Com. v. Nardizzi, J.

J-S49035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH NARDIZZI :
:
Appellant : No. 565 WDA 2020
Appeal from the Judgment of Sentence Entered November 27, 2019
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0000526-2018
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 07, 2020
Appellant Joseph Nardizzi appeals the judgment of sentence entered by
the Court of Common Pleas of Westmoreland County after the trial court
convicted Appellant of Driving Under the Influence of Alcohol (DUI: General
Impairment - Incapable of Safe Driving).1 Appellant claims the trial court
erred in denying his motion for acquittal and challenges the sufficiency and
weight of the evidence supporting his conviction. We affirm.
The trial court aptly summarized the factual background of this case as
follows:
The charges in the case arose out of an investigation
following a motor vehicle accident involving [Appellant,] Joseph
Nardizzi on December 23, 2017 in Greensburg, Westmoreland
County. The evidence presented at the non-jury trial established
that on the date of the incident, in the early evening hours,
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1).
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[Appellant] rear-ended a vehicle driven by Mark Middleton
(hereinafter “Middleton”), causing damage to Middleton’s vehicle.
Middleton testified that after his vehicle was hit, he exited his
vehicle, walked to the rear to assess the damages, and exchanged
information with [Appellant]. According to Middleton, [Appellant]
informed him that he wanted to leave because there was a State
Police presence in the area, and asked if he could provide
Middleton with his phone number and call him the following day
with his information.
Middleton testified that based on his observations and
training and experience, as stated in further detail below, he
believed [Appellant] “to be sort of not with it, kind of maybe under
the influence maybe.” In support of his belief, he stated that
[Appellant] was apprehensive in providing his information, he
wanted to leave the area, he was very pensive, and he was
guttural in his tone. Middleton stated that he has been a volunteer
firefighter for 30-some years, he deals with traffic accidents and
vehicle collisions, he has his State Police Certification for Accident
Reconstruction [], and he currently is state police certified to
handle state police equipment.
***
After eventually providing some information, Middleton
indicated that [Appellant] and him parted ways, and he
subsequently noticed that the insurance information that
[Appellant] provided to him was expired. As such, Middleton
testified that he stopped at the Greensburg Police Station and
spoke with Patrolman Justin Scalzo regarding the insurance
information. On cross-examination, Middleton confirmed that at
the time of the accident, there were no adverse road conditions,
and it was just starting to get dark outside. Middleton testified
that following the traffic accident, he did not observe [Appellant]
having any difficulty pulling into the S & T parking lot, and at no
time during the interaction did he observe [Appellant] with a
staggered gait, glassy bloodshot eyes, or a smell of the odor of
alcohol; however, he indicated that he did not “really look at
[Appellant] that well” and [Appellant] never really left the area of
his vehicle for Middleton to see him.
Patrolman Justin Scalzo, of the City of Greensburg Police
Department, testified that on the date of the incident at 5:55 p.m.,
he was dispatched to respond to the police station to take a report
of a vehicle accident reported by Middleton. Patrolman Scalzo
indicated that after speaking to Middleton, he radioed the officers
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who he was working with that evening to respond to [Appellant’s]
residence, which was provided on [Appellant’s] vehicle
registration, in order to check on [Appellant’s] condition and
determine if he had a valid insurance card. According to
Patrolman Scalzo, Patrolman Elliott Fejes indicated that they made
contact with [Appellant] and advised Patrolman Scalzo to report
to the scene as Patrolman Fejes believed [Appellant] was under
the influence.
Patrolman Chase Mollomo of the City of Greensburg Police
Department testified that he was dispatched to [Appellant’s]
residence on Cherry Street with Patrolman Fejes, where he
observed [Appellant’s] vehicle with light front-end damage, and
[Appellant] admitted to hitting Middleton’s vehicle. Additionally,
after encountering [Appellant], Patrolman Mollomo indicated that
he smelled an alcoholic beverage emanating from [Appellant’s]
person, and [Appellant] acknowledged he had been drinking.
Patrolman Mollomo stated that he remained on the scene with
[Appellant] until Patrolman Scalzo arrived on scene.
Patrolman Scalzo indicated that he immediately responded
to the area and arrived within a couple of minutes. Patrolman
Scalzo testified that upon approaching [Appellant], he observed a
strong odor of an alcoholic beverage coming from his person and
observed [Appellant] with an unsteady gait, slurred speech, and
glassy eyes. At this point, Patrolman Scalzo stated that he
determined that in his belief, [Appellant] was driving under the
influence of an alcoholic beverage. According to Patrolman
Scalzo, [Appellant] admitted to drinking “a little,” but he indicated
that “I am not DUI.” Additionally, it was relayed that [Appellant]
refused to perform any Standardized Field Sobriety tests or submit
to a breath test.
After the Commonwealth rested, Defense Counsel moved
for judgment of acquittal arguing that Patrolman Scalzo’s
testimony that [Appellant] was under the influence of alcohol to a
degree that rendered him incapable of safe driving at the time of
the traffic accident had not been proven beyond a reasonable
doubt as the timing of the accident could not be established.
Following the denial of the Motion for Judgment of Acquittal,
[Appellant] elected to testify at trial. [Appellant] testified that on
the date of the incident, he went to Jaffre’s restaurant in
Greensburg at 4:17 p.m. to purchase gift cards. He then indicated
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that at 4:22 p.m., he ordered a pizza from Sunset Café in
Greensburg, which was to be ready for pickup at 5:02 p.m., and
while he waited to leave to pick up his pizza, he ordered a drink
and some food at Jaffree’s. After leaving Jaffree’s, and in route
to Sunset Café, [Appellant] testified that he encountered
Middleton and was involved in a traffic accident between 5:12
p.m. and 5:14 p.m. [Appellant] indicated that he was not hesitant
to provide Middleton with his information; however, he was
running late and had a friend coming over, and he just wanted to
get out of there. [Appellant] testified that Sunset Café is located
approximately one mile from the scene of the accident, and he
arrived at 5:32 p.m. [Appellant] then indicated that he left the
restaurant and arrived at his residence at 5:36 p.m. where he
made a “tall Jack and water,” ate a couple pieces of pizza, and
then made another “strong[,] tall Jack and water” before
Greensburg Police arrived at 6:08 p.m.
On cross-examination, [Appellant] testified that while at
Jaffre’s, he consumed two Captain and Cokes and then admitted
to striking Middleton’s car leaving Jaffre’s.
Trial Court Opinion (T.C.O.), 6/18/20, at 1-5 (citations and footnotes omitted).
In connection with his arrest, Appellant was charged with DUI (General
Impairment – Incapable of Safe Driving) and DUI (Refusal to Submit to
Chemical Testing). After a bench trial, the trial court convicted Appellant of
DUI (General Impairment – Incapable of Safe Driving). On November 27,
2019, the trial court sentenced Appellant to forty-eight (48) hours to six (6)
months’ incarceration, suspended his driver’s license for one year, and
ordered him to submit to a CRN evaluation and pay costs and fines.
On November 27, 2019, Appellant filed a timely post-sentence motion,
which the trial court deemed to be denied by operation of law on April 23,
2020. On May 12, 2020, Appellant filed a timely appeal and subsequently
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complied with the trial court’s direction to file a Concise Statement of Errors
on Appeal pursuant to Pa.R.A.P. 1925(b).
Before we reach the merits of this case, we must determine whether the
appeal is properly before us. Pennsylvania Rule of Criminal Procedure 720
provides, in pertinent part, that after filing a timely post-sentence motion, the
defendant shall file a notice of appeal “within 30 days of the entry of the order
denying the motion [or] within 30 days of the entry of the order denying the
motion by operation of law in cases in which the judge fails to decide the
motion.” Pa.R.Crim.P. 720(A)(2)(a)-(b). The trial court is required to decide
the post-sentence motion within 120 days of its filing. Pa.R.Crim.P.
720(B)(3)(a). If the trial court fails to decide the motion within the 120-day
time period, the motion will be deemed denied by operation of law. Id. Rule
720 requires the clerk of courts to enter an order denying the motion by
operation of law on behalf of the court. Pa.R.Crim.P. 720(B)(3)(c).
In this case, the trial court indicated that it had inadvertently failed to
rule on Appellant’s post-sentence motion within the 120 day time limit set
forth in Rule 720. The docket shows that the clerk of courts also failed to
enter an order deeming the motion denied by operation of law at the
expiration of the applicable 120 day time period. Under such circumstances,
the failure of the clerk of courts to enter the requisite order notifying the
appellant that the post-sentence motion had been denied by operation of law
constitutes an administrative breakdown of court processes and the appeal is
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considered timely filed. Commonwealth v. Perry, 820 A.2d 734, 735
(Pa.Super. 2003).
Appellant raises the following issues on appeal:
I. Did the Trial Court in denying [Appellant’s] Motion for
Judgment of Acquittal following the close of the
Commonwealth’s case?
II. Did the Trial Court err in determining that sufficient
evidence was presented by the Commonwealth to find
[Appellant] guilty of Driving Under the Influence of Alcohol:
General Impairment – Incapable of Safe Driving?
III. Did the Trial Court err in finding that the verdict of guilty at
Count One was supported by the Weight of the Evidence?
Appellant’s Brief, at 4 (reordered for ease of review).
In the first two claims, Appellant argues the trial court erred in denying
his motion for judgment of acquittal and challenges the sufficiency of the
evidence. In reviewing Appellant’s claims, we are guided by the following
principles:
“A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and is
granted only in cases in which the Commonwealth has failed to
carry its burden regarding that charge.” Commonwealth v.
Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014). Therefore, in usual
circumstances, we apply the following standard of review to
sufficiency claims which arise in the context of a motion for
judgment of acquittal:
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
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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.
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751
(2000) (internal citations omitted) (emphasis added).
Commonwealth v. Stahl, 175 A.3d 301, 303–304 (Pa.Super. 2017).
In applying this standard, Pennsylvania courts acknowledge that
“the Commonwealth may sustain its burden by means of wholly
circumstantial evidence.” [Commonwealth v.] Montalvo, [598
Pa. 263, 274,] 956 A.2d [926, 932 (2008)] (citing
Commonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873, 877
(2008)). The facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence,
as any doubts regarding a defendant's guilt may be resolved by
the fact finder unless the evidence is so inconclusive that, as a
matter of law, no probability of guilt may be drawn.
Commonwealth v. Devine, 26 A.3d 1139, 1145 (Pa.Super.
2011) (quoting Commonwealth v. Jones, 874 A.2d 108, 120–
121 (Pa.Super. 2005)). The fact finder is free to believe all, part,
or none of the evidence. Id.Commonwealth v. Sexton, 222 A.3d 405, 416 (Pa.Super. 2019).
As noted above, Appellant was convicted of DUI (General Impairment –
Incapable of Safe Driving) under Section 3802(a)(1) of the Vehicle Code,
which provides that “[a]n 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). This Court has further provided that:
The Commonwealth must establish that the defendant (1) was
operating a motor vehicle (2) after imbibing a sufficient amount
of alcohol such that he was rendered incapable of safely operating
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the motor vehicle. Commonwealth v. Segida, 985 A.2d 871,
876 (Pa. 2009) (citing Commonwealth v. Kerry, 906 A.2d 1237,
1241 (Pa.Super. 2006)). To prove a person is incapable of driving
safely, the Commonwealth must prove
that alcohol has substantially impaired the normal mental
and physical faculties required to operate the vehicle safely;
substantial impairment means a diminution or enfeeblement
in the ability to exercise judgment, to deliberate or to react
prudently to changing circumstances and conditions. The
meaning of substantial impairment is not limited to some
extreme condition of disability. Section 3802(a)(1), like its
predecessor, is a general provision and provides no specific
restraint upon the Commonwealth in the manner in which it
may prove that an accused operated a vehicle under the
influence of alcohol to a degree which rendered him
incapable of safe driving.
Kerry, 906 A.2d at 1241 (citations, quotation marks, and brackets
omitted).
Commonwealth v. Clemons, ---A.3d---, 2020 PA Super 261 (Pa.Super. Oct.
28, 2020).
Our courts have also emphasized that “[e]xpert testimony is not
necessary in a DUI-alcohol case under 75 Pa.C.S.A. § 3801(a)(1); the
Commonwealth may present any form of proof, including the defendant's
behavior, the nature of the accident itself, and any other relevant evidence
(which may or may not include blood alcohol tests).” Commonwealth. v.
DiPanfilo, 993 A.2d 1262, 1267 (Pa.Super. 2010) (citing Commonwealth
v. Segida, 604 Pa. 103, 985 A.2d 871, 879 (2009)).
Moreover, the charge under Section 3801(a)(1) is an “at the time of
driving” offense, which requires the prosecution to prove the accused 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 driving doing
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so due to the consumption of alcohol.” Segida, 604 Pa. at 116, 985 A.2d at
879. The Supreme Court explained further:
By the plain language of subsection 3802(a)(1), 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. Without the inference of some rational and
reasonable temporal link between drinking and driving, then a
motorist would violate the statute by driving at any time—even
days or weeks—after having imbibed sufficient alcohol to be
rendered incapable of safely driving.
Id. at 114, 985 A.2d at 878. However, the Commonwealth is not required to
prove that the defendant did not drink any alcohol after he stopped driving.
Id.Specifically, Appellant claims the Commonwealth failed to present
sufficient evidence to show that he was operating a vehicle while under the
influence of alcohol such to the extent that he could not operate the vehicle
safely. Appellant emphasizes that Middleton, the only witness that observed
Appellant at the scene of the accident, did not observe any signs that Appellant
was impaired from intoxication, such as smelling of the odor of alcohol,
slurring his speech, or erratic driving.
As the arresting officers were not present at the scene, Appellant argues
that their observations did not support the trial court’s finding that Appellant
was impaired while operating his motor vehicle. While the officers did observe
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Appellant exhibited signs of intoxication, Appellant points out that he drank
two alcoholic beverages after returning home from the accident scene. As
such, Appellant argues that the Commonwealth failed to prove he was
intoxicated while operating his vehicle.
However, after viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we find that the Commonwealth satisfied
its burden to prove that Appellant was incapable of safely driving due to the
influence of alcohol when he crashed into Middleton’s car. Appellant admitted
that he had been drinking before he lost control of his vehicle and rear-ended
Middleton’s car, which was already stopped motionless at a red light.
Middleton testified that the accident occurred in the early evening when there
were no adverse weather conditions and it was just starting to get dark. See
Segida, 604 Pa. at 118, 985 A.2d at 880 (finding the appellee’s one-vehicle
accident itself constituted evidence that the appellee drove when he was
incapable of doing so safely).
Middleton testified that he observed that Appellant was evasive and
indicated that he wanted to leave the accident scene quickly without
exchanging insurance information with Middleton due to the “state police
presence,” which points to Appellant’s consciousness of guilt. Notes of
Testimony (N.T.), 10/31/18, at 7. Middleton described Appellant “to be sort
of not with it, kind of maybe under the influence maybe.” Id. While Middleton
could not indicate whether Appellant was intoxicated, Middleton did notice
Appellant’s behavior was peculiar.
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When officers arrived at Appellant’s home within an hour of the accident,
the officers noticed that Appellant had a strong smell of alcohol, slurred
speech, glassy eyes, and an unsteady gait. Appellant admitted that he had
hit Middleton’s vehicle but refused to perform any Standardized Field Sobriety
testing or a breath test, further suggesting Appellant’s consciousness of guilt.2
Despite Appellant’s claim to the contrary, the Commonwealth did not
have the burden of proving that Appellant did not drink after he stopped
driving. Instead, we agree with the trial court’s conclusion that the
Commonwealth presented sufficient evidence to show that at the time of the
accident, Appellant was incapable of driving safely due to the influence of
alcohol.
Appellant also claims that his conviction was not supported by the
weight of the evidence. When considering this challenge, we apply the
following standard of review:
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
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2 Our Supreme Court upheld the constitutionality of 75 Pa.C.S.A § 1547(e)
which allows the prosecution to admit evidence of an arrestee’s refusal to
submit to chemical testing without a search warrant as proof of consciousness
of guilt at the arrestee’s trial on a DUI charge. Commonwealth v. Bell, 211
A.3d 761, 776 (Pa. 2019).
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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.
[Commonwealth v. Widmer],560 Pa. [308,] 321–22, 744 A.2d
[745,] 753 [(2000)] (emphasis added).
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In describing
the limits of a trial court's discretion, we have explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Widmer,560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184–85
(1993)).
Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055 (2013) (some
internal citations omitted). In order to grant a new trial on the grounds that
the verdict is against the weight of the evidence, “the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Commonwealth v. Akhmedov, 216 A.3d 307, 326 (Pa.Super. 2019)
(en banc).
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Appellant simply reiterates the aforementioned claims and argues that
his version of the events in question is more credible. While Appellant
essentially asks this Court to reweigh the evidence and overturn the trial
court’s credibility determinations, we will not substitute our judgment for that
of the factfinder, whose findings are supported by the record.
Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa.Super. 2006)
(emphasizing that the trial court, acting as factfinder and “passing upon the
credibility of witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence”). Accordingly, we conclude that the
trial court did not abuse its discretion in denying Appellant’s challenge to the
weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2020
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