Com. v. Barlow, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN ROY BARLOW, JR., :
:
Appellant : No. 1051 WDA 2016
Appeal from the Judgment of Sentence July 8, 2016
in the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001653-2015
BEFORE: OLSON, SOLANO, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 17, 2017
John Roy Barlow, Jr. (Appellant) appeals from the judgment of
sentence imposed following his convictions for the summary offenses of
driving during suspension – DUI related, failing to obey stop signs, and
careless driving. We affirm.
Appellant was arrested and charged with the aforementioned summary
offenses, as well as a misdemeanor charge of fleeing and eluding. The
matter proceeded to trial, at which time the parties agreed that a jury would
decide the charge of fleeing and eluding, and the trial court would decide the
summary offenses.
The testimony presented at trial established the following. At
approximately 8:15 on the evening of September 21, 2015, Trooper Brian
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Shevitz1 of the Pennsylvania State Police witnessed a maroon Toyota
Tacoma pickup truck fail to stop at a stop sign before making a left hand
turn into the path of an oncoming car, which had to brake suddenly to avoid
a collision. The trooper testified that there were skid marks left on the road
as a result of the car’s sudden stop.
The trooper activated his vehicle’s emergency lights and siren and
began to follow the pickup truck. The truck slowed its speed, put on its turn
signal, and eventually turned in to a driveway. The trooper pulled in the
driveway behind the truck. A man, later identified as Appellant, exited the
driver’s side of the truck, looked at the trooper and exclaimed “fuck,” before
walking away. The trooper ordered Appellant to stop. Appellant replied,
“wait a minute,” and continued to walk away from the trooper.
While this was happening, the truck’s female passenger, later
identified as Crystal Long, exited the truck and ran into a copse of pine trees
immediately next to the passenger side of the truck. Trooper Shevitz gave
chase and eventually apprehended Ms. Long. However, by the time Trooper
Shevitz returned to the driveway with Ms. Long, Appellant was gone.
Backup arrived and a search ensued for Appellant to no avail.
Appellant’s vehicle was towed from the scene. A PennDOT search
revealed that the license plate on the truck was registered to Appellant.
Trooper Shevitz was able to obtain Appellant’s driver’s license and positively
1
The trial court opinion misspells the trooper’s last name as “Chevitz.” We
use the spelling that Trooper Shevitz used in the affidavit of probable cause.
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identified Appellant as the man driving the truck and, subsequently,
identified Appellant in court. Additionally, the Commonwealth presented a
certified copy of Appellant’s driving record to the court in support of the
driving under suspension – DUI related charge.
Ms. Long testified on behalf of the Commonwealth that she was so
drunk that she did not recall the day of the incident and, although she has
known Appellant for a long time, she believed it was her sister who picked
her up from the bar that evening because that is what her sister told her.
Appellant did not testify on his own behalf, but presented alibi
testimony from John Christopher Dunder, who claimed that Appellant was
working with him as a welder on the evening of the incident.
After hearing this evidence, the jury returned a verdict of not guilty as
to the misdemeanor fleeing and eluding charge; however, the court found
Appellant guilty of the remaining summary offenses. On July 8, 2016,
Appellant was sentenced to a term of 60 days’ incarceration on the offense
of driving during suspension – DUI related and associated costs and fines.
The court imposed a fine at the other two charges. This appeal followed.
Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.
On appeal, Appellant claims that the evidence was insufficient to
support his convictions. Our standard of review is to determine
whether, viewing all the evidence admitted at trial in the light
most favorable to the [Commonwealth as the] verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
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[the above] test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts regarding
a defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)
(citation omitted).
The entirety of Appellant’s sufficiency-of-the-evidence argument is as
follows.
Here, [Appellant] put forward a credible alibi defense in the form
of the testimony of [] Dunder. Dunder who testified that
[Appellant] was working the night of the incident. [(sic)] Dunder
was a co-worker of [Appellant’s]. Nothing about Dunder’s
testimony suggested he was not telling the truth of [Appellant’s]
whereabouts on that day.
The trial court should have found Dunder’s testimony
credible and found that [Appellant] was not driving and is
therefore not guilty.
Appellant’s Brief at 11.
While couched as a sufficiency argument, Appellant fails to specify
which element or elements of the summary convictions he is challenging.
Rather, Appellant asks this Court to reweigh the evidence in his favor. This
we will not do. Our case law is clear that the finder of fact is “in the best
position to view the demeanor of the Commonwealth’s witnesses and to
assess each witness’ credibility.” Commonwealth v. Olsen, 82 A.3d 1041,
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1049 (Pa. Super. 2013) (citation omitted). Here, the trial court was
presented with the testimony of Trooper Shevitz, Ms. Long, and Dunder. The
court was free to find credible the testimony of the Commonwealth’s
witnesses and resolve any inconsistencies in the Commonwealth’s favor. We
will not disturb that decision on appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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