Com. v. Eastman, N. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NANCY JEANNE EASTMAN,
Appellant No. 893 MDA 2016
Appeal from the Judgment of Sentence January 20, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006625-2014
BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 13, 2017
Appellant, Nancy Jeanne Eastman, appeals from the judgment of
sentence entered on January 20, 2016, following her conviction of driving
under the influence (“DUI”) pursuant to 75 Pa.C.S. § 3802(d)(3)1. We
affirm.
Appellant was charged with three counts of DUI, 75 Pa.C.S. §
3802(d)(1), (2), and (3), all as first offenses, and possession of a small
amount of marijuana, 35 P.S. § 780-113 (a)(31), stemming from an incident
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*
Retired Senior Judge assigned to the Superior Court.
1
“The individual is under the combined influence of alcohol and a drug or
combination of drugs to a degree which impairs the individual’s ability to
safely drive, operate or be in actual physical control of the movement of the
vehicle.” 75 Pa.C.S. § 3802(d)(3).
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on August 22, 2014. She was tried at a bench trial on January 20, 2016,
where the Commonwealth described the evidence as follows:
On August 22nd of 2014, [Appellant] was driving down North
Front Street. The State Police at that time had a checkpoint set
up. They did observe [Appellant] make a U-turn on Front Street
blocking traffic, and her four-way flashers were on at the time so
they initiated a traffic stop.
They smelled marijuana. They noticed her eyes were
bloodshot and glassy. They had her do a number of field
sobriety tests that indicated she was impaired, so they took her
for a blood draw, and the blood draw came back that there was
marijuana as well as amphetamines over the legal limit in her
blood. She also did have alcohol in her blood, however, that was
not over the legal limit. So she is just charged with the THC,[2]
the amphetamines, and the combination thereof.
N.T., 1/20/16, at 2.
As noted, Appellant was found guilty on January 20, 2016, of DUI
pursuant to 75 Pa.C.S. § 3802(d)(3) and not guilty of all other counts. The
trial court sentenced her to seventy-two hours to six months of
incarceration, gave her credit for time served from August 22, 2014, until
August 28, 2014, and granted her immediate parole.
Appellant filed a post-sentence motion on February 1, 2016,3 alleging
that the verdict was against the weight of the evidence. The trial court
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2
Delta-9 Carboxy THC “is the marijuana.” N.T., 1/20/16, at 51.
3
The tenth day following sentencing fell on Saturday, January 30, 2016.
Thus, Appellant’s post sentence motion filed on Monday, February 1, 2016,
was timely. Pa.R.Crim.P. 720 (A)(1); Commonwealth v. Davis, 86 A.3d
883 (Pa. Super. 2012)(whenever the last day of any time period falls on a
(Footnote Continued Next Page)
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denied the motion on April 26, 2016. Appellant filed a timely notice of
appeal to this Court. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following single issue for our review:
I. Whether the trial court erred in denying Appellant’s Post-
Sentence Motion where the verdict was against the weight
of the evidence so as to shock one’s sense of justice where
the Commonwealth never showed that the Appellant was
incapable of driving her vehicle safely?
Appellant’s Brief at 6 (underline omitted).
“The weight of the evidence is a matter 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. Gonzalez,
109 A.3d 711, 723 (Pa. Super. 2015). In Commonwealth v. Clay, 64 A.3d
1049 (Pa. 2013), our Supreme Court set forth the following standards to be
employed in addressing challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Widmer, 560
Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000);
Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
1189 (1994). A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Widmer, 560
A.2d at 319–[3]20, 744 A.2d at 752. Rather, “the role of the
trial judge is to determine that ‘notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
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(Footnote Continued)
Saturday or Sunday, that day is omitted from the computation. 1 Pa.C.S. §
1908).
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or to give them equal weight with all the facts is to deny
justice.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has
often been stated that “a 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.” Brown,
538 Pa. at 435, 648 A.2d at 1189.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
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. Brown, 648 A.2d at 1189. 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. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
denying a new trial is the lower 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.
Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis
added).
Clay, 64 A.3d at 1054–1055. “Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the least assailable of its
rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).
Appellant relies on the testimony of Pennsylvania State Trooper
Gregory Strayer, that Appellant was able to present her driver’s license and
insurance information, was cooperative and not combative, did not stutter,
slur her speech, or fall over. Appellant’s Brief at 12–13. Therefore,
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Appellant maintains that the weight of the evidence failed to prove that
Appellant was not capable of safe driving.
Appellant ignores that the video from Trooper Strayer’s dash camera
was played at trial and admitted into evidence without objection. See N.T.,
1/20/16, at 12. Trooper Strayer, a ten-year veteran with special training in
DUI enforcement testified that Appellant displayed multiple signs of
impairment during the field-sobriety testing. Id. at 5, 18–25. Appellant’s
eyes were bloodshot and glassy, and she was confused. Id. at 14. The
officer administered the Horizontal Gaze Nystagmus test and concluded that
Appellant showed six out of six indicators of impairment for both eyes. Id.
at 18–19. He also administered the walk-and-turn test, and stated that “out
of the eight impairment clues that we are trained to look for, she had six of
those impairment clues.” Id. at 23–24. The third test Trooper Strayer
administered was the one-leg stand, and Appellant displayed “three out of
three indicators” of impairment. Id. at 24.
In the case at bar, the trial court, sitting as the finder of fact, chose to
believe the evidence presented by the Commonwealth, as was its right. In
response to Appellant’s claim assailing the weight of the evidence, the trial
court stated:
Specifically, the Commonwealth demonstrated that [Appellant]
was seen making a U-turn in the area of a DUI checkpoint and
subsequently remained stopped at a four-way stop sign.
[Appellant] admitted to police that she had been drinking alcohol
and smoking marijuana prior to the stop, and showed several
signs of impairment during the field sobriety tests. Police
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observed [Appellant] to be confused, and her speech slow and
lethargic. Further, [Appellant] consented to a blood test which
showed she was above the legal limit for amphetamines and
Delta-9 THC.
Order, 4/26/16, at 1–2.4
Based upon our review of the record, we agree with the trial court,
which, as the fact-finder, was free to believe all, part, or none of the
evidence against Appellant. Gonzalez, 109 A.3d at 723. The court weighed
the testimonial evidence and the evidence from the surveillance video and
found that it supported the verdict. This determination is not so contrary to
the evidence as to shock one’s sense of justice. Moreover, this Court will not
assume the role of fact-finder and reweigh the evidence. Accordingly, we
conclude that the trial court did not abuse its discretion in refusing to grant
relief on Appellant’s challenge to the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
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4
The trial court incorporated its April 26, 2016 order denying Appellant’s
post-sentence motion challenging the weight of the evidence into its
Pa.R.A.P. 1925(a) opinion.
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