Com. v. Delong, J.

J-S50043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY RYAN DELONG
Appellant No. 2222 MDA 2015
Appeal from the Judgment of Sentence October 19, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000820-2015
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 15, 2016
Appellant, Jeremy Ryan DeLong, appeals from the October 19, 2015
judgment of sentence of three days to six months’ incarceration, imposed by
the trial court after it convicted him of driving under the influence of alcohol
(DUI), driving in excess of the maximum speed limit, and failing to drive on
the right side of the roadway.1 After careful review, we affirm.
The trial court detailed the relevant facts and procedural posture of
this case as follows.
On January 2, 2015, at a little after midnight,
Officer Jeffrey Futchko, with the Western Berks
Regional police, was conducting a routine patrol of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a), 3362(a), and 3301(a), respectively.
J-S50043-16
traffic at the intersection of West Penn Avenue and
Spruce Street in the Borough of Robesonia, in Berks
County, Pennsylvania. As he was sitting in his patrol
car, he heard a vehicle approaching his location at a
very high rate of speed. He then observed a brown
Mercury Sable pass his zone of influence for his
speed timing device, which registered 58 miles per
hour on his RB-3 device. This occurred in a 35 mile
per hour speed zone. The officer pulled out,
activated his headlights and followed this vehicle; he
activated his emergency lights because he had to
accelerate up to 60 miles per hour to catch up to the
vehicle. He observed the driver make erratic
movements, straddle the center line and make an
abrupt swerve to the right before braking. The
officer started to tap the siren, but initially received
no response. Eventually the driver responded to the
siren. The trooper identified Appellant as the person
who was driving this vehicle. Appellant popped the
car door open, looked back and then abruptly shut it
as the officer approached. Upon approaching the
driver’s side window, Officer Futchko detected an
overpowering smell of an alcoholic beverage
emanating from Appellant[’s] breath. Appellant’s
eyes were extremely bloodshot and slightly glassy in
appearance. Appellant had difficulty giving his
information and became agitated. He produced a
driver’s license that should have been returned to
PennDOT. The officer called for back-up. A bottle of
Rolling Rock beer was seen lying open on the
passenger side floor, partially concealed by a red
cloth. The officer asked if Appellant would mind
giving him the bottle, but Appellant said he had no
right to come into his vehicle. Then the officer asked
if Appellant would take a PBT; Appellant refused any
tests and became belligerent, hurling profanities at
the officer. The officer began to open the car door
and Appellant started yelling and then got out of the
car. His gait was unsteady as he moved to the rear
of the vehicle. The officer managed to complete
three field sobriety tests and determined from these
tests that Appellant was incapable of safely driving a
motor vehicle. At this point, the officer attempted to
place Appellant under arrest for [DUI] and he
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resisted. Once Appellant was secured and the bottle
was seized, the officer transported him to St. Joe’s
[H]ospital for a blood draw. Again, Appellant was
extremely belligerent and verbally abusive.
Appellant was read his implied consent from the DL-
26 form; he became quite vulgar in his responses to
the officer. The officer deemed this a refusal to
submit to chemical testing.
[Appellant] was charged … with one count of
[DUI], [], one count of Maximum Speed Limits, [],
one count of Duplicate and Substitute Driver’s
Licenses and Learner’s Permits, [], one count of
Restriction on Alcoholic Beverages, [], and one count
of Driving on Right Side of Roadway, []. On October
6, 2015, after a bench trial, Appellant was found
guilty of four of the counts, including [DUI], but
found not guilty of Restriction on Alcoholic
Beverages. The sentencing hearing was held on
October 19, 2015; the parties stipulated that
Appellant was to be found not guilty of count 3,
Duplicate and Substitute Driver’s Licenses and
Lerner’s Permits. Appellant was sentenced to serve
not less than 3 days nor more than six months, with
credit for 40 days in the Berks County Jail System.
Appellant filed Post Sentence motions which were
denied on November 20, 2015. On December 18,
2015, Appellant filed a Notice of Appeal to the
Superior Court. [Appellant and the trial court have
complied with Pennsylvania Rule of Appellate
Procedure 1925.]
Trial Court Opinion, 2/22/16, at 1-3 (citations to record and statutes
omitted).
On appeal, Appellant presents four issues for our review.
1. Whether the evidence presented is insufficient to
sustain a finding of guilt for the crime of [DUI],
against [Appellant], because the Commonwealth
failed to prove beyond a reasonable doubt that
[Appellant] imbibed a sufficient amount of alcohol
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prior to driving, the motor vehicle, rendering him
incapable of safely operating said motor vehicle?
2. Whether the trial court abused its discretion in
finding [Appellant] guilty of [DUI] where the
verdict is contrary to the weight of the evidence
presented because the Commonwealth failed to
demonstrate [Appellant] was incapable of safely
driving, operating, or being in actual physical
control of the movement of the vehicle?
3. Whether the evidence presented is insufficient to
sustain a finding of guilt for the crime of Driving
Right Side of the Roadway, against [Appellant],
because the Commonwealth failed to prove
beyond a reasonable doubt that [Appellant] did
not drive his vehicle on the right side of the
roadway?
4. Whether the trial court abused its discretion in
finding [Appellant] guilty of Driving Right Side of
Roadway when the verdict is contrary to the
weight of the evidence presented because the
Commonwealth failed to demonstrate [Appellant]
did not drive his vehicle on the right side of the
roadway?
Appellant’s Brief at 7-8.
We first address Appellant’s two sufficiency claims relative to his
convictions of DUI and driving on the right side of the roadway. “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.” Commonwealth
v. O’Brien, 939 A.2d 912, 913 (Pa. Super. 2007) (citation omitted). “Any
doubts concerning an appellant’s guilt [are] to be resolved by the trier of
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fact unless the evidence was so weak and inconclusive that no probability of
fact could be drawn therefrom.” Commonwealth v. West, 937 A.2d 516,
523 (Pa. Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008). Moreover,
“[t]he Commonwealth may sustain its burden of proving every element of
the crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super.
2007) (citations omitted).
Instantly, Appellant was convicted of DUI as follows.
§ 3802. Driving under influence of alcohol or
controlled substance
(a) General impairment.--
(1) 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 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).
In addition, Appellant was convicted of failing to drive on the right side
of the roadway in violation of 75 Pa.C.S.A. § 3301(a), which provides that
“[u]pon all roadways of sufficient width, a vehicle shall be driven upon the
right half of the roadway.”
Our review of the notes of testimony from Appellant’s bench trial
reveals the testimony of two witnesses: Western Berks Regional Police
Officer Jeffrey Futchko for the Commonwealth and Appellant for the defense.
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Consonant with the trial court’s factual findings, Officer Futchko testified to
being on “routine patrol” on January 2, 2015 when he observed Appellant’s
vehicle drive by at a “very high rate of speed.” N.T., 10/6/15, at 4-5.
Officer Futchko stated Appellant drove “very close to the center line,” then
“straddl[ed] the middle of the center line … until it passed approximately
two, three blocks down … and … again made an abrupt swerve to the right
and began braking at that point.” Id. at 5-6.
Officer Futchko activated his emergency lights and siren, and when
Appellant stopped his vehicle, Officer Futchko detected “an overpowering
smell of an alcoholic beverage.” Id. at 7. Appellant’s eyes appeared
“extremely bloodshot and slightly glassy.” Id. There was a Rolling Rock
beer bottle on the passenger-side floor of Appellant’s vehicle. Id. at 9.
Appellant became belligerent. Id. at 10-11. Officer Futchko administered
three different field sobriety tests to Appellant, after which Officer Futchko
concluded that Appellant was incapable of safe driving, and placed him
under arrest. Id. at 12-13. Appellant continued to act belligerently. Id. at
13-15. After Officer Futchko read Appellant the DL-26 implied consent form,
Appellant refused to consent to a blood test. Id. at 16.
In his testimony, Appellant testified to drinking “some alcoholic
beverages” on the night before he encountered Officer Futchko, but added
that he was “a little exhausted” because he “didn’t get much sleep.” Id. at
21-22. Appellant specifically denied driving under the influence of alcohol on
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January 2, 2015. Id. at 24. He also denied refusing to take the blood test,
although he conceded he was “very disgruntled” during his encounter with
Officer Futchko. Id. at 23-24.
Viewing the above evidence in the light most favorable to the
Commonwealth as the verdict winner, we conclude there was sufficient
evidence to establish that Appellant operated his vehicle after consuming
enough alcohol to render him incapable of safe driving, and that he failed to
drive on the right side of the roadway.
We next address Appellant’s weight claims relative to his DUI and
failing to drive on the right side of the roadway convictions. An allegation
that a “verdict was against the weight of the evidence is addressed to the
discretion of the trial court.” Commonwealth v. Diggs, 949 A.2d 873, 879
(Pa. 2008), cert. denied, Diggs v. Pennsylvania, 556 U.S. 1106 (2009).
Where the trial court has ruled on a weight claim, an appellate court’s role is
not to consider the underlying question of whether the verdict is against the
weight of the evidence. Rather, “[our] review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.”
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert. denied,
Tharp v. Pennsylvania, 541 U.S. 1045 (2004). “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.
An appellate court cannot substitute its judgment for that of the finder of
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fact.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)
(citations omitted), cert. denied, Champney v. Pennsylvania, 542 U.S.
939 (2004).
Before addressing the merits of Appellant’s weight claim, we first
determine whether he has properly preserved the issue for appellate review.
Pennsylvania Rule of Criminal Procedure 607 provides that a claim that the
verdict was against the weight of the evidence “shall be raised with the trial
judge in a motion for a new trial: (1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). “The 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.” Commonwealth v.
McCall, 911 A.2d 992, 997 (Pa. Super. 2006). Upon review, we conclude
that Appellant properly preserved his weight of the evidence claims by
raising them in his October 28, 2015 motion for post-sentence relief. We
thus turn to the merits of the claims.
It is well established that this Court will not reverse a trial court’s
credibility determination absent an abuse of discretion. In a bench trial, as
in a jury trial, “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. Zingarelli, 839 A.2d
1064, 1069 (Pa. Super. 2003), appeal denied, 856 A.2d 834 (Pa. 2004).
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Additionally, “the evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts regarding a
defendant’s guilt 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.” Commonwealth v. Emler, 903 A.2d 1273, 1276 (Pa.
Super. 2006).
Instantly, the trial court found the testimony of Officer Futchko, as
related above, to be credible. Conversely, the trial court did not credit
Appellant’s version of events. The trial court stated it “found Appellant’s
testimony to be not only not credible, but quite incredible.” Trial Court
Opinion, 2/22/16 at 6 (emphasis in original). The trial court reasoned as
follows.
Appellant claimed to be either overtired, a little sick,
hung over, or under the weather. He said he did not
refuse the blood test. Appellant explained that he
was so vulgar and disrespectful to the officer
because he was frustrated and “disgruntled.” He
claimed no one asked him to sign any forms and he
asserted that he never even made it to the hospital.
It is clear from the record that, either Appellant did
not remember these details because he was
intoxicated, or that he flat out lied to this [trial
c]ourt. The verdicts do not shock our sense of
justice.
Id. at 6-7.
Upon review of the certified record, and recognizing that we are
precluded from reweighing the evidence and substituting our judgment for
that of the fact-finder, we discern no abuse of discretion by the trial court.
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Champney, supra at 408. The trial court acted within its discretion in
concluding that the verdict was not “so contrary to the evidence as to shock
one’s sense of justice.” Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa.
Super. 2007) (citation omitted), appeal denied, 928 A.2d 1289 (Pa. 2007).
Based on the foregoing, we find no merit to Appellant’s sufficiency and
weight claims. We thus affirm the October 19, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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