in this appeal. The court then concluded that, in view of
the other evidence against Johnson – in particular the testimony of other
witnesses whom the court found credible – the verdict was not objectively
shocking. That conclusion was not an abuse of discretion. See
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (stating
standard of review of an order denying a motion for a new trial based on a
weight claim is abuse of discretion). To the extent Johnson attempts to
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reframe his weight argument as a challenge to the sufficiency of the evidence,
he waived that argument by not raising it in his Rule 1925(b) Statement.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/18
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