Com. v. Giang, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWIN GIANG :
:
Appellant : No. 830 MDA 2018
Appeal from the Judgment of Sentence April 20, 2018
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-SA-0000002-2018
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 21, 2019
Appellant, Edwin Giang, appeals from the judgment of sentence entered
on April 20, 2018, following a bench trial. We affirm.
The trial court summarized the procedural history of the case as follows:
As a result of two traffic stops on September 24, 2017,
[Appellant] was cited for driving a commercial vehicle without a
commercial driver’s license (four counts), unlawful activities (six
counts), registration and certificate of title required, and
identification markers and license or road tax registration card
required. Following a trial at which he did not appear, he was
found guilty of all charges and fined by a magisterial district judge
on December 5, 2017. From the convictions, [Appellant] filed
appeals to this court on January 4, 2018, and a de novo trial at
which he appeared and was represented by counsel was held on
April 20, 2018.
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Trial Court Opinion, 8/1/18, at 1–2 (footnotes omitted). Following the de novo
trial, the trial court found Appellant guilty of all charges.1 N.T., 4/20/18, at
52. The trial court imposed sentence on each count of the costs of prosecution
and an aggregate fine of $8,072. Appellant filed a timely notice of appeal to
this Court. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following single issue on appeal, which is the same
issue raised in his Pa.R.A.P. 1925(b) statement:
1. The verdict of guilt as to all summary traffic violations was
based upon insufficient evidence and the verdict of the [c]ourt
should be set aside as to each and every charge.
Appellant’s Brief at 6.
Because a determination of evidentiary sufficiency presents a question
of law, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing the
sufficiency of the evidence, we must determine whether the evidence admitted
at trial and all reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient to prove
every element of the offense beyond a reasonable doubt. Commonwealth
v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017). “[T]he facts and
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1 Appellant was found guilty of four counts of Requirement for Commercial
Driver’s License, 75 Pa.C.S. § 1606, six counts of Unlawful Activities, 75
Pa.C.S. § 4107; one count of Registration and Certificate of Title Required, 75
Pa.C.S. § 1301(a); and one count of Identification Markers and License or
Road Tax Registration Card Required, 75 Pa.C.S. § 2102.
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circumstances established by the Commonwealth need not preclude every
possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521,
525–526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson-Dewar,
829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-
finder to determine the weight to be accorded to each witness’s testimony and
to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107
A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.
Super. 2016). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).
We have stated 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.” Commonwealth v.
Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (emphasis added). Failure to
identify what specific elements the Commonwealth failed to prove at trial in a
Rule 1925(b) statement renders an appellant’s sufficiency-of-the-evidence
claim waived for appellate review. Id.Here, Appellant generically states that all findings of guilt in this case
were based on insufficient evidence. Appellant’s Brief at 14. Appellant does
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not identify any element of any conviction that was not proven beyond a
reasonable doubt. Appellant’s Brief at 14–16. Consequently, Appellant’s non-
specific claim challenging the sufficiency of the evidence, which fails to state
any elements of any crimes allegedly not proven by the Commonwealth, is
waived. Commonwealth v. Williams, 959 A.2d 1252, 1257–1258 (Pa.
Super. 2008).
Furthermore, we note that Appellant actually is challenging the
eyewitness testimony of Pennsylvania State Trooper Michael Penrose,
suggesting the identification was inconsistent because the trooper “could not
remember whether Appellant was wearing glasses . . . .” Appellant’s Brief at
14. Thus, he suggests the inconsistency “made the evidence insufficient to
sustain the verdict beyond a reasonable doubt.” Id. at 14.
Specifically, regarding the issue of identity, our Supreme Court has
stated:
Proof beyond a reasonable doubt of the identity of the accused as
the person who committed the crime is essential to a conviction.
The evidence of identification, however, needn’t be positive and
certain in order to convict, although any indefiniteness and
uncertainty in the identification testimony goes to its weight. [2]
Direct evidence of identity is, of course, not necessary and a
defendant may be convicted solely on circumstantial evidence.
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (internal
citations and quotation marks omitted).
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2 Appellant did not challenge the weight of the evidence.
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The trial court explained the testimony and evidence in this case as
follows:
The testimony of the affiant, Pennsylvania State Trooper
Michael P[en]rose,[3] on behalf of the Commonwealth may be
summarized as follows. On Sunday, September 24, 2017, Trooper
Penrose was a member of the state police motor carrier inspection
detail and at 5:35 a.m. clocked a 2016 Ford Truck, towing an open
2016 Kaufman car trailer with motor vehicles on it, traveling north
near mile marker 52 on Interstate Route 81 in Cumberland County
at a rate of 69 miles an hour in a 55-mile-per-hour zone. A traffic
stop resulted in the identification of [Appellant] as the sole
occupant and driver.
The trooper detected numerous Vehicle Code violations
associated with the driver and apparatus. [Appellant] had not
been issued a commercial driver’s license, as required for
operation of vehicles of the combined weight (32,000 pounds)
involved. He was driving a commercial vehicle unequipped with a
valid operator’s medical certificate, a current federal vehicle
inspection certificate, a fire extinguisher, and an operable
registration light, and he was in violation of out-of-service criteria
due to the absence of a logbook. Finally, he was operating a
vehicle subject to apportioned registration in Pennsylvania without
such registration and without road/fuel tax registration and
identification decals.22
22 The trooper also noted other violations in the form
of the presence of a radar detector and a detachment
of the emergency breakaway cable.
In an exercise of leniency, Trooper P[en]rose issued only
two citations to [Appellant], one for operating a commercial
vehicle without a commercial driver’s license and one for unlawful
activity in the form of driving a commercial vehicle unequipped
with a valid operator’s medical certificate. He also issued eight
warnings, declared [Appellant] out-of-service generally for not
having a commercial driver’s license and particularly for a 10-
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3 Throughout the trial court’s Pa.R.A.P. 1925(a) opinion, Trooper Penrose’s
surname is misspelled.
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hour-period for lack of a duty status record, and, at 6:15 a.m.,
left [Appellant] parked at a truck stop off Exit 52 of the highway.
At 7:18 a.m., at mile marker 53 on Route 81 Trooper
P[en]rose observed [Appellant] driving the same truck and trailer,
with the same license plate, northbound, and executed a traffic
stop at the next exit ramp. In recounting the circumstances of his
observation of [Appellant] as [Appellant] passed by him on the
highway, the trooper described the weather as bright and sunny,
the period of observation as five or six seconds, the sole occupant
of the front seat as [Appellant], and the line-of-sight between
them as at an even level. According to the trooper’s testimony,
A. . . . He looked directly at me and had the deer
in the headlights look like he wasn’t expecting me to
be sitting there. I can positively identify him as
the same individual that I interacted with an
hour previous.
****
A. He had the same clothes on as he had on that day.
He hadn’t changed clothing.
****
A. It was the same truck, same lettering, same decals.
On the stop the registration plate on the trailer was
identical to the one that I previously had.
****
A. I’ve been employed with the Pennsylvania State
Police since January of 2007. If I have any inclination
that what I’m doing is not correct, I don’t follow
through with it.... [Appellant] was driving that
truck when he proceeded past me.
At this second stop, before making contact with the driver,
Trooper P[en]rose found his attention diverted by a work truck
with two men in it that pulled up behind his patrol car. He left his
car to determine their purpose, with the following result:
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There were two gentlemen in a work truck who
advised that they were going to take [Appellant’s]
trailer for him, that they had met at the truck stop;
however, they didn’t really know each other.
During my brief interaction with them, again for
officer safety issues, finding out who’s parked behind
me, as I turned to look forward again, [Appellant] had
fled the scene and left in that truck and trailer.
I immediately broke contact with the two
individuals that I was with and traveled attempting to
find [Appellant], which I was unsuccessful.
A search by additional state police failed to locate driver, truck or
trailer.
Trooper P[en]rose thereafter filed ten additional traffic
citations against [Appellant]. Thus, in addition to the initial two
charges arising out of his driving prior to the first stop, [Appellant]
was cited for again driving without a commercial driver’s license,
for doing so in violation of an out-of-service declaration based
upon the absence of a commercial driver’s license, for doing so in
violation of an out-of-service declaration based upon the absence
of a record of duty hours, for unlawful activities related to the
aforementioned absence of a medical certificate, federal vehicle
inspection certificate, fire extinguisher, operable registration light,
and logbook, for operating without a Pennsylvania apportioned
registration, and for operating without a road/fuel tax registration
and identification decals.
The testimony of [Appellant] on his own behalf may be
summarized as follows. A Maine resident, [Appellant] obtained a
temp[orary] job with a Massachusetts company to drive its truck
and trailer to Greencastle, Pennsylvania, pick up some vehicles,
and haul them to Massachusetts. A commercial driver’s license
was not a prerequisite for the employment, which was “kind of
why he took the job,” and he did not realize he needed one.
[Appellant] found himself grateful to the trooper for his
initial leniency, including the issuance of warnings in lieu of
citations. He understood that he had been declared out-of-service
due to the lack of a commercial driver’s license, and he
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immediately called his employer from the truck stop to advise of
the situation. The following transpired:
Q What did your employer say?
A They said they would try to call someone else locally
in the area and get them over to me.
Q Did they do that?
A They did.
Q Who did they tell you was coming?
A A gentleman named Jose Montario.
Q And where was Jose coming from?
A I’m not too sure. He actually got Ubered or like a
taxi and Uber. I think it was Uber.
Q So Jose came to the truck stop[?]
A Correct.
Mr. Montario arrived within about an hour of [Appellant’s]
call to his employer. This gentleman was light-skinned, with
“dread hair, kind of braided back,” had only a backpack, led
[Appellant] to assume that he was probably from the Boston area,
and said that he had a commercial driver’s license. Within about
five minutes of his arrival, Mr. Montario was driving them to
Massachusetts; during the course of the journey, they made only
two brief stops, one in Connecticut and one in Massachusetts, and
were never pulled over. [Appellant] was paid by his employer for
the job and then fired.
[Appellant] was unsuccessful in trying to arrange through
the employer for Mr. Montario to be present at the trial. His
assessment of the situation involving the “second stop” was that
the trooper must have stopped another vehicle that resembled the
one he had been operating, and that he was the victim of a
misidentification.
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Trial Court Opinion, 8/1/18, at 2–7 (footnote references to the notes of
testimony omitted) (emphases added).
Appellant’s sole basis for his claim of misidentification is that Trooper
Penrose could not remember whether Appellant was wearing glasses.4
Appellant’s Brief at 14; N.T., 4/20/18, at 12. The trial court explained that at
the de novo trial, Appellant conceded that he had been the driver during the
first traffic stop but testified “neither he nor his vehicle had been present at
the second stop.” Trial Court Opinion, 8/1/18, at 2 (citing N.T., 4/20/18, at
36–38, 42–43). The trial court admitted that because of Appellant’s claim, “a
resolution of the balance of the case depended upon a credibility
determination as between” Trooper Penrose and Appellant. Trial Court
Opinion, 8/1/18, at 2. Acknowledging that the testimony was in conflict, the
trial court underscored that a “mere conflict in the testimony of witnesses does
not render the evidence insufficient because ‘it is within the province of the
factfinder to determine the weight to be given to the testimony and to believe
all, part, or none of the evidence.’” Id. at 8 (quoting Commonwealth v.
Rabold, 920 A.2d 857, 859 (Pa. Super. 2007)). Upon cross-examination,
when asked if he was “absolutely sure with the few seconds that you had that
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4 Understandably, the trial court never commented on Appellant’s assertion
that Trooper Penrose could not remember whether Appellant wore glasses
when the trooper stopped him the second time, as Appellant never specified
an allegation of misidentification in his Pa.R.A.P. 1925(b) statement.
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[Appellant] was actually the driver of this vehicle the second time,” Trooper
Penrose stated, “I would bet on my two sons’ lives.” N.T., 4/20/18, at 21.
Therefore, even if Appellant’s sufficiency challenges were not waived,
we would find they lack merit based upon the trial court’s credibility finding,
as follows: “In the present case, a resolution of the question of [Appellant’s]
guilt with respect to the charges he contested depended upon an assessment
of the credibility of the two witnesses who testified at trial. The court in its
capacity as trier-of-fact determined this credibility issue adversely to
[Appellant].” Trial Court Opinion, 8/1/18, at 8. We may not re-weigh the
evidence. Rogal, 120 A.3d at 1001.
Judgment of sentence affirmed.
Judge Kunselman joins the Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2019
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