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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL ASHMUNN
Appellant No. 813 WDA 2014
Appeal from the Judgment of Sentence April 8, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000716-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 24, 2014
Appellant Paul Ashmunn appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas following his jury trial
convictions for driving under the influence (“DUI”), general impairment, DUI,
highest rate of alcohol, and the summary offenses of careless driving, failing
to keep a vehicle to the right side of the road, and failing to yield. 1 We
affirm.
The trial court sets forth the relevant facts and procedural history of
this appeal as follows:
On November 16, 2012 at approximately 8:30 p.m., Mr.
Guy Medved, an employee of Mayer Brothers Construction
Company, was towing a truck east on Main Street, in
Springfield Township, Erie County, Pennsylvania. This is a
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1
75 Pa.C.S. §§ 3802(a)(1), 3802(c), 3714(a), 3301(a), 3302, respectively.
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two[-]lane highway. Near the Federated Church[,] he
encountered [Appellant] traveling in the opposite
direction[,] who passed him and then struck Mr. Medved’s
trailer.[2] He spoke to [Appellant] and attempted to
exchange insurance information. [Appellant] did not
provide any. Mr. Medved began to call 911 when
[Appellant’s] friend (and a passenger in [Appellant’s]
vehicle) said that was not necessary. After [Appellant] left
[in his vehicle], Mr. Medved called 911 and later met with
Trooper Samuel Laureto, who responded within minutes
after the accident. As Medved wanted [Appellant’s]
insurance information, he searched for [Appellant’s]
vehicle. He found it approximately 20-30 minutes after
the accident. Trooper Laureto did likewise. [Appellant’s]
van was found approximately 100 yards from the scene in
the vicinity of a house.
As Trooper Laureto approached the house, [Appellant]
opened the door, holding a plate of food. He stumbled on
the stairs. Laureto asked him if he was the driver of the
vehicle and [Appellant] said no. When asked if he had a
license[,] he said yes. (This is not what he had told Mr.
Medved earlier.) Trooper Laureto asked [Appellant] for his
name and background information. He noticed that he had
glassy eyes and there was an odor of alcoholic beverage
emanating from him. [Appellant] was swaying and
slurring his words. Laureto concluded that [Appellant] was
heavily intoxicated and asked him if he had been drinking.
[Appellant] said that he had consumed four (4) beers.
[Appellant] told Laureto that he couldn’t prove that he
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2
At trial, Mr. Medved described the accident as follows:
There was a guy driving, and he drove over into my lane
making a turn…. He was over in my lane coming at me.
I’m slowing down, and he drives past me and then
hits…the side of my trailer…. But the corner of his van was
almost in the grass, just right on the edge of the grass….
He went back over to his lane, missed my truck, and then
run back into my trailer….
N.T., 7/7/14, at 17, 27.
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([Appellant]) was driving. Laureto ran [Appellant’s]
background information and found that [Appellant’s]
license had been suspended. This conversation with
[Appellant] took place at approximately 8:50 p.m.,
approximately 29 minutes after the 911 call had been
made by Mr. Medved. Throughout the interview,
[Appellant] was confrontational, cursed and called the
trooper a "dick". He also told the trooper he did not do
field sobriety tests. At that time, Laureto placed
[Appellant] under arrest and transported him to the Girard
Barracks of the Pennsylvania State Police. There he
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Mirandized[ ] [Appellant] and questioned him concerning
his drinking. [Appellant] responded by cursing. He
continued to berate Laureto and other troopers present.
The officers had a long and difficult time with him.
[Appellant] was administered his O'Connell[4] warnings
which he indicated he understood. He agreed to chemical
testing which was conducted by way of a blood draw at
2155 hours or 9:55 p.m. His blood alcohol level was
.198%.
[Appellant] presented the testimony of his friend Jason
DeSantis[.] He testified that [Appellant] was on the way
to his house for drinks and arrived at approximately 7:15
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3
Miranda v. Arizona, 384 U.S. 436, 16 L.Ed 2d 694 (U.S.1966).
4
O’Connell warnings concern a refusal to submit to chemical testing by a
motorist suspected of DUI. Our Supreme Court has discussed O’Connell
warnings as follows:
[A] proper O'Connell warning must include the following
information: first, a motorist must be informed that his
driving privileges will be suspended for one year if he
refuses chemical testing; second, the motorist must be
informed that his Miranda rights do not apply to chemical
testing. This is by no means a mantra that the police must
recite like automatons. The subject matter, however,
should be covered in warnings issued by the police.
Com. Dep't of Transp., Bureau of Driver Licensing v. Ingram, 648 A.2d
285, 294-95 (Pa.1994).
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p.m. He said [Appellant] was upset regarding the accident
and began drinking whiskey and beer. The two shared the
alcohol and both he and [Appellant] had a ‘buzz going.’
DeSantis stated that the state police arrived about 8:45
p.m., at which time [Appellant] stated he would take care
of it.
On April 9, 2014, [Appellant] was sentenced to a period of
incarceration of 13 to 26 months at Count 2. Count 1
merged. Fines and costs were assessed on the summary
offenses. This sentence was to be served concurrently and
overlapping with another sentence [Appellant] was serving
at the time. On April 15, 2014, he filed a post sentence
motion which was denied by this [c]ourt the same day.
Trial Court Opinion, filed July 1, 2014, at 1-3.
On May 13, 2014, Appellant timely filed a notice of appeal. The next
day, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After the court
granted Appellant’s motion to extend the time to file his Rule 1925(b)
statement to July 3, 2014, Appellant timely complied with the court’s order
on June 30, 2014.
Appellant raises the following issue for our review:
[WHETHER] THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE IN THAT NO EVIDENCE WAS PRESENTED
THAT APPELLANT WAS INTOXICATED AT THE TIME HE
WAS DRIVING[?]
Appellant’s Brief at 2.
Appellant only raises one question for our review, that the verdict was
against the weight of the evidence. His argument, however, challenges both
the sufficiency of the evidence and the weight of the evidence. To address
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his weight claim, we must first address his implicit challenge to the
sufficiency of the evidence.
Appellant argues that “no evidence” was presented that Appellant was
intoxicated while he was driving. Appellant contends the officers failed to
provide information regarding the calibration of scientific equipment used for
testing the alcohol in his blood and failed to show Appellant was driving the
vehicle while the alcohol was in his system. Appellant concludes the
Commonwealth did not present enough evidence to prove that he was
legally intoxicated while driving. We disagree.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
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. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, 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.
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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
The DUI offenses for which Appellant was charged are defined by
statute 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.
* * *
(c) Highest rate of alcohol.--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 alcohol concentration in the
individual's blood or breath is 0.16% or higher within two
hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle.
75 Pa.C.S. § 3802.
Instantly, the jury was presented with enough evidence to find all of
the elements of these DUI offenses beyond a reasonable doubt. Specifically,
the Commonwealth presented Appellant’s blood test results, the testimony
of Mr. Medved, who was involved in an automobile accident with Appellant,
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and the testimony of Trooper Laureto, who arrested Appellant soon after the
accident. Mr. Medved testified that Appellant drove into his lane of traffic
and struck Mr. Medved’s vehicle. Further, Mr. Medved testified that either
Appellant or his passenger asked Mr. Medved not to call 911, and that
Appellant wrote down a phone number in an illegible manner. After
Appellant left the accident scene, Mr. Medved followed him to obtain
insurance information and called 911 to report the accident. Trooper
Laureto then encountered Appellant at his home and found him to be
stumbling and belligerent only twenty-nine minutes after the accident.
Trooper Laureto also testified that Appellant’s speech was slurred and his
eyes appeared to be glassy. Appellant’s blood test that indicated a BAC of
.198% was conducted at 9:55 p.m., which was less than one and a half
hours after he was seen driving the vehicle at 8:30 p.m. Further, both
parties stipulated to the results of Appellant’s chemical tests, and Appellant
did not raise any challenge to the timing or the equipment used for testing
at trial.5
Mr. Medved testified that he did not notice Appellant smelling of
alcohol or exhibiting other physical manifestations of intoxication at the
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5
Because Appellant did not challenge the timing or the equipment used for
testing at trial, this argument is waived. See Commonwealth v. Ballard,
80 A.3d 380, 400 (Pa.2013) cert. denied, 134 S.Ct. 2842 (2014) (holding
appellant’s arguments were waived because appellant failed to object at
trial). See also Pa.R.A.P. 302.
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accident scene. Mr. Medved also testified, however, that Appellant was
driving erratically, struck his automobile, and wrote down an illegible phone
number. This testimony, together with Trooper Laureto’s testimony about
Appellant’s obvious intoxication twenty-nine minutes after the accident and
Appellant’s blood test results, were circumstantial evidence that Appellant
was intoxicated while he was driving a vehicle. The jury was free to believe
this evidence, and it obviously chose to do so. Thus, Appellant’s implicit
challenge to the sufficiency of the evidence fails. See Hansley, supra.
We now address Appellant’s contention that the jury’s verdict was
contrary to the weight of the evidence. Appellant argues the jury should
have believed Appellant’s friend, who testified that Appellant only drank
alcohol while visiting him after the accident. Appellant claims the jury’s
decision to credit the circumstantial evidence of Appellant’s intoxication while
driving, instead of the direct evidence of his friend, was shocking. We
disagree.
We review challenges to the weight of the evidence as follows:
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 fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one's sense of justice.
Commonwealth v. Small, 741 A.2d 666, 672–73
(Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42
(U.S.2000)]. Moreover, where the trial court has ruled on
the weight claim below, an appellate court’s role is not to
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consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate
review is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal
denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted).
Accordingly, “[o]ne 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. Clay, 64 A.3d 1049,
1055 (Pa.2013). A trial judge should not grant a new trial due to “a mere
conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Id. Instead, the trial court must examine
whether “‘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.’” Id. Only where the jury verdict “is so contrary to the
evidence as to shock one's sense of justice” should a trial court afford a
defendant a new trial. Id. A weight of the evidence claim concedes that the
Commonwealth introduced sufficient evidence. Commonwealth v.
Charlton, 902 A.2d 554, 561 (Pa.Super.2006), appeal denied, 911 A.2d 933
(Pa.2006).
Here, the jury had the opportunity to assess the credibility of the
witnesses and consider all the evidence presented. As previously
mentioned, the Commonwealth provided sufficient evidence for the jury to
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find all elements of Appellant’s crimes beyond a reasonable doubt. The
verdict was not so contrary to the evidence as to shock one’s sense of
justice. Therefore, the trial court properly exercised its discretion in denying
Appellant’s challenge to the weight of the evidence. See Devine, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
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