Com. v. Galette, C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CEDRIC GALETTE :
:
Appellant : No. 862 EDA 2019
Appeal from the Judgment of Sentence Entered February 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005392-2018
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: Filed: December 17, 2020
Appellant, Cedric Galette, appeals from the February 28, 2019 judgment
of sentence imposing three days’ incarceration, six months’ probation, and a
suspension of his driver’s license for twelve months after the trial court found
Appellant guilty of driving under the influence of a controlled substance
(“DUI-controlled substance”).1 We affirm.
The trial court summarized the factual history as follows:
[O]n January 18, 2017, [Officer Patrick Dooley] observed
[Appellant] traveling at a high rate of speed westbound in a black
Ford Escape while [Officer Dooley] was traveling eastbound on
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1 75 Pa.C.S.A. § 3802(d)(2). Appellant’s sentence of six months’ probation
was to run consecutive to his sentence of three days’ incarceration. Appellant
was also ordered to attend Alcohol Highway Safety School and receive a drug
and alcohol assessment and treatment at a Greater Philadelphia Health Action
facility.
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[Rhawn Street as he was approaching Verree Road,2 in
Philadelphia, Pennsylvania]. Officer [] Dooley stated,
"[Appellant’s] vehicle was traveling at a high rate of speed. The
vehicle [maneuvered from] the left lane [of travel and] went into
the right shoulder bike lane [on the roadway]. [While driving,
Appellant] passed approximately six vehicles. [Appellant] timed
the [traffic signal and drove] through the intersection, at which
time [Officer Dooley] made a U-turn and activated [his] lights and
sirens [on his police cruiser in order] to pull [Appellant] over."
After Officer Dooley activated his lights and sirens, [Appellant]
continued [driving onto] "Pine [R]oad, crossed Pine Road, and
made a sharp U-turn into the Dunkin Donuts parking lot."
[Appellant] then exited the driver's side of the vehicle and moved
quickly to the Dunkin Donuts [building, whereupon] Officer
[Dooley] stopped him and asked [Appellant] what was going on.
[Appellant] stated that someone was having a medical
emergency. Officer Dooley then went to the passenger side of
[Appellant’s] vehicle to see what the medical emergency was and
called for the medics. However, once the medics arrived, the
passenger, who identified himself as [Appellant’s] son, refused
medical [assistance].
Trial Court Opinion, 12/18/19, at 1-2 (record citations, extraneous
capitalization, and original brackets omitted).
On August 3, 2018, Appellant was charged with the aforementioned
crime.3 At the conclusion of a bench trial on November 29, 2018, the trial
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2The trial court stated that Officer Dooley was traveling eastbound on “Verree
Avenue.” A review of the notes of testimony demonstrates that Officer Dooley
was traveling eastbound on Rhawn Street and that Appellant was traveling
westbound on Rhawn Street. N.T., 11/29/18, at 4.
3 Initially, Appellant was charged with the aforementioned crime on January
19, 2017, and appeared before the Philadelphia Municipal Court. The
municipal court found Appellant guilty of DUI-controlled substance on April
12, 2018. Appellant was sentenced, inter alia, to three days’ to six months’
incarceration with immediate parole upon his serving the minimum sentence
of three days. Appellant filed a notice of appeal with the Court of Common
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court found Appellant guilty of DUI-controlled substance. On February 28,
2019, the trial court sentenced Appellant to three days’ incarceration in a
county facility, as well as a maximum of six months’ probation to run
consecutive to Appellant’s incarceration. The trial court also suspended
Appellant’s driver’s license for twelve months, ordered Appellant to attend
Alcohol Highway Safety School, and ordered Appellant to receive a drug and
alcohol assessment and treatment at a Greater Philadelphia Health Action
facility. On March 7, 2019, Appellant filed a post-sentence motion, which the
trial court subsequently denied. This appeal followed.4
Appellant raises the following issues for our review:
1. Was not the evidence insufficient to support the verdict, as
the evidence did not support the conclusion that Appellant
was driving under the influence of a controlled substance,
or that his ability to drive was impaired where no drugs or
paraphernalia were found on Appellant's person or in his
vehicle, no chemical testing was introduced, no
standardized field sobriety tests were conducted, no expert
testimony was elicited regarding [phencyclidine (“PCP”)]
and the ability to drive and the traffic violations committed
by Appellant were consistent with a response to an
emergency situation rather than the actions of an impaired
driver, especially as there was no collision and no swerving?
2. Was not the evidence presented by the Commonwealth so
contradictory as to be insufficient to support the verdict of
guilt where the Commonwealth presented two different
versions of what Appellant may have been under the
influence of, and inconsistent versions of the indicia of
____________________________________________
Pleas of Philadelphia County where a new information was filed against
Appellant charging him with DUI-controlled substance.
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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impairment, all without presenting any expert evidence on
his ability to drive, and thus was so unreliable that any
finding, and therefore the verdict of guilt, must have been
based on surmise and conjecture, and thus insufficient as a
matter of law pursuant to Commonwealth v. Karkaria,
625 A.2d 1167 (Pa. 1993)?
3. Even were it to be determined that there is sufficient
evidence to support the verdict, would not such a verdict be
so contrary to the weight of the evidence as to shock one's
sense of justice, where the trial testimony was vague,
inconsistent and incredible and should not a new trial have
been granted in the interests of justice so that right could
prevail, as the jury's verdict,[5] based upon such testimony,
was speculative and conjectural?
Appellant’s Brief at 5-6.
Appellant’s first two issues, in sum, challenge the sufficiency of the
evidence to support his conviction, for which our standard of review and scope
of review are well-settled.
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to 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 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 proof or proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
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5Appellant was convicted by the trial court at the conclusion of a bench trial
and waived his right to a trial-by-jury.
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the entire record must be evaluated and all the evidence actually
received must be considered. 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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also
Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating, that in
reviewing a claim of insufficient evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier[-]of[-]fact could have found the essential elements of the crime
beyond a reasonable doubt” (emphasis in original)).
[T]he [trier-of-fact's] individualized assessment of the credibility
of the trial evidence is, as a general principle, not to be questioned
by an appellate court as part of its review, even if the evidence is
conflicting. [C]ourts presume the [trier-of-fact] resolved
evidentiary disputes reasonably so long as sufficient evidence
supports the verdict. [M]ere inconsistency and conflicts in
witnesses testimony, by itself, will not furnish a basis for an
appellate court to reverse a conviction [] on the grounds of
evidentiary insufficiency.
Brown, 52 A.3d at 1165 (citations omitted). Rather, the trier-of-fact’s
resolution will only be disturbed “in those exceptional instances [] where the
evidence is so patently unreliable that the [trier-of-fact] was forced to engage
in surmise and conjecture in arriving at a verdict based upon that evidence.”
Id., citing Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).
When a witness’s in-court testimony is inconsistent with a prior statement and
the veracity of that inconsistency is tested on cross-examination, the
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testimony may be “sufficient evidence upon which a criminal conviction may
properly rest” because the trier-of-fact can reasonably credit the in-court
testimony over the prior statements. Brown, 52 A.3d at 1168. “[I]t is the
[trier-of-fact’s] ability to make in-person observations of the witness at the
time of trial, as he or she explains the reasons for the prior statement, which
is most crucial to its assessment of the witness's credibility.”6 Id. at 1169.
To preserve a sufficiency claim, the appellant’s Rule 1925(b) statement must
specify the element or elements upon which the evidence was insufficient.
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).
Section 3802(d)(2) of the Pennsylvania Vehicle Code, in pertinent part,
states,
(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
...
(2) The individual is under the influence of 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.
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6 “[I]t is the ‘great engine of cross[-]examination’ which furnishes the best
method by which the witness's motives for changing his or her story, from
that given previously, may be fully and thoroughly explored, and,
correspondingly, it is the best means to furnish the [trier-of-fact] with a sound
basis by which it may discern which of the two tales told by the witness is
worthy of belief.” Brown, 52 A.3d at 1169 (citation omitted).
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75 Pa.C.S.A. § 3802(d)(2). In order to convict a defendant under
Section 3802(d)(2), the Commonwealth must demonstrate “that [the
defendant] was under the influence of a drug to a degree that impairs his or
her ability to safely drive or operate a vehicle.” Commonwealth v.
Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008) (citation and original
quotation marks omitted), appeal denied, 980 A.2d 608 (Pa. 2009). Section
3802(d)(2) “does not require proof of a specific amount of a drug in the
driver's system. It requires only proof that the driver was under the influence
of a drug or combination of drugs to a degree that the ability to drive is
impaired.” Commonwealth v. Tarrach, 42 A.3d 341, 345 (Pa. Super.
2012), citing Williamson, 962 A.2d at 1204 and Commonwealth v.
Griffith, 32 A.2d 1231, 1238 (Pa. 2011). “[E]xpert testimony is not necessary
to establish impairment [due to a controlled substance] under [Section]
3802(d)(2) where there exists other independent evidence of impairment.”
Commonwealth v. Gause, 164 A.3d 532, 538 (Pa. Super. 2017), appeal
denied, 173 A.3d 267 (Pa. 2017). A “lay witnesses may testify to someone's
readily observable physical condition or appearance that does not require
medical training.” Gause, 164 A.3d at 538 (citation omitted).
Here, Appellant argues,
The evidence was insufficient to support the verdict, as it failed to
validate the conclusion that Appellant was under the influence of
a controlled substance, or that his ability to drive was impaired.
No drugs or paraphernalia were found on Appellant's person or in
his vehicle; no chemical testing was introduced; no standardized
field sobriety tests were conducted; no expert testimony was
elicited regarding PCP and the ability to drive; and the traffic
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violations committed by Appellant were consistent with a response
to an emergency situation rather than the actions of an impaired
driver, especially as there was no collision and no swerving.
Appellant’s Brief at 14. “Appellant denies that he drove while impaired, rather,
he attributes the traffic violations as a response to an emergency situation[.]”
Id. at 16.
The trial court summarized the evidence presented at trial as follows:
[The] Commonwealth asked Officer Dooley how many blocks were
between Verree [Road] and Pine [Road], and Officer [Dooley]
responded six to seven blocks. [The] Commonwealth then
asked[,] at any point did [Appellant] pull over; Officer [Dooley]
responded in the negative. [The] Commonwealth then asked[,]
at any point did [Appellant] stop his vehicle, and Officer Dooley
said[, Appellant] stopped [his vehicle] when he made the U-tum
into the Dunkin Donuts parking lot. [The] Commonwealth asked[,
whether Appellant] used a [turn-]signal, and Officer [Dooley]
stated, "no, he did not." [The] Commonwealth then asked Officer
Dooley[, did] he make any observations about [Appellant] when
he stopped him [as he attempted to enter] the Dunkin Donuts;
Officer Dooley responded,
I observed [that Appellant’s] coat was inside out. The
pocket[,] which goes to the inside of the coat[,] was outside.
His shirt was half tucked in and half untucked. I believe his
zipper, his fly, was open. He had a glaze over [his] face.
His eyes were glassy, pinpoint. I [asked] him what was
going on. His speech was slow. He had to repeat himself
multiple times. I couldn't understand what he was saying.
His words were garbled. He had that thousand-yard stare.
He was looking at me, but as if l wasn't there. He was
looking through me.
Officer Dooley also testified that at the time of the interaction, he
thought that he smelled a strong odor of alcohol, but after
receiving [additional] training, he believes it was PCP. [The]
Commonwealth then [asked] Officer Dooley, based on his training
after the incident, how certain [was] he that [Appellant] was
under the influence of PCP. Officer Dooley stated, "fairly sure. I
mean, I'm almost a hundred percent positive that it wasn't
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alcohol, because of the training and the different smells -- at the
time I thought it was alcohol, I wasn't sure, but I believed it to
be. Going through the [subsequent] training,[7] I realized that,
hey, that wasn't alcohol I was smelling, it was PCP." [The]
Commonwealth then asked[,] at the time of the incident [had] he
ever received training in identifying PCP, Officer Dooley stated,
"no." Officer Dooley testified [that] within his nine to ten years
as a police officer, he [had] come into contact with individuals who
were under the influence of a control substance. [The]
Commonwealth asked, "and based on your experience, did you
come to form an opinion concerning this [Appellant] on that
night." Officer Dooley responded, "On that night and that date, I
believed from his erratic driving and his appearance, I believed
him to be under the influence of something, and he was unable to
operate a vehicle." [The] Commonwealth inquired whether Officer
Dooley told the district attorney that [Appellant] was under the
influence of PCP and not alcohol. Officer Dooley responded, "I did
inform the district attorney that I believed it was PCP and not
alcohol. It wasn't until after I arrested him that I believed it was
PCP[.]" The [trial] court then asked Officer Dooley if he formed
an opinion after he saw [Appellant.] Officer Dooley responded,
"When I stopped him, all of his facial movement, [his]
glaze[d-]over [stare], his speech, I thought he was impaired."
The [trial] court then asked, "You felt that he couldn't drive a car
safely?[”] Officer Dooley responded, "I felt that he couldn't."
After hearing testimony from Officer Dooley, Officer Daniel Shead
[] testified that on January 18, 2017, he was [on duty] at the
police detention unit[. The] Commonwealth asked whether Officer
Shead made any observations when he saw [Appellant]. Officer
Shead stated that [Appellant] had "repetitive speech, he had
lightly glassy eyes, and he had slightly slow movements." The
[trial] court then asked Officer Shead, did [Appellant] seem
impaired to him. Officer Shead responded, "He did show slight
signs of impairment. I mean, there's many degrees of impairment
that I see on a pretty steady basis." The [trial] court then asked
Officer Shead[] how many cases he [was involved in] with
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7 Officer Dooley stated that after the incident involving Appellant, he received
additional training in the form of standardized field sobriety training, roadside
impairment detection and enforcement training, and check-point training.
N.T., 11/29/18, at 10-11.
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individuals impaired by alcohol or drugs. Officer Shead
responded,
Well, I've been an officer for 22 years. More specifically,
I've been in AID, which is Accident Investigation District for
about 11 [years]. During those 11 years, I would [] say I
have come in contact with a minimum of a thousand people
who were impaired or intoxicated to varying degrees. Every
time I've come into contact with someone, it's because they
have been arrested for a DUI [in which] a chemical test has
been performed. So I've seen people fall off of a chair, not
stay awake, [emit a] heavy odor of alcohol, all the way down
to just [emitting] a very light odor of alcohol, maybe lightly
glassy eyes. And in the case of [Appellant], lightly slurred
speech and slightly slow movements to varying degrees.
The [trial] court then asked, "So in your opinion as a police officer
of 11 years and doing this with over a thousand people, did you
believe [Appellant] was impaired?" Officer Shead responded that
he thought [Appellant] was impaired.
After hearing [] from Officer Shead, the [trial] court heard from
David Leff, a self-employed forensic narcotics consultant. The
[trial] court asked Mr. Leff whether he heard the testimony from
both officers. Mr. Leff, responded[,] "yes." The [trial] court then
asked, "Do you have any reason to doubt Officer Dooley's
statement when he indicated that in his opinion, he felt
[Appellant] was impaired? Do you have any reason to challenge
that information, that he believes [Appellant] was impaired?" Mr.
Leff responded, "no." The [trial] court then asked, "And you heard
Officer Shead's [testimony] that [] when [Appellant arrived at] the
police station, he observed [Appellant] and he believed he was
slightly impaired. Do you have any reason to believe that
testimony to be false?" Mr. Leff responded, "I have no reason to
believe that is false."
Trial Court Opinion, 12/18/19, at 2-5 (record citation, extraneous
capitalization, ellipses, and original brackets omitted). Upon finding sufficient
evidence to convict Appellant of DUI-controlled substance, the trial court
stated,
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[N]ot only did the arresting officer, Officer Dooley, observe
[Appellant] being impaired but another officer, Officer Shead, also
noticed the impairment of [Appellant]. Further, both of the
officers[,] who[] were not together[,] observed almost the same
type of behavior from [Appellant]. Additionally, [Appellant’s] own
expert stated that he had no reason to challenge [Appellant]
being impaired [as established by] Officer Shead[’s] and Officer
Dooley's testimony or to think that the officers' testimony was
false. Additionally, [Appellant’s] own counsel admitted that
[Appellant] was impaired at the time of the incident.[8]
[Appellant’s] counsel stated, "[T]he blood [test results were]
suppressed at trial, so [the] testimony [] heard from the officer
was just that [Appellant] was impaired [and] under the influence
of [a] controlled substance. [The trial court] did not hear evidence
at the time of trial as to what exact substance that was.[9]
[Appellant] does have prescriptions for some but not all of those
controlled substance[s]." . . . [T]hrough the testimony of the
[o]fficers and [Appellant’s] own counsel, and the fact that
[Appellant’s] counsel admitted that [Appellant] was, in fact,
impaired, there was enough sufficient evidence to prove that
[Appellant] was driving impaired while under the influence [of] a
controlled substance.
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8 Appellant’s counsel did not admit at trial that Appellant was impaired by a
controlled substance at the time of the incident. Rather, the record
demonstrates that at the time of sentencing and in response to the trial
court’s question pertaining to Appellant’s “drug of choice in his case” and the
Commonwealth’s statement that Appellant used cannabis, alprazolam,
oxycodone, and PCP, Appellant’s counsel acknowledged that Appellant had
“prescriptions for some but not all of those” controlled substances. N.T.,
2/28/19, at 4-5. Counsel’s statement at sentencing, however, did not
constitute an admission of guilt for purposes of convicting Appellant of the
aforementioned crime.
9 Officer Dooley testified at trial that Appellant was impaired by the controlled
substance PCP. Although no forensic testing was performed to confirm that
the controlled substance, which impaired Appellant, was PCP, the trial court
did find Officer Dooley’s testimony credible, and therefore, did hear evidence
as to the exact nature of the controlled substance, namely PCP.
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Id. at 12-14 (record citations, original brackets, and extraneous capitalization
omitted, emphasis in original).
Here, in viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, Officer Dooley observed that Appellant’s
eyes were glassy, he had a glazed-over appearance with a “thousand-yard
stare,” his speech was slow and garbled, he repeated himself in conversation,
and his clothing was disheveled, including, inter alia, that he was wearing his
coat inside-out. N.T., 11/29/18, at 7-8. Officer Dooley smelled a strong odor
emanating from Appellant’s person, which Officer Dooley, upon receiving
subsequent training, identified as PCP. Id. at 10-11; see also Gause, 164
A.3d at 538 (finding that evidence of an odor from a controlled substance is
independent evidence of impairment that does not require expert testimony).
Officer Dooley opined that Appellant’s appearance and the odor of PCP
established that Appellant was under the influence of a controlled substance
such that he was unable to safely operate a vehicle, as demonstrated by his
erratic, high-speed driving. N.T., 11/29/18, at 12; see also Gause, 164 A.3d
at 539 (noting that “staggering, stumbling, glassy or bloodshot eyes, and
slurred speech” are “ordinary signs of [impairment] discernable by a
layperson”). When asked why he activated his police cruiser lights and siren
in an attempt to stop Appellant, Officer Dooley stated that Appellant operated
his vehicle at a high rate of speed, passed other vehicles on the roadway by
using the wrong lane of travel, and drove in an erratic manner. N.T.,
11/29/18, at 36.
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Officer Dooley’s observation of Appellant and his determination of
Appellant’s impairment were further supported by Officer Shead who observed
Appellant having repetitive speech, lightly glassy eyes, and slightly slow
movement. Id. at 38. Officer Shead opined that Appellant showed “slight
signs of impairment”. Id. at 40.
Based upon the totality of the circumstances, we find there was
sufficient evidence to enable the trial court, as fact-finder, to find that
Appellant was under the influence of a controlled substance (PCP) to a degree
that impaired his ability to safely operate his vehicle beyond a reasonable
doubt. Therefore, Appellant’s first and second issues are without merit.
In his final issue, Appellant claims that the verdict was against the
weight of the evidence. Our standard of review and scope of review of weight
claims are as follows:
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. Because the trial judge
[]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[, or is not,] against the
weight of the evidence. One of the least assailable reasons for
granting or denying a new trial is the [trial] 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.
Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). “[A]n appellate
court's role is not to consider the underlying question of whether the verdict
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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, 444 (Pa. 2003)
(citation omitted), cert. denied, 542 U.S. 939 (2004). The trial court abuses
its discretion “where the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias[,] or ill-will.” Horne, 89 A.3d at 285-286 (citation
omitted). “The weight of the evidence is 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. Small, 741 A.2d 666, 672
(Pa. 1999) (citation omitted). In order for an appellant to prevail on a weight
of the evidence claim, “the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the [trial] court.” Commonwealth
v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) (citation and internal
quotation marks omitted), appeal denied, 833 A.2d 143 (Pa. 2003).
Here, Appellant argues,
The [trial] court's credibility determination regarding Officer
Dooley's testimony was against the weight of the evidence given
the dramatic inconsistencies in his averments. The officer's
original observations recorded in his police paperwork included
dilated pupils, slurred speech, and a strong odor of alcohol. Two
years later, at trial, the officer testified to an entirely different set
of observations: Appellant's pupils were pinpoint; his words were
garbled; there was a strong odor [of] PCP rather than alcohol. The
officer testified that his averments concerning Appellant's pupils
[] changed because of his confusion about terminology, that the
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inconsistency in his identification of the odor was attributable to
having realized based on subsequent training that what he
smelled was PCP, despite the fact that his subsequent training
provided no opportunity to actually smell PCP, the odor of which
somebody might have been described to him "at some point." He
also testified that although he [] experienced the smell of PCP
twice prior to the date of the incident and that he was already
aware that PCP had a strong chemical odor, nothing in the
paperwork even vaguely [referred] to such a smell or to an
unknown odor. Moreover, he testified that his ten years of
experience as a bartender made him acutely aware of the odor of
alcohol in all its forms.
Appellant’s Brief at 24-25.
In so arguing, Appellant challenges that trial court’s credibility
determination of Officer Dooley’s testimony, arguing that due to the alleged
inconsistency between the officer’s testimony and his police report, regarding,
inter alia, the condition of Appellant’s pupils and the nature of the odor the
officer smelled on Appellant’s person, the verdict was against the weight of
the evidence. At trial, the trial court credited Officer Dooley’s testimony,
stating,
[W]hatever Officer Dooley smelled, is what he smelled. [T]he
[trial] court believes in his truthfulness in coming to the district
attorney. The [trial] court believes his statement when he
states[,] "I know what I smelled now," based upon whatever
happened that helped him to come to a final conclusion in his mind
as to what he smelled. The [trial] court has found cases where
police officers have manipulated facts to get to an end. The [trial]
court does not find that based upon this testimony.
N.T., 11/29/18, at 79 (extraneous capitalization and paragraph formatting
omitted). In so stating, the trial court, as factfinder, cited its credibility
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determination of Officer Dooley as a factor in reaching its decision to convict
Appellant of the aforementioned crime.
Here, Appellant, in setting forth the same argument and challenges to
the credibility of Officer Dooley’s testimony as were presented at trial, asks
this Court to step into the shoes of the trial court in order that we might
reassess the credibility of the witnesses and reweigh the evidence in the hopes
of reaching a different verdict. It is not for this Court to undertake such an
exercise. See Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013)
(stating, it is not appropriate for an appellate court to step “into the shoes of
the trial [court] and revisited the underlying question of whether the verdict
was against the weight of the evidence” (citation omitted)). This Court “will
not substitute its judgment for that of the factfinder, which is free to assess
the credibility of witnesses and to believe all, part, or none of the evidence
presented.” Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa. Super. 2017)
(citations omitted), appeal denied, 174 A.3d 558 (Pa. 2017).
Based upon our review of the record, we cannot conclude that the trial
court abused its discretion in finding that Appellant’s conviction was not
contrary to the weight of the evidence. Therefore, Appellant’s third issue is
without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/20
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