Com. v. Smith, Z. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY COLE SMITH :
:
Appellant : No. 1571 MDA 2021
Appeal from the Judgment of Sentence Entered November 9, 2021
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000084-2021
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 26, 2022
Appellant, Zachary Cole Smith, appeals from the judgment of sentence
of, inter alia, 48 hours’ to six months’ incarceration, imposed after he was
convicted of driving under the influence of alcohol or controlled substance –
general impairment (“DUI”), 75 Pa.C.S. § 3802(a)(1); disregarding lane of
traffic, 75 Pa.C.S. § 3309(1); and failing to stop at a stop sign, 75 Pa.C.S. §
3323(b). After careful review, we affirm.
Appellant proceeded to a non-jury trial on June 25, 2021. The key issue
at trial was whether Appellant was the operator of the vehicle on the night in
question. N.T. Trial, 6/25/21, at 3-4.1 The facts adduced at trial are as
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* Former Justice specially assigned to the Superior Court.
1 At trial, Appellant did not contest that he was incapable of safe driving due
to impairment from alcohol on the night in question. Id. at 4 (Appellant’s
counsel stating that Appellant “is not saying that he wasn’t inebriated. He
was….”).
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follows: On or about November 21, 2020, around 11:00 or 11:30 p.m., Adam
Sheriff testified that he was on his way home from visiting his parents. Id. at
5. While stopped at an intersection, Mr. Sheriff stated that he saw a car go
through a stop sign at about 40 miles per hour, swerve by him, and hit a
telephone pole on Pine Grove Road. Id. at 6-7. Mr. Sheriff stated that he
saw the car hit the telephone pole in his side mirror. Id. at 7, 10-11. When
the crash happened, Mr. Sherriff explained,
I immediately grabbed my phone. I started calling 911. I got out
of my car. As I was dialing, I started walking towards their car.
As I was walking toward their car, two men got out of the car.
One of them yelled at me, just drive away, twice. I didn’t know
[if] I was safe because so many people carry [firearms] nowadays.
So[,] I got back into my car, and I finished my 911 call from the
car.
[W]hile I was sitting in there, … I saw them run, I think, in
different directions.
Id. at 7-8. Mr. Sheriff stated that one of the men “ran to the left, across the
road, and one ran more towards the woods.” Id. at 9. Mr. Sheriff denied
seeing a third person in the vehicle or a third person run from scene of the
crash. Id. However, on cross-examination, Mr. Sheriff conceded that, when
he was calling 911, there was a time when he was not ‘completely, 100
percent’ staring at the accident scene and that it is possible that there could
have been a third occupant that left the vehicle. Id. at 11-12. He noted,
though, that a third occupant “would have had to run pretty fast for me not
to see them.” Id. at 12.
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David Sproull testified next. Mr. Sproull conveyed that, in the late
evening hours of November 21, 2020, he was heading to his mother’s house
after he got off work. Id. at 14. While traveling down Pine Grove Road,
shortly before the intersection, he “noticed two men sitting on the left-hand
side on the bank. I kind of slowed down, saw them, and was going to go up;
and when I got up about another quarter mile or so, that is where the accident
was.” Id. At that point, Mr. Sproull pulled off to the side of the road and
grabbed his flashlight, which he used to look inside the vacant car. Id. at 15.
Upon looking in the car, Mr. Sproull stated that “[t]he airbags were deployed,
both the airbags. [It l]ooked like there was blood on the driver’s side airbag,
and there were various cans and bottles on the floor and seat.” Id. at 17.
Mr. Sproull did not recall seeing blood on the passenger’s side airbag. Id. He
said he waited there until a gentleman from fire rescue showed up, and then
they drove up the road to where Mr. Sproull had seen the two men sitting and
waited for the police to arrive. Id. at 15. At trial, Mr. Sproull testified that he
recognized Appellant as one of the men sitting alongside the road that night.
Id. On the night of the accident, Mr. Sproull remembered that Appellant “had
some blood around the nose or mouth….” Id. at 16.
Matthew David Wyant, a volunteer firefighter for Newport Firehouse,
was called as the next witness. Id. at 19. On November 21, 2020, in the late
evening, Mr. Wyant recalled responding to a call about a vehicle crash. Id. at
20. On his way to the accident scene, Mr. Wyant testified that he “saw two
people sitting on the side of an embankment, which I thought was kind of
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weird; but I left it go [and c]ontinued … to the scene.” Id. at 21. Mr. Wyant
then explained that,
[w]hen I got to the scene, I was met by several people – and I’m
assuming they are neighbors and bystanders – telling me that the
people that were involved in that accident had taken off in the
direction that I was coming from. Shortly after that, the fire
department had pulled in; and I had told them what I witnessed
about the two people prior and about being told that they took off.
So … at that point, we had assumed that it was the people involved
in the accident. They wanted me to go back and see if they were
still there.
[Mr. Sproull] got in my vehicle with me. We turned around, went
back down the road, and that is where we met the two sitting on
the side of the embankment.
Id. At trial, Mr. Wyant stated that he recognized Appellant because he was
one of the two gentlemen sitting on the side of the road that evening. Id. at
22. Mr. Wyant recalled that Appellant’s “lip or his nose was bloody, and I
think his hand might have been cut up a little bit.” Id. at 23. Mr. Wyant
recounted that the two men “had told us that there was a third person involved
in the accident; but while we were talking to them, they could not describe
what he looked like, what he was wearing, or his name. They just tried telling
us that there was a third person.” Id. at 24. Mr. Wyant relayed that the two
men indicated that the third person “continued to run on down the road or
into the woods, that they were not sure.” Id. Mr. Wyant testified that a
trooper eventually arrived and took the two men. Id. at 23.
Mr. Wyant then returned to the accident scene where the car was
located and tried to investigate further into whether a third person had been
involved in the crash. Id. at 23-24. He explained that he used “a Thermal
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Imaging Camera. We checked the vehicle from the front to the back; and as
far as we were able to tell, the only hot spots … there [were] two of them, you
know, up in the front [sic].” Id. at 24. In other words, Mr. Wyant represented
that nothing had ‘hit off’ the back seat. Id.
Trooper Alex Kaltenbach testified next. On November 21, 2020, he said
he was working in the patrol unit at Newport Station when he was asked to
respond to a vehicle crash in the area of Pine Grove Road. Id. at 27. Trooper
Kaltenbach stated that he came upon Mr. Wyant, Mr. Sproull, Sebastian May,
and Appellant, sitting on the side of the road a few hundred feet from the
crash scene. Id. at 28. Trooper Kaltenbach asserted that the vehicle involved
in the accident was registered to Appellant. Id. at 29. Trooper Kaltenbach
testified that he asked Appellant who was driving the vehicle, and Appellant
“basically said he didn’t know who it was. It was – he said it was possibly –
his name was Jameson (phonetic) or Jamie, along those lines. He couldn’t
really give me a good description of who was driving.” Id. Trooper Kaltenbach
said that he observed a small laceration on Appellant’s forehead, right above
the bridge of his nose, which appeared to have been bleeding at some point
in time. Id. at 30-31.
Trooper Kaltenbach testified that he examined the vehicle involved in
the crash and noticed that there was blood on the driver’s side airbag. Id. at
31. He did not notice blood on any of the other airbags or anywhere else in
the vehicle. Id. at 31. Trooper Kaltenbach also testified that the individual
with Appellant on the night in question was Sebastian May. Id. at 31-32.
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Trooper Kaltenbach described Mr. May as having “long, curly brown hair.” Id.
at 32. When asked if he had found any evidence indicating where Mr. May
was positioned in the vehicle, Trooper Kaltenbach explained:
So[,] I found … chunks of long, curly brown hair on the
passenger’s side floorboard, and I believe I found some on the …
passenger’s side seat as well. [A]nd then later, [Mr. May] ended
up calling about wanting to get his things, including his alcohol,
that he had left in the vehicle, which was on the passenger’s side
floorboard.
Id. Trooper Kaltenbach noted that Appellant did not have curly brown hair at
the time of the crash. Id. at 38.
On cross-examination, Trooper Kaltenbach acknowledged that it was
possible that certain items in the vehicle may have been relocated due to the
vehicle’s impact. Id. at 33. Trooper Kaltenbach also recognized that,
although the vehicle was registered to Appellant, Appellant and Mr. May had
mentioned that the vehicle was gifted to Mr. May prior to the accident. Id. at
34. Following the accident, Trooper Kaltenbach noted that Mr. May had a leg
injury, but said that he “didn’t see any kind of facial injuries to [Mr. May] or
anything like that. Nothing that stood out to me.” Id. at 35. When asked
why he believed Mr. May was the passenger in the vehicle and Appellant was
the driver, Trooper Kaltenbach pointed to,
the alcohol that [Mr. May] claimed was his; brown curly hair,
chunks of it, on the passenger’s side; and the fact that there was
seat belt use on the passenger’s side, and there was no seat belt
use on the driver’s side. And I observed injuries consistent with
hitting your … face off of a steering wheel on [Appellant], and I
did not see that kind of injury to [Mr. May].
Id. Trooper Kaltenbach later elaborated:
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[T]he injuries that I saw on [Appellant] are consistent with injuries
for people that are involved in crashes and don’t wear their seat
belts; because what happens is they go forward, and they smack
their faces[,] typically … the nose to forehead area[,] o[n] the
steering wheel.
So[,] I didn’t see that on [Mr. May], on the passenger; and there
was seat belt use on the passenger’s side and not the driver’s side.
So that is why.
***
[T]he seat belt on the driver’s side was buckled in. … [T]he driver
had it buckled … behind him. And in the passenger’s seat, … the
passenger’s side seat belt was loose. So[,] it locks if you are in
crash and there is airbag deployment. … I could tell it was being
used because it was locked out.
Id. at 38-39. In addition, Trooper Kaltenbach agreed that Mr. May was highly
intoxicated on the night in question, making it very unlikely that he was the
driver. Id. at 37. Finally, Trooper Kaltenbach admitted that a portion of the
driver’s side airbag was removed but was not sent in for DNA testing, and that
no photographs were taken of Appellant’s injuries. Id. at 36-37.
At the conclusion of trial, the trial court found Appellant guilty of the
above-stated offenses. In rendering its decision, the trial court explained:
First of all, … I don’t believe there was a third person in the vehicle.
I take the testimony of the firefighter. I find it to be very credible
that[,] when they did the [Thermal Imaging Camera] scan, there
was no heat in the back seat but only in the driver’s side and the
passenger’s side. So[,] I am ruling out that there was a third
person.
As far as whether or not [Appellant] was driving, I do find that the
Commonwealth has met its burden beyond a reasonable doubt
based on the testimony of the [t]rooper and the testimony of the
other witnesses that there was blood on [Appellant’s] face, none
on Mr. May’s face[, and] that the airbag on the driver’s side had
blood on it. Also[,] that the restraint system in the passenger’s
side had obviously been working and had kept the passenger from
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hitting the dashboard. Also, the fact that the alcohol … and this
… was a little strange, for someone to call and ask to have his
alcohol returned to him in a crash, was found on the passenger’s
side.
Based on the testimony of the first witness, I find that [Appellant]
also failed to stop at the stop sign. The witness’s testimony was
he blew through the stop sign.
And then … [d]isregarding a [t]raffic [l]ane, I find him guilty of
that.
Id. at 46-47.
Following trial, on July 22, 2021, Appellant filed a motion to vacate the
verdict and requested a new trial. In his motion, he claimed that on July 19,
2021, he received a call from a Grant Bassett, indicating that Mr. Bassett had
witnessed Appellant leave a party on the night in question and get into the
passenger’s side of the vehicle. See Motion to Vacate Verdict/Request for
New Trial, 7/22/21, at 1 (unnumbered pages). The trial court subsequently
denied that motion on August 19, 2021.
On November 12, 2021, Appellant was sentenced to, inter alia, 48 hours’
to six months’ incarceration. On November 30, 2021, Appellant filed a timely
notice of appeal.2 The trial court then ordered Appellant to submit a concise
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2 In Appellant’s notice of appeal, he purported to appeal from “a guilty verdict
entered June 25, 2021 after a non-jury trial and post[-]sentencing motion
denied August 19, 2021[.]” Appellant’s Notice of Appeal, 11/30/21, at 1
(unnumbered pages; unnecessary capitalization omitted). However, “it is well
settled that in criminal cases appeals lie from judgment of sentence rather
than from the verdict of guilt….” Commonwealth v. O'Neill, 578 A.2d 1334,
1335 (Pa. Super. 1990) (citations omitted). Further, while Appellant states
that the trial court denied his post-sentence motion on August 19, 2021, the
motion denied on that date was a post-verdict motion. Appellant did not file
a post-sentence motion.
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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and he timely complied. The trial court later issued a Rule 1925(a) opinion.
On appeal, Appellant raises a single issue for our review:
Whether or not the evidence introduced at the non-jury trial was
sufficient to prove beyond a reasonable doubt [that] Appellant had
been operating a motor vehicle while under the influence?
Appellant’s Brief at 8 (unnecessary capitalization omitted).
Appellant challenges the sufficiency of the evidence to sustain his DUI
conviction. We apply the following standard of review for such claims:
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant’s guilt to a mathematical certainty. Finally, the trier of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citation
omitted).
Appellant was convicted of DUI under Section 3802(a)(1). Section
3802(a)(1) sets forth the following:
(a) General impairment.--
(1) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing
a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in
actual physical control of the movement of the vehicle.
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75 Pa.C.S. § 3802(a)(1).
Appellant argues that “[t]he Commonwealth presented insufficient
evidence to prove beyond a reasonable doubt [that] Appellant operated a
motor vehicle while under the influence.” Appellant’s Brief at 10. He asserts
that “[n]either [the t]rooper or witnesses observed … Appellant operating the
vehicle[,]” and claims that “[n]o physical evidence placed … Appellant as the
operator. No testing of the blood on the driver’s side airbag was done to
demonstrate that Appellant was the operator at the time of the crash as
alleged….” Id. Appellant also emphasizes that he had gifted the vehicle to
Mr. May, and that a witness came forward after the trial with information that
Appellant was not the driver on the night in question. See id. at 14-15.3
No relief is due. This Court has previously explained that “[u]nder
Pennsylvania law, an eyewitness is not required to establish that a defendant
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3 We point out that Appellant’s argument on appeal regarding Grant Bassett
does not entirely conform with the post-verdict motion he filed with the trial
court. In his brief, Appellant claims that “a party did come forward after trial
to indicate to counsel that he was the driver of the vehicle that evening.”
Appellant’s Brief at 15; see also id. at 10 (alleging that an individual came
forward after trial and “stated he was the operator”); id. at 13 (“[Appellant’s]
counsel received a phone call from a Grant Bassett on July 19, 2021. He
indicated to counsel that he was the operator of the vehicle and that
[Appellant] was the passenger.”). However, in his Motion to Vacate
Verdict/Request for New Trial filed with the trial court, Appellant averred that
“[c]ounsel received a call from a Grant Bassett on July 19th indicating that he
witnessed [Appellant] leave the party and get into the passenger side of the
vehicle.” See Motion to Vacate Verdict/Request for New Trial at 1
(unnumbered pages). In that motion, Appellant did not advance that Mr.
Bassett purported to be the driver of the vehicle on the night in question.
Thus, Appellant’s argument on appeal regarding this after-discovered
evidence does not align exactly with what he represented below.
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was driving, operating, or was in actual physical control of a motor vehicle.
The Commonwealth can establish through wholly circumstantial evidence that
a defendant was driving, operating or in actual physical control of a motor
vehicle.” Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super.
2003). Further, as the Commonwealth aptly observes,
[t]he trial court properly found sufficient circumstantial evidence
to identify Appellant, and not his passenger, as the intoxicated
driver of the car…. That evidence included the facts that the car
was registered to Appellant; that the driver’s side airbag had blood
on it, and Appellant had blood on his lip, nose and forehead (and
the passenger had no visible blood wounds); that the driver’s side
seat belt was not in use at the time of the crash, but the
passenger’s side was; that clumps of hair matching the
passenger’s hair was found on the passenger side seat and
floorboard, but not the driver’s side; that Appellant denied
knowledge of, and could not describe, an unidentified third party
who he claimed was the driver; and that the passenger later called
the police to request the return of alcohol that he had left in the
passenger side of the vehicle, where it had been observed by the
investigating state trooper at the scene.
Commonwealth’s Brief at 1. We agree with the Commonwealth that this
evidence was sufficient to conclude that Appellant was operating the vehicle
on the night in question. See Teems, 74 A.3d at 148 (“[O]ur jurisprudence
does not require fact-finders to suspend their powers of logical reasoning or
common sense in the absence of direct evidence. Instead, juries may make
reasonable inferences from circumstantial evidence introduced at trial.”)
(citation omitted). Accordingly, we affirm Appellant’s judgment of sentence.4
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4To the extent Appellant challenges the weight of the evidence underlying his
conviction, we would deem this claim waived, as Appellant has not
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/26/2022
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demonstrated that he preserved it for our review. See Pa.R.A.P. 2117(c)
(requiring, where an issue is not reviewable on appeal unless raised or
preserved below, a statement of place of raising or preservation of issues);
Pa.R.A.P. 2119(e) (“Where under the applicable law an issue is not reviewable
on appeal unless raised or preserved below, the argument must set forth, in
immediate connection therewith or in a footnote thereto, either a specific
cross-reference to the page or pages of the statement of the case which set
forth the information relating thereto as required by Pa.R.A.P. 2117(c), or
substantially the same information”); see, e.g., Commonwealth v. Lofton,
57 A.3d 1270, 1273 (Pa. Super. 2012) (“[A] weight of the evidence claim must
be preserved either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Failure to properly preserve the
claim will result in waiver….”) (citations omitted). Moreover, our own
independent review of the record does not reveal that Appellant properly
raised a weight-of-the-evidence claim below.
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