Com. v. Baskin, D. ( 2023 )

J-S41037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEVON BASKIN :
:
Appellant : No. 464 WDA 2023
Appeal from the Judgment of Sentence Entered November 21, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003224-2022
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: December 22, 2023
Appellant, Devon Baskin, appeals from the Judgment of Sentence
entered on November 21, 2022 in the Allegheny Court of Common Pleas. We
affirm.
The relevant facts and procedural history are as follows: Appellant was
arrested on October 2, 2021, following a minor collision and was charged with
DUI – General Impairment, DUI – Highest Rate, and several summary
offenses. A suppression hearing and non-jury trial were held on October 27,
2022. At the proceedings, arresting Officer Matthew Miller of the Port Authority
Police and Ms. Toya Worthy, Appellant’s passenger, testified.
Officer Miller’s testimony established that on October 2, 2021, he
reported to the scene where a vehicle and a Port Authority bus had collided.
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* Former Justice specially assigned to the Superior Court.
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N.T. at 5. The vehicle was owned by Appellant. When the officer arrived on
the scene, he saw the previous occupants of the vehicle, a male and female,
outside the car on the sidewalk. N.T. at 6. When he asked who had been
driving the car, Appellant stated that he had been. Id. The officer detected a
slight odor of alcohol on Appellant’s breath and observed other symptoms of
intoxication such as slurred speech, glassy, watery eyes, and slow response
time, so Appellant was asked to perform a field sobriety test. N.T. at 7.
Appellant complied without incident. N.T. at 7-9. Officer Miller testified that
Appellant failed one test, passed one test, and refused to do a third when he
commented, “[I] could not do that if [I] was sober.” N.T. at 7. He was
transported to UPMC Mercy Hospital where his blood was drawn which
revealed a BAC of .247. N.T. at 31.
Ms. Worthy testified that she, not Appellant, had been driving the vehicle
and stated that it was planned before going out that she would be the
designated driver. N.T. at 36. She stated that she didn’t realize Appellant was
being arrested for DUI because it was never discussed with her and the scene
was “chaotic,” so she never told the officer at the scene that she had been the
one driving. N.T. at 37. She also stated, absent from the officer’s testimony,
that Appellant was “really belligerent” and “out there” with the police. N.T. at
37, 38. She assumed his arrest was for his behavior. N.T. at 38-39. When
asked why she had this belief even after Appellant was performing field
sobriety tests, she stated she was on a “side conversation on the phone.” N.T.
at 38.
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After the non-jury trial, Appellant was found guilty of both DUI counts1
and acquitted of the summary offenses. On November 21, 2022, Appellant
was sentenced to three to six days in prison followed by six months’ probation
but was given the option to complete the DUI Alternative to Jail Program.
Appellant filed a post sentence-motion which was denied by operation of law
on March 21, 2023. This appeal followed.
Appellant raises one issue on appeal: “Whether the Trial Court abused
its discretion in denying Mr. Baskin’s post-sentence motion for a new trial
where the verdicts of guilty for DUI were against the weight of the evidence.”
Appellant’s Br. at 4.
When considering challenges to the weight of the evidence, we apply
the following precepts: “The weight of the evidence is exclusively for the finder
of fact, who is free to believe all, none[,] or some of the evidence and to
determine the credibility of the witnesses.” Commonwealth v. Talbert, 129
A.3d 536, 545 (Pa. Super. 2015) (quotation marks and quotation omitted).
Resolving contradictory testimony and questions of credibility are matters for
the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.
Super. 2000). It is well-settled that we cannot substitute our judgment for
that of the trier of fact. Talbert, supra.Moreover, appellate review of a weight claim is a review of the trial
court's exercise of discretion in denying the weight challenge raised in the
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1 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(c).
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post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id.
Because the trial judge has 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 against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower 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.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Id. (quotation marks and quotation omitted).
Here, Appellant argues that Ms. Worthy, who was standing with him
outside the vehicle at the time the police arrived, was the designated driver
of the car on the night of the accident and was the individual in control of the
vehicle. Appellant’s Br. at 14. Appellant argues that the police never personally
saw him behind the steering wheel. Id. at 14. He further claims that Ms.
Worthy credibly testified that the reason she never told the police at the scene
that she was in fact the driver was because the scene was chaotic, she was
on the phone, and she thought Appellant was being arrested for his behavior,
not for DUI. N.T. at 37-39. Since the police never discussed with her why
Appellant was being arrested, she never had the opportunity to claim
responsibility for driving when the accident occurred. Id.
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The trial court rejected Appellant's weight of the evidence claim, and we
find no abuse of discretion in this regard. We note the trial court was free to
determine the weight of the fact that Appellant admitted at the scene that he
was the driver of the vehicle. Appellant argues that due to his level of
intoxication that night, nothing he said should be taken at face value.
Appellant’s Br. at 14. To the extent that Appellant suggests that his own
intoxication renders his statements incredible, it is illogical to allow an
individual to rely on his level of intoxication to relieve him of the consequences
of his words and actions; indeed, the trial court could just as likely have
believed that Appellant’s level of intoxication made it more likely that the truth
would be uttered given the absence of the opportunity for calculated
misstatement. Regardless, it is not the function of this Court to substitute its
credibility determinations over that of the trial court. Talbert, supra.As factfinder, the trial court was free to give more weight to the officer’s
testimony that Appellant admitted to driving and had a slight odor of alcohol,
glassy, watery eyes, slurred speech, and a slow response time, because it
found the testimony credible. The finding of credibility is supported by the trial
court’s statement that the officer testified he detected only a slight odor of
alcohol rather than trying to “pile it on and say like he had a really strong odor
of alcohol.” N.T. at 43.
The trial court was also free to give no weight to the testimony of Ms.
Worthy because it found her testimony to lack credibility. The court’s finding
of a lack of credibility is supported by the fact that Ms. Worthy testified that
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she believed Appellant was being arrested for behaving belligerently with the
police, N.T. at 37-38, but the arresting officer never testified that Appellant
was belligerent or uncooperative. The trial court found this “odd” and that it
“def[ied] . . . logic” since it would have constituted additional evidence of
impairment. N.T. at 42. The trial court was also free to infer that Ms. Worthy
did know Appellant was being arrested for DUI, despite her testimony that she
was unaware, because Ms. Worthy observed the entire encounter between
Appellant and the police, was present for Appellant’s performance of the field
sobriety tests, and watched Appellant be arrested. N.T. at 44. Still, she never
notified the officer that she had been driving.
To the extent Appellant requests that we re-weigh the evidence and
assess the credibility of the witnesses presented at trial, we emphasize that it
is a task that is beyond our scope of review. See Commonwealth v. Collins,
70 A.3d 1245, 1251 (Pa. Super. 2013) (stating that “[a]n appellate court
cannot substitute its judgment for that of the finder of fact”). Accordingly, the
trial court’s verdict was not against the weight of the evidence.
Judgment affirmed.
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12/22/2023
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