Com. v. Lewis, G. ( 2014 )

J-S48026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY LEWIS
Appellant No. 20 MDA 2014
Appeal from the Judgment of Sentence May 30, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003270-2012
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 06, 2014
Gary Lewis appeals the judgment of sentence of a minimum of 21 days
to a maximum of 6 months of house arrest with electronic monitoring under
an intermediate punishment program1 for driving under the influence
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
an imposition of an $1,000.00 fine[;] the Defendant was to
enroll, attend and complete the Alcohol Highway Safety
Program[;] undergo evaluation for drug/alcohol treatment
if recommended[;] participate in 15 hours of community
service and a [Pennsylvania Department of Transportation]
with bail continuing throughout appeal proceedings.
Trial Court Opinion, 02/11/2014, at 1-2.
J-S48026-14
general impairment and for driving under the influence highest rate of
blood alcohol content convictions.2 We affirm on the basis of the well-
reasoned trial court opinion.3
Lewis raises two issues on appeal:
of guilt for
DUI Highest Rate, was against the weight [of the]
evidence.
DUI General Impairment was against the weight of
the evidence.
The standard of review for weight of the evidence claims is as follows:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
____________________________________________
2
75 Pa.C.S. §§ 3802(a)(1), (c), respe
section 3802(a)(1) merged into his section 3802(c) conviction for sentencing
purposes. See Trial Court Opinion, at 1; 42 Pa.C.S. § 9765 (relating to
merger of sentences).
3
On May 30, 2013, following a bench trial, the trial court found Lewis guilty
of the aforementioned charges. On July 23, 2013, the trial court imposed
-sentence motions,
which were denied by operation of law on December 2, 2013. On December
24, 2013, Lewis filed a timely appeal.
The trial court did not direct Lewis to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On February 11, 2014, the trial
court filed its Pa.R.A.P. 1925(a) opinion. Although Lewis only challenged the
weight of the evidence in his post-sentence motion, the trial court analyzed
both the sufficiency and weight of the evidence. Lewis did not challenge the
sufficiency of the evidence in this Court, so we need not address it. See,
e.g., Commonwealth v. Rush, 959 A.2d 945, 950-51 (Pa.Super.2008).
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J-S48026-14
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of
justice. Moreover, where the trial court has ruled on
the weight claim below, an appellate court's role is
not to consider the underlying question of whether
the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.2003).
When an Appellant attacks the credibility of trial testimony, our review
is extremely limited. Commonwealth v. Gibbs, 981 A.2d 274, 282
(Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa.2010). Generally, unless
the evidence is so unreliable or contradictory as to make any verdict based
thereon pure conjecture, weight of the evidence claims will fail on appeal.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa.Super.2007).
In his first issue, Lewis argues that forensic scientist Larissa Sorochka
failed to test his blood sample properly, and as a result, the
conscience. In support, Lewis asserts that Sorochka lacked knowledge
regarding the calibration date for the pipettes used for testing, the date of
sample expired); and the date of expiration or retention times of the control
sample. Appel -15.
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J-S48026-14
In his second issue where he challenges the weight of the evidence
underlying his guilty verdict for DUI general impairment, Lewis contends
be considered in determining whether he was capable of safe driving[ and
t]he remaining evidence presented at trial was of insufficient weight to
establish that [] Lewis was incapable of safe d -
17. In support, he asserts:
While it is certainly true and relevant that an
accident occurred in the present matter, Trooper
Buznik did not know if something had occurred that
le[d] to the car being driven up on to the curb. As
such, the accident alone is not sufficient that Mr.
Lewis was incapable of safe driving due to
consuming alcohol.
During Officer Huntzinger's interaction with Mr.
Lewis, Officer Huntzinger detected an odor of alcohol
and saw that Mr. Lewis had bloodshot eyes. (N.T.
58:7-19). Officer Huntzinger indicated that an odor
of alcohol and bloodshot eyes do not equate to
impairment but would at most indicate consumption.
(N.T. 58:15-20). Officer Huntzinger stated that Lewis
had a slight sway while Lewis was being questioned
about the accident but indicated that Lewis was not
using anything to lean against or prop himself on.
(N.T. 60:11-24).
Notably, Mr. Lewis's speech was not slurred.
Additionally, the Officer did not perform Standard
Field Sobriety Tests. As stated above, there were
certainly signs of consumption of alcohol. However,
the absence of standard field sobriety tests provides
this Honorable Court with little evidence to establish
that the consumption was of such a level to render
Mr. Lewis incapable of safe driving.
-18.
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In denying relief, the trial court reasoned:
In finding [Lewis] guilty, your undersigned
jurist believed the witnesses presented by the
Commonwealth after having the opportunity to
examine the credibility of [forensic scientist] Larissa
Sorochka, [Pennsylvania State] Trooper [Joseph]
Buznik, and [Kingston Township Police] Officer
Huntzinger. It is fair and reasonable to conclude that
we weighed the evidence affording the necessary
witnesses and did so beyond a reasonable doubt.
Trial Court Opinion, 02/11/2014, at 5-6.
We have reviewed the record, the trial court opinion, the briefs and
the relevant law and conclude that the opinion authored by Judge Augello
correctly and thoroughly disposes of the claims raised by Lewis on appeal.
Acco
parties to attach copies of said opinion in the event of further proceedings in
this matter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2014
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