Com. v. Frey, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
TIMOTHY JOHN FREY
Appellant No. 445 MDA 2019
Appeal from the Judgment of Sentence October 10, 2018
In the Court of Common Pleas of Lycoming County
Criminal Division at No: CP-41-CR-0000132-2018
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 24, 2020
Appellant, Timothy John Frey, appeals from his judgment of sentence of
35 days to six months’ imprisonment for driving under the influence of alcohol
(“DUI”) and driving under the influence of a high rate of alcohol.1 Appellant
argues that the evidence was insufficient to sustain these convictions, and
that the convictions were against the weight of the evidence. We affirm.
The evidence adduced during trial reveals the following. On the evening
of November 30, 2017, Appellant met with acquaintances at a cabin to discuss
an upcoming hunting trip. N.T., 6/4/18, at 65-67. He arrived at the cabin at
about 7:15 p.m. and began consuming beer. Id. at 66. At about 7:30 p.m.,
he had dinner and consumed a second beer. Id. at 67. After dinner, he and
his acquaintances held a hunting meeting until 10:30 p.m. Id. After the
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1 75 Pa.C.S.A. §§ 3802(a)(1) and (b), respectively.
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meeting concluded, Appellant remained in the cabin sharing hunting stories,
but he eventually left the cabin and drove his Toyota Tundra “down the cabin
road, down to Route 14, and then Route Old 15 to Saint Michaels Road.” Id.
at 65, 68. Appellant’s car was involved in an accident on Saint Michaels Road.
At approximately 12:16 a.m., Pennsylvania State Police Trooper
Daugherty was dispatched to the accident. Id. at 5-6. He arrived on the
scene at approximately 12:35 a.m. and observed a Toyota Tundra partially on
the roadway with noticeable damage and deployed airbags that rendered the
vehicle inoperable. Id. at 8. There was an unopened can of beer in the cup
holder of the vehicle and an odor of alcohol inside the vehicle. Id. at 12. The
vehicle had struck and partially sheared off a utility pole on the left side of the
road. Id. at 8-9. The driver of the vehicle was not at the scene. Id. at 12.
Trooper Daugherty determined that the crash had occurred recently,
because the vehicle’s hood was warm to the touch and the weather conditions
were cool (thirty-two degrees). Id. He walked around the perimeter of the
truck and saw no signs of any deer or other animals or braking tracks. Id. at
13. There were no adverse road or weather conditions. Id. at 5. He ran the
vehicle’s license plate number and determined it was registered to Appellant.
Id. at 9. Appellant’s address was 1604 Saint Michaels Road, approximately
one and a half miles from the crash site. Id. at 10.
After placing flares around the vehicle and calling a tow company to
recover the vehicle, Trooper Daugherty went to Appellant’s address to speak
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with him. Id. at 13-14. Pennsylvania State Police regulations require troopers
to speak to the driver of any vehicle involved in a crash to get the driver’s
view of the event. Id. at 14. Trooper Daugherty also was concerned about
Appellant’s health, because the vehicle was “in pretty bad shape,” and the
trooper “wanted to make sure he was okay.” Id. at 13-14.
Appellant’s housemate, Ginere Bartle, answered the door when Trooper
Daugherty arrived at Appellant’s address. Id. at 14, 56-57. Bartle testified
that she picked Appellant up while he was walking home, and he did not smell
of alcohol at that time. Id. at 54-55. Bartle added, however, that when
Trooper Daugherty arrived at the house later that night, she went to wake up
Appellant and noticed that he “smelled of alcohol” and “he could barely speak
he was slurring so badly.” Id. at 57.
Appellant came to the door to speak with Trooper Daugherty. The
trooper observed that Appellant appeared disheveled, sluggish, and sleepy,
with a strong odor of alcohol emanating from his person. Id. at 15. Appellant
admitted to consuming alcoholic beverages and driving and crashing his
vehicle. Id. at 16. Appellant claimed that the crash occurred at approximately
9:00 in the evening, which was inconsistent with Trooper Daugherty’s
observation that the vehicle’s hood was still warm. Id.
Appellant insisted that he was intoxicated because he consumed beer
after arriving home. Id. at 16-17. Trooper Daugherty allowed Appellant to
look for empty cans to validate his story. Id. at 39. Appellant searched for
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about twenty minutes throughout his residence and in barrels in the back yard,
but he could not find any cans. Id. at 16-17. There was no other evidence
of alcohol consumption in the home. Id. at 17-18.
Appellant consented to field sobriety testing, stating he would have no
problem successfully completing the tests. Id. at 19. Trooper Daugherty took
Appellant to the flat surface of his driveway to conduct the tests. Id. at 20.
Appellant was unsuccessful in completing the walk-and-turn and the one-
legged stand tests. Id. at 20-23. He swayed back and forth, raised his arms,
took an incorrect number of steps, and missed heel-to-toe touches during the
walk-and-turn. Id. at 21. He raised his arms and had trouble balancing
during the one-legged stand. Id. at 23.
Trooper Daugherty arrested Appellant for DUI and transported him to
the Williamsport Hospital for a blood draw. Id. at 24. They arrived at the
hospital fifteen to twenty minutes later, at approximately 2:15 a.m. Id. at
24, 45. Muncy Borough Patrolman Kenneth Flewelling began processing
Appellant at the hospital and observed that he had a strong odor of alcohol
and bloodshot, watery and glassy eyes. Id. at 48. Throughout processing,
Appellant hiccupped, exhibited signs of dry mouth and appeared uneasy in the
chair. Id. He also exhibited mood swings, a common sign of intoxication.
Id. at 49.
Patrolman Flewelling read Appellant his Miranda rights, and the DL-26
and implied consent warnings. Id. at 46. Appellant refused to sign the DL-
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26 form but consented to a blood draw. Id. at 47. His blood was drawn at
2:35 a.m., at least three hours and five minutes after the accident, and sent
to NMS labs. Id. at 27. Trooper Daugherty later received the lab report,
which indicated a blood alcohol content (“BAC”) of .151%. Id.
Appellant was charged with the aforementioned DUI offenses in Counts
I and II of the information along with other summary offenses that are not at
issue in this appeal. Appellant testified during trial and claimed that he had
one beer with dinner early in the evening but did not drink after 8:30 p.m.
Id. at 66. He admitted having an accident while driving home that night and
walking home after the accident. Id. at 66, 71. Contrary to what he told
Trooper Daugherty at his house, Appellant testified that the accident was at
“a little after eleven, eleven thirty.” Id. at 66. He claimed that the accident
occurred because he tried to avoid a deer while negotiating a turn in the road.
Id. at 68. Trooper Daugherty, however, did not see any skid marks on the
road that would have indicated an attempt to avoid an animal in the roadway.
The trial court, sitting without a jury, found Appellant guilty on all
counts. On October 16, 2018, the court imposed sentence. Appellant filed
timely post-sentence motions challenging the sufficiency and weight of the
evidence. The court denied all post-sentence motions, and Appellant filed a
timely notice of appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
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I. Was the evidence presented at trial insufficient to sustain the
verdict of guilty to count I of the information because the
Commonwealth was unable to prove beyond a reasonable doubt
that [Appellant] imbibed a sufficient amount of alcohol to render
him incapable of safely driving at the time of the accident?
II. Was the evidence presented at trial insufficient to sustain the
verdict of guilty to count II of the information because the
Commonwealth was unable to prove beyond a reasonable doubt
that [Appellant’s] BAC exceeded the legal limit within two hours
of driving his vehicle because it failed to draw his blood within
those two hours and provided no good cause exception for this
failure?
III. Was the verdict of guilty to count I and II against the weight
of the evidence because [Appellant] and [] Bartle testified credibly
while the Commonwealth did not?
Appellant’s Brief at 8.
Appellant first argues that the evidence was insufficient to support his
conviction in Count I for DUI—general impairment. We determine “whether
the evidence admitted at trial, as well as all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the verdict winner, are
sufficient to support all the elements of the offense.” Commonwealth v.
Cline, 177 A.3d 922, 925 (Pa. Super. 2017). “This standard is equally
applicable to cases where the evidence is circumstantial rather than direct so
long as the combination of the evidence links the accused to the crime beyond
a reasonable doubt.” Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.
Super. 2013).
Section 3802(a)(1) of the Vehicle Code provides that “an individual may
not drive, operate or be in actual physical control of the movement of a vehicle
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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.” 75 Pa.C.S.A. § 3802(a)(1). Under
this statute,
driving is proscribed after the imbibing of sufficient alcohol such
that the individual is rendered incapable of safely driving. In
contrast to subsections 3802(a)(2), (b), and (c), all of which
require that the offender’s blood alcohol level reach a certain
specified elevation within two hours of driving, there is no time
element explicitly delineated in subsection 3802(a)(1). However,
to avoid absurd applications of subsection 3802(a)(1), a time
element obviously must be inferred . . . [T]he only relevant time
period is that span of time during which an individual is incapable
of safely driving due to alcohol intoxication.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). Section
3802(a)(1) is an “at the time of driving” offense, i.e., an offense requiring
proof that the defendant was “driving, operating, or in actual physical control
of the movement of a vehicle during the time when he or she was rendered
incapable of safely doing so due to the consumption of alcohol.” Id. The
Commonwealth is not required to prove, however, that the defendant did not
drink any alcohol after he stopped driving.2 Id. at 879 n.6.
Section 3802(a)(1) permits multiple types of evidence to prove DUI-
general impairment, including BAC evidence:
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2 Segida held that the Commonwealth does not have the burden to prove that
the defendant did not drink alcohol after “the accident.” Id. The Court used
this phrase because the defendant in that case, like Appellant herein, was
involved in a one-car accident.
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The types of evidence that the Commonwealth may proffer in a
subsection 3802(a)(1) prosecution include but are not limited to,
the following: the offender’s actions and behavior, including
manner of driving and ability to pass field sobriety tests;
demeanor, including toward the investigating officer; physical
appearance, particularly bloodshot eyes and other physical signs
of intoxication; odor of alcohol, and slurred speech. Blood alcohol
level may be added to this list, although it is not necessary and
the two hour time limit for measuring blood alcohol level [3] does
not apply. Blood alcohol level is admissible in a subsection
3801(a)(1) case only insofar as it is relevant to and probative of
the accused’s ability to drive safely at the time he or she was
driving. The weight to be assigned these various types of
evidence presents a question for the fact-finder, who may rely on
his or her experience, common sense, and/or expert testimony.
Regardless of the type of evidence that the Commonwealth
proffers to support its case, the focus of subsection 3802(a)(1)
remains on the inability of the individual to drive safely due to
consumption of alcohol—not on a particular blood alcohol level.
Id. at 879. Notably, BAC evidence is admissible under Section 3802(a)(1)
even if the Commonwealth does not relate it back to the time of driving.
Commonwealth v. Thur, 906 A.2d 552, 565-66 (Pa. Super. 2006). The
amount of time elapsed between driving and BAC testing does not render the
test results inadmissible but only affects the weight of the evidence. Id.Construed in the light most favorable to the Commonwealth, the
evidence demonstrates beyond a reasonable doubt that Appellant was
intoxicated at the time he drove his vehicle home. Numerous facts, viewed
together, firmly establish Appellant’s guilt, including: (1) Appellant’s
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3 This two-hour time limit is found in 75 Pa.C.S.A. § 3802(g), which we discuss
in greater detail below while examining Appellant’s challenge to the sufficiency
of the evidence underlying his conviction for DUI-Driving Under the Influence
of a High Rate of Alcohol.
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admission during trial that he consumed alcohol at dinner that evening; (2)
Appellant’s admission during trial that he drove his vehicle home that evening
but was involved in an accident between 11:00 and 11:30 p.m.; (3) the
damage to Appellant’s vehicle and utility pole at the accident scene along with
deployed airbags that rendered the vehicle inoperable; (4) the odor of alcohol
inside the vehicle and the unopened can of beer in the cup holder; (5) the lack
of any adverse weather or road conditions at the accident scene; (6) the
absence of skid marks on the road that would have indicated an attempt to
avoid an animal in the roadway; (7) Appellant’s flight from the accident scene
to his house one and a half miles away; (8) the trooper’s interaction at
Appellant’s residence with Ginere Bartle, who went to wake up Appellant and
noticed that he “smelled of alcohol” and “he could barely speak he was slurring
so badly;” (9) Appellant’s disheveled, sluggish, and sleepy appearance when
he came to the door and his strong odor of alcohol; (10) Appellant’s failure to
find any empty beer cans to support his claim to the trooper that he consumed
alcohol after arriving home; (11) Appellant’s inability to perform field sobriety
tests successfully despite bragging that they would pose no problem; (12)
Patrolman Flewelling’s observations at the hospital that Appellant smelled
strongly of alcohol, had bloodshot and watery eyes, hiccupped, showed signs
of dry mouth, appeared uneasy, and exhibited mood swings; and (13)
Appellant’s BAC of .151%. See Commonwealth v. Teems, 74 A.3d 142,
146 (Pa. Super. 2013) (evidence of guilt sufficient under section 3802(a)(1)
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where officer responding to call reporting disabled vehicle observed defendant
sitting in driver’s seat of vehicle, in lane of traffic, depressing the brakes, car
had lost its tires, defendant could not recall if he struck anything or when or
where accident might have occurred, officer noticed strong odor of alcohol
from defendant, defendant had red, glassy eyes and slurred speech,
defendant failed to blow properly into portable alcohol breath test machine,
and blood test at hospital revealed that he had BAC of .143%);
Commonwealth v. O’Bryon, 820 A.2d 1287, 1291-92 (Pa. Super. 2003)
(evidence supported defendant’s DUI conviction where officer testified that
defendant ran her car into parked car and left scene, was confused and
staggering, had alcohol on her breath, and could not maintain balance or
locate her license and registration); Commonwealth v. Leighty, 693 A.2d
1324, 1327 (Pa. Super. 1997) (evidence of glassy and bloodshot eyes,
admittance of alcohol consumption, failure of two field sobriety tests and
minor accident before arrest sufficient to support conviction under former DUI
statute).
Appellant attempts to construe the evidence in the light most favorable
to himself instead of to the Commonwealth. He stresses that Trooper
Daugherty said only that the hood of the vehicle was warm at the accident
scene, not the engine. Common sense dictates, however, that since the hood
was warm on a 32-degree evening, the engine underneath the hood was warm
as well. Appellant also contends that the Commonwealth failed to rule out the
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possibility that he became intoxicated after arriving home. He asserts that
his preliminary breath test at his residence was “only” .105%, and his BAC
rose to .151% at the hospital because he consumed alcohol after arriving
home. As stated above, however, the Commonwealth does not have the duty
to prove that Appellant did not drink any alcohol after he stopped driving.4
Segida, 985 A.2d at 879 n.6. Moreover, the Commonwealth disproved
Appellant’s claim that he consumed alcohol after arriving home with evidence
that he could not produce empty beer cans to Trooper Daugherty despite
having twenty minutes to search for them. In any event, his preliminary
breath test of “only” .105% at his home was itself well above the legal limit
of .08%.
In short, the evidence, viewed collectively, supports the verdict of guilt
under Section 3802(a)(1). We reject Appellant’s challenge to the sufficiency
of the evidence on Count I of the information.
In his second argument, Appellant argues that the evidence was
insufficient to sustain his conviction in Count II for DUI-Driving Under the
Influence of a High Rate of Alcohol under 75 Pa.C.S.A. § 3802(b), because the
police failed to draw his blood within two hours after driving, and the
Commonwealth failed to show good cause for the delay. We disagree.
Section 3802(b) provides:
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4 Again, Segida held that the Commonwealth does not have the burden to
prove that the defendant did not drink alcohol after “the accident.” Id.
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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 alcohol concentration in the
individual’s blood or breath is at least 0.10% but less than 0.16%
within two hours after the individual has driven, operated or been
in actual physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(b). In a Section 3802(b) prosecution, when the blood
test does not take place within two hours after the defendant drives, operates
or is in actual physical control of the vehicle, test results are subject to
exclusion unless the Commonwealth proves good cause for the delay in
obtaining a blood test and the defendant did not imbibe alcohol between his
arrest and his blood test.5 75 Pa.C.S. § 3802(g).
The record is clear that Appellant did not imbibe any alcohol between
the time of his arrest and time of his blood test, since Trooper Daugherty
immediately transported him to the hospital following his arrest. Accordingly,
we turn to the other question: whether the Commonwealth showed good
cause for the more than three-hour delay between Appellant’s operation of his
vehicle and his blood test.
There are three published cases on the subject of good cause under
Section 3802(g) that we examine in chronological order. In the first, we held
that good cause for delay over two hours occurred where the DUI suspect fled
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5This is unlike prosecutions under Section 3802(a)(1), which, as discussed
above, does not have any two-hour requirement.
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the scene of a crash and was not apprehended by police until after significant
delay. Commonwealth v. Eichler, 133 A.3d 775, 786 (Pa. Super. 2016).
Second, in Commonwealth v. Starry, 196 A.3d 649 (Pa. Super. 2018),
aff’d, —A.3d—, 2020 WL 355367 (Pa., Jan. 22, 2020), our Supreme Court
expressed “circumspection” about this Court’s analysis of good cause. The
defendant in Starry was hospitalized after an automobile accident. Her BAC
was .304%, but as much as two hours and forty minutes may have elapsed
between the time she stopped driving and her blood test, due in large part to
the time it took to transport her to the hospital. She was charged under 75
Pa.C.S.A. § 3802(c), DUI-Highest Rate of Alcohol, which prohibits an
individual from driving when her BAC “is 0.16% or higher within two hours
after [she] has driven.” Id. Prior to trial, the trial court dismissed this charge
on the ground that the Commonwealth failed to establish good cause under
Section 3802(g) for delaying the blood test. This Court reversed, reasoning
that “the removal of a defendant to a hospital so that she be provided proper
treatment constitutes good cause for the delay in obtaining a blood sample
within two hours.” Id., 196 A.3d at 661.
The Supreme Court affirmed but for a different reason, i.e., “[Since]
there [was] evidence of an extraordinarily elevated blood test result and the
time between the expiration of the two-hour window and testing [was]
reasonably close,” the Commonwealth could proceed to the jury without
presenting expert testimony relating the defendant’s BAC back to the two-
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hour window. Id., 2020 WL at 355367, *6. This holding, the Court observed,
“effectively mooted” the Commonwealth’s need to prove good cause under
Section 3802(g) for the delay of over two hours in obtaining the defendant’s
blood test. Id. at 7. “Nevertheless,” the Court continued in dicta, “we take
the opportunity to express circumspection about the Superior Court’s bright-
line approach to medical treatment as good cause for extending the two-hour
window under Section 3208(g)(1).” Id. “In the absence of evidence to the
contrary,” the Court wrote, “we assume that the necessity for and timing of
blood testing during the course of medical treatment will turn on
circumstance-dependent judgments by health professionals.” Id. “In certain
cases,” such as the case before the Court, it will be reasonable for the officer
not to demand a blood test, because it will be reasonable to infer from the
defendant’s “seriously impaired condition” that “a blood alcohol test for
medical purposes would ensue as promptly as possible.” Id. In other cases,
however, “these types of inferences are not warranted,” and “a demonstrated
effort, on the part of law enforcement officers seeking to pursue per se
offenses, to meet the two-hour window will be necessary before a
determination of good cause for failing to do so should attach, or a creditable
explanation as to why such efforts were not practicable must be provided. Id.
at 8.
Finally, the third, Commonwealth v. Benvenisti-Zarom, —A.3d—,
2020 WL 633005 (Pa. Super., Feb. 11, 2020), involves facts similar to Starry.
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A state trooper investigating a two-car accident observed the defendant, one
of the motorists, had a strong odor of alcohol on her breath and was clutching
her stomach in pain. The trooper rode with the defendant in an ambulance to
a helicopter, which transported her to the hospital. During the ambulance
ride, the trooper did not ask the defendant to undergo a blood test because
medical personnel were treating her. The defendant underwent a blood test
at the hospital two hours and forty minutes after the accident (coincidentally,
the same time delay as may have occurred in Starry). This Court held that
there was good cause not to administer a blood test at the accident scene,
because there was too much uncertainty about her medical condition, or
during the ambulance ride, because she was receiving medical treatment. Id.,2020 WL 633005, at *6. Although our analysis did not refer to the Supreme
Court’s decision in Starry, it was consistent with Starry’s dicta that delaying
a blood test is reasonable when the defendant first requires medical
assessment and treatment.
The lesson we learn from this trio of decisions is that we should measure
good cause under Section 3802(g) on a case-by-case basis, balancing the
need for prompt blood testing against other factors warranting or causing
delay, including but not limited to the defendant’s need for immediate medical
treatment, the defendant’s flight from an accident scene, the time it takes for
the police officer to travel to the accident scene or other relevant locations,
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and the officer’s need to investigate potential criminal activity at the accident
scene or elsewhere.
Applying this balancing test to the present case, we detect multiple valid
reasons for delay which, added together, furnish good cause for the more than
three-hour delay between Appellant’s operation of his vehicle and his blood
test. To begin, like the defendant in Eichler, Appellant fled the accident
scene, so Trooper Daugherty had to spend time finding him by running his
registration and tracking him down to his house one and a half miles away.
Next, since the accident took place in a rural area, there was an
understandable delay of at least forty-five minutes in reporting the accident
to the police and dispatching Trooper Daugherty to the scene. In addition,
there were reasonable delays resulting from travel time in this rural area, such
as the nineteen-minute interval between the dispatch to Trooper Daugherty
and his arrival at the accident scene, the time it took Trooper Daugherty to
drive to Appellant’s house, and the time it took Trooper Daugherty to drive
Appellant to the hospital. Finally, there were reasonable delays occasioned by
Trooper Daugherty’s investigation of the physical evidence at the accident
scene, his interviews of Bartle and Appellant at Appellant’s house, the time
Appellant spent attempting to find empty beer cans to bolster his claim of
drinking at home, and the time spent administering field sobriety tests to
Appellant. Viewed collectively, this array of factors established good cause
under Section 3802(g) for delaying Appellant’s blood test beyond the two-
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hour limit. Accordingly, Appellant’s challenge to the sufficiency of the
evidence underlying his conviction in Count II for DUI-Driving Under the
Influence of a High Rate of Alcohol fails.
In his third and final argument, Appellant claims that his convictions in
Counts I and II were against the weight of the evidence. Appellant argues
that the trial court failed to credit Bartle’s testimony that she picked Appellant
up while he was walking home, and that he did not smell of alcohol at that
time. This testimony, Appellant contends, demonstrates that he became
intoxicated only after arriving home. We disagree.
The law pertaining to weight of the evidence claims is well-settled:
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. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. 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 or to give them equal
weight with all the facts is to deny justice.
On appeal, our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the jury
verdict did not shock its conscience. Thus, appellate review of a
weight claim consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence. An appellate court
may not reverse a verdict unless it is so contrary to the evidence
as to shock one’s sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(citations and quotation marks omitted).
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The trial court stated in its Pa.R.A.P. 1925 opinion that the evidence did
not shock its conscience, and that it considered the testimony of all witnesses
at trial and believed the Commonwealth’s version of events. As fact-finder,
the court had the right to believe all, part or none of the evidence and to
gauge the credibility of the witnesses. The court chose not to believe Bartle’s
testimony that Appellant did not smell of alcohol when she picked him up, and
it chose to believe the Commonwealth’s version of the events. Accordingly,
we hold that the trial court acted within its discretion in finding that the verdict
did not shock its conscience.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/24/2020
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