Com. v. Schooley, J. ( 2021 )

J-S08044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORDAN ALLYN SCHOOLEY :
:
Appellant : No. 1101 MDA 2020
Appeal from the Judgment of Sentence Entered July 30, 2020
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-SA-0000030-2020,
CP-28-SA-0000031-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORDAN ALLYN SCHOOLEY :
:
Appellant : No. 1102 MDA 2020
Appeal from the Judgment of Sentence Entered July 30, 2020
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-SA-0000030-2020,
CP-28-SA-0000031-2020
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 15, 2021
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S08044-21
Appellant Jordan Allyn Schooley appeals from the Judgment of Sentence
entered in the Court of Common Pleas of Franklin County on July 30, 2020,
following his convictions of two counts of Driving While Operating Privilege is
Suspended or Revoked.1 We affirm.
Appellant was charged with two counts of Driving While Operating
Privilege is Suspended or Revoked at separate dockets as a result of two,
distinct incidents that occurred on March 8, 2020. On May 29, 2020, a
summary trial pertaining to both dockets was held in Appellant’s absence.
Consequently, Appellant was found guilty of both charges. Appellant retained
counsel, and counsel filed a summary appeal to the Franklin County Court of
Common Pleas. A Summary Appeal Hearing de novo was held on July 30,
2020, following which Appellant was again found guilty of both charges.
Appellant filed a timely notice of appeal on August 25, 2020, and in its
Order entered on August 26, 2020, the trial court directed Appellant to file a
concise statement of the matters complained of on appeal. Appellant filed the
same on September 16, 2020, and raised therein challenges to the sufficiency
and weight of the evidence. The trial court filed its Opinion pursuant to
Pa.R.A.P. 1925(a) on September 24, 2020.
In its Opinion, the court summarized the relevant facts pertaining to
both incidents as follows:
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1 75 Pa.C.S.A. § 1543(b)(1)(ii).
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a. First Incident
Pennsylvania State Police Trooper Andrew Reid
(hereinafter “Reid”) first came into contact with Appellant around
1 A.M. on March 8, 2020. Trooper Reid was traveling north on
Route 11, Guilford Township. Franklin County, Pennsylvania when
he got behind a red Audi that had an expired registration. See
Notes of Testimony, 7/30/2020, at 6.6 Trooper Reid conducted a
traffic stop on the vehicle and the driver “immediately identified
himself as Jordan Schooley7 and related that he knew why I pulled
him over and it was because the registration was expired and that
he did not have a current license.” Id. Trooper Reid obtained
Appellant’s information and verified that Appellant was Jordan
Schooley, that Appellant’s license was suspended (DUI related),
and that the vehicle registration was expired. See N.T., at 6-7. [2]
Following this, Trooper Reid issued Appellant his first citation for
Driving While Operating Privilege is Suspended or Revoked and
advised Appellant to find an alternate way to his destination. See
N.T., at 7.
b. Second Incident
Trooper Reid testified that the second incident occurred
approximately twenty (20) hours later on March 8, 2020. Id.
Trooper Reid was dispatched to Peters Township, Franklin County,
Pennsylvania for an abandoned vehicle. Id. When he arrived on
scene, he determined the car to be the same red Audi that he had
pulled over earlier that day. Id. Appellant was not present in the
car at this time. Id. Trooper Reid spoke with the
Complainant/Witness, Michelle Coursey, and ran the tag of the
vehicle. See N.T., at 8. The tag came back as a match to the
same car Trooper Reid had previously pulled over and the
registration was still expired. Id. In his investigation, Trooper
Reid ran Appellant’s driving record, which the Commonwealth
presented at trial as Commonwealth’s Exhibit 1. See N.T., at 9.
Trooper Reid confirmed that Appellant’s license was suspended on
____________________________________________
2The record reveals that Appellant had a prior Driving While Operating
Privilege is Suspended or Revoked conviction in October of 2017. See
Commonwealth’s Exhibit 1, Appellant’s Certified Driving History, at 5.
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March 8, 2020 due to a DUI license suspension. Id. The last time
Appellant had a valid license was January of 2012. Id.
Michelle Coursey (hereinafter “Coursey”) also testified on
behalf of the Commonwealth. Coursey resides at 10830 Elter
Avenue in Mercersberg, Pennsylvania.8 See N.T., at 11. Coursey
testified that it was approximately 10:30 P.M. when a young man
who “looked messed up on something” knocked on her door. Id.
Coursey ultimately identified Appellant as the young man who
came to her door. See N.T., at 13. Coursey stated she opened
the door and Appellant stated to her that he had run out of gas
and asked if she would help him. See N.T., at 11. Coursey related
that she did not have any gas and that she had called the police
to help him and/or transport him to get some gas. Id. Appellant
told Coursey that the police would not help him because he did
not have a driver’s license. Id. Appellant then went back to the
red Audi, grabbed a duffle bag out of the car and ran into the field
across the street. See N.T., at 12. Coursey testified she did not
think Appellant had actually run out of gas, as he backed the car
into their driveway. Id. Coursey stated that she did not see him
physically driving the vehicle, but she did see him in the vehicle
and the keys were in the ignition. See N.T., at 14-15.
Additionally, Coursey testified that Appellant was alone and no one
else was with him. See N.T., at 16.
___
6Hereinafter, “N.T., at”
7Appellant in this matter.
8Mercersberg is located within Franklin County.
Trial Court Opinion, filed 9/24/20, at 4-5.
In his brief, Appellant raises the following questions for this Court’s
review:
I. Was the evidence presented by the Commonwealth at
Summary Appeal Trial insufficient to prove beyond a reasonable
doubt that [Appellant] was guilty of Driving While Operating
Privilege Is Suspended or Revoked?
II. Was the verdict finding [Appellant] guilty of Driving While
Operating Privilege Is Suspended or Revoked against the weight
of the evidence?
Brief of Appellant at 6.
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This Court previously discussed the applicable standards of review as
follows:
The distinction between these two challenges is critical. A
claim challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas a claim
challenging the weight of the evidence if granted would permit a
second trial.
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency claim
the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence[ ] concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. 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. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is against
the weight of the evidence do not sit as the thirteenth juror.
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.
Commonwealth v. Rivera, 238 A.3d 482, 495–96 (Pa.Super. 2020) (citation
omitted).
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Before we address the merits of Appellant's sufficiency and weight of
the evidence challenges herein, we must determine whether he has preserved
them for our review. See Commonwealth v. Richard, 150 A.3d 504, 517
(Pa.Super. 2016). Initially, the trial court found that Appellant had waived his
challenge to the sufficiency of the evidence for his failure to state which
element or elements the Commonwealth had failed to prove beyond a
reasonable doubt. Trial Court Opinion filed 9/24/20, at 2-3. The trial court
also found Appellant’s weight of the evidence challenge waived because
Appellant did not raise an oral motion prior to sentencing at his summary
appeal hearing. Id. at 7.
With regard to Appellant’s sufficiency of the evidence claim,
[w]e have repeatedly held that [i]n order to preserve a challenge
to the sufficiency of the evidence on appeal, an appellant's [Rule]
1925(b) statement must state with specificity the element or
elements upon which the appellant alleges that the evidence was
insufficient. ... Therefore, when an appellant's 1925(b) statement
fails to specify the element or elements upon which the evidence
was insufficient[,] ... the sufficiency issue is waived on appeal.
Such specificity is of particular importance in cases where[ ] the
appellant was convicted of multiple crimes[,] each of which
contains numerous elements that the Commonwealth must prove
beyond a reasonable doubt.
Rivera, supra at 496 (citations and quotation marks omitted).
Section 1543 of the Motor Vehicle Code provides, in relevant part, as
follows:
(a) Offense defined.—Except as provided in subsection (b), any
person who drives a motor vehicle on any highway or trafficway
of this Commonwealth after the commencement of a suspension,
revocation or cancellation of the operating privilege and before the
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operating privilege has been restored is guilty of a summary
offense and shall, upon conviction or adjudication of delinquency,
be sentenced to pay a fine of $200.
(b) Certain offenses.--
(1) The following shall apply:
(i) A person who drives a motor vehicle on a highway
or trafficway of this Commonwealth at a time when the
person's operating privilege is suspended or revoked as a
condition of acceptance of Accelerated Rehabilitative
Disposition for a violation of section 3802 (relating to driving
under influence of alcohol or controlled substance) or the
former section 3731, because of a violation of section
1547(b)(1) (relating to suspension for refusal) or 3802 or
former section 3731 or is suspended under section 1581
(relating to Driver's License Compact) for an offense
substantially similar to a violation of section 3802 or former
section 3731 shall, upon a first conviction, be guilty of a
summary offense and shall be sentenced to pay a fine of
$500 and to undergo imprisonment for a period of not less
than 60 days nor more than 90 days.
(ii) A second violation of this paragraph shall
constitute a summary offense and, upon conviction of this
paragraph, a person shall be sentenced to pay a fine of
$1,000 and to undergo imprisonment for not less than 90
days.
75 Pa.C.S.A. 1543(a)-(b).
In his concise statement, Appellant alleged: “The evidence presented
by the Commonwealth at summary appeal trial was insufficient to sustain a
conviction for Driving While Operating Privilege Is Suspended or Revoked.”
See Concise Statement of Matters Complained of on Appeal, filed 9/16/20, at
¶ 1 (emphasis added).
As the trial court finds, this allegation fails to specifically articulate the
element of the crime for which he believes the evidence had been insufficient.
Trial Court Opinion, filed 9/24/20, at 3. See also Rivera, supra. This failure
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is especially significant herein were Appellant was charged with and convicted
of two distinct counts of Driving While Operating Privilege is Suspended or
Revoked, yet Appellant’s concise statement challenges only the evidence to
sustain “a conviction” thereof. Therefore, we agree with the trial court that
Appellant has waived his challenge to the sufficiency of the evidence, for he
not only failed to specify the element or elements that were allegedly not
sufficiently established but he also failed to clarify which conviction arising
from March 8, 2020, he wished to challenge.3
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3Even if Appellant’s Pa.R.A.P. 1925(b) statement could be read to preserve a
challenge to the sufficiency of the evidence, we would agree with the trial
court’s decision on this issue.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth's burden
may be met by wholly circumstantial evidence and any doubt
about the defendant's guilt is to be resolved by the fact[-]finder,
which was the court herein, unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2013) (citations
omitted).
In its alternative analysis of the merits, the trial court concluded as
follows:
Viewing the facts presented in the light most favorable to
the Commonwealth as the verdict winner, there is sufficient
evidence to support our finding that the vehicle was in fact driven
on the roads of the Commonwealth, Appellant was driving the
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____________________________________________
vehicle during both incidents, and his license was suspended
during both incidents. The testimony provided by Trooper Reid
and Michelle Coursey provided both direct and circumstantial
evidence that [Appellant] had driven a motor vehicle while his
operator’s privilege was suspended or revoked in direct violation
of the statute. As we stated on the record following the summary
appeal trial;
To [the [c]ourt] it is obvious that [Appellant] was the
driver of both vehicles. He was seen, I believe the
Trooper said, around 1:00 A.M. operating the vehicle.
The trooper cited him and told him not to drive
anywhere. He had to find another way to get to his
destination. And then 20 hours later, [Appellant] is
observed in and around the same vehicle.
[Appellant] admits to the Complainant that he ran out of
gas. The vehicle got into her driveway. Either he
pushed it because it was out of gas or it was driven into
this position by [Appellant].
As far as the [c]ourt is concerned it doesn’t matter.
[Appellant] said he was out of gas. [Appellant] was
there with the vehicle. The keys were in the ignition. To
[the [c]ourt]. . . the only reasonable inference to draw
from these circumstances is that [Appellant] was
operating the vehicle.
And the [c]ourt is also satisfied that he had no license to
operate the vehicle at the time. So the [c]ourt is going
to find [Appellant] guilty on both dockets.
See N.T., at 20-21.
Trial Court Opinion, filed 9/24/20, at 6.
Upon review, even if Appellant had not waived his sufficiency claim, we
discern no abuse of discretion on the part of the trial court. Accordingly,
Appellant is not entitled to relief on this issue.
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When considering Appellant's weight of the evidence claim, we are
mindful that typically:
[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. Pa.R.Crim.P. 607; Failure to properly
preserve the claim will result in waiver, even if the trial court
addresses the issue in its opinion.
Riviera at 497 (citations omitted).
At the outset, we observe that post-sentence motions are prohibited in
summary appeals following a trial de novo. See Pa.R.Crim.P. 720(D) (stating
that “[t]here shall be no post-sentence motion in summary case appeals
following a trial de novo in the court of common pleas.”). However, while
Pa.R.Crim.P. 720(D) prohibits preservation of a weight of the evidence claim
via post-sentence motion, it does not vitiate a defendant’s responsibility to
preserve such challenges before the trial court. See Commonwealth v.
Dougherty, 679 A.2d 779, 784 (Pa.Super. 1994) (stating that appellant's
challenge to the weight of the evidence in a summary appeal was preserved
where the “trial [court] explicitly addressed ... weight of the evidence at the
close of appellant's trial[,]” in the absence of post-sentence motions).
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Additionally, Pa.R.Crim.P. 607(A) states that a challenge to the weight of the
evidence may be preserved orally, on the record, or by written motion at any
time before sentencing. See Pa.R.Crim.P. 607(A)(1), (2); see also
Pa.R.Crim.P. 607 Cmt. (stating “[t]he purpose of this rule is to make it clear
that a challenge to the weight of the evidence must be raised with the trial
judge or it will be waived.”).
Herein, as the trial court states, Appellant did not raise a challenge to
the weight of the evidence claim in a pre-sentence motion, nor did he address
this issue orally prior to or during sentencing. Thus, we again agree with the
trial court’s finding that Appellant waived any challenge to the verdict as
against the weight of the evidence. See Pa.R.Crim.P. 607(A); see also
Commonwealth v. Sherwood, 983 A.3d 483, 494 (Pa. 2009) (stating that
a challenge to the weight of the evidence is waived unless it is first presented
to the trial court); Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.
Super. 2008) (stating that when an issue has been waived, “pursuing th[e]
matter on direct appeal is frivolous[.]”).
In light of all of the foregoing, we deem the issues Appellant attempts
to raise herein to be waived and affirm his judgment of sentence.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/15/2021
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