J-S60030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ODILIE B. CERRITOS
Appellant No. 2244 MDA 2013
Appeal from the Judgment of Sentence entered November 22, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No: CP-14-0000048-2013
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 16, 2015
Appellant, Odilie B. Cerritos, appeals from the judgment of sentence
the Court of Common Pleas of Centre County entered on November 22,
2013. Appellant challenges the sufficiency and the weight of the evidence
supporting Appellant’s conviction for violating 75 Pa.C.S.A. § 3802(a)(1)
(driving under influence of alcohol or controlled substance—general
impairment). Upon review, we affirm.
The trial court summarized the underlying facts and procedural history
as follows:
Corporal Brian Rose with the Ferguson Township Police
Department testified at the [n]on-[j]ury [t]rial. On October 28,
2012, he was going on roving DUI patrol and at about 2:28
a.m., he was on North Atherton Street near the intersection of
Vairo Boulevard when his attention was drawn to a green Jeep
Cherokee. He observed the Jeep stop approximately ten yards
short of the stop line at a red light. Corporal Rose testified that
stopping short of the line is a violation of the [V]ehicle [C]ode,
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although at that time he did not realize as much. He described
stopping ten yards short of the line as behavior that would “get
his attention.” When the light turned green, Corporal Rose’s
vehicle and the Jeep proceeded north[-]bound. The Jeep was in
the left lane and switched lanes to get behind Corporal Rose’s
vehicle and then returned to the left lane after a short amount of
time to pass him. He further stated that switching lanes to get
behind a police cruise[r] and then switching lanes again to pass
a cruiser is out of the ordinary. Corporal Rose ran the
registration and noted the registration was cancelled for
nonpayment of insurance. The Jeep pulled into Denny’s
restaurant and Corporal Rose pulled in behind it. When asked to
produce her license, insurance and registration, [Appellant] had
some trouble locating the items. Corporal Rose detected the
odor of alcohol on [Appellant], her eyes were watery and glassy
and her speech was somewhat slurred[,] which he described as
“mush mouth.” He also noted in his report that her face was
flushed.
....
Corporal Rose administered the field sobriety tests in Denny’s
parking lot. Out of eight clues on the walk and turn test she was
assessed six[,] which was an unsatisfactory performance. She
performed satisfactorily on the one-legged stand. Corporal Rose
determined [Appellant] was incapable of safe driving and she
was placed under arrest. Corporal Rose transported [Appellant]
to the Central Booking Station for a blood test. . . . [A witness
for the Commonwealth] testified that . . . the [Blood Alcohol
Content (BAC)] results related to the samples tested was 0.080
gram per deciliter.
Trial Court Opinion, 3/27/14, at 1-3 (citation to notes of testimony omitted).
Appellant raises the following issues for our review:
I. Was the evidence adduced by the Commonwealth
insufficient to prove beyond a reasonable doubt that on the
night in question, Appellant was rendered incapable of
safely operating a motor vehicle because of alcohol
consumption, specifically did the evidence[,] viewed in a
light most favorable to the Commonwealth as verdict
winner and giving the Commonwealth the benefit of all
reasonable inferences therefrom, establish the charge [of]
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Driving Under the Influence of Alcohol, 75 [Pa.C.S.A.
§ 3802(a)(1)] beyond a reasonable doubt?
II. Was the [v]erdict contrary to the weight of the evidence in
that the evidence preponderated sufficiently against the
verdict so that a serious miscarriage of justice had resulted
with respect to the conviction?
Appellant’s Brief at 6.
In reviewing a claim challenging the sufficiency of the evidence, we
apply the following standard:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010) (internal
quotations and citations omitted).
Appellant argues the Commonwealth failed to provide sufficient
evidence to prove Appellant was substantially impaired for purposes of
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Section 3802(a)(1).1 To this end, Appellant points to evidence in the record
showing she was not substantially impaired to drive safely. Appellant’s Brief
at 14-15. The argument is misplaced, for several reasons.
Appellant’s argument is a challenge to the weight of the evidence, not
to the sufficiency of the evidence. Appellant notes that Officer Rose testified
that Appellant’s “exit of the vehicle was normal, she was steady on her feet,
she stood normally, she walked normally, and she was not disheveled in
appearance.” Appellant’s Brief at 14. Appellant also avers Officer Rose
“claimed” that Appellant “stepped off the line during the [walk and turn]
test, but he could not recall at what step she allegedly stepped off the line
nor could he recall where she allegedly missed heel to toe.” Id. “Ultimately,
Officer Rose begrudgingly admitted that [Appellant] did more things right
the evening of her arrest than she did wrong.” Id. at 15.
Appellant is in essence asking this Court to reweigh the evidence
against the Commonwealth, and make credibility determinations in her
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1
Section 3802, in relevant part, reads:
(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).
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favor. Such a position, however, is untenable in light of the sufficiency of
the evidence standard of review. Under that standard, the evidence must be
assessed in the light most favorable to the Commonwealth, as the verdict
winner, not Appellant. Mollett, 5 A.3d at 313. Furthermore, this Court
does not make credibility determinations and cannot reweigh the evidence.
Id.
Nonetheless, Appellant argues the fact that “Officer Rose followed
[Appellant] for a quarter of mile and at no time was [Appellant]’s driving to
be erratic[,]” as proof she was not substantially impaired to drive.
Appellant’s Brief at 14. The argument is without merit.
Evidence of erratic driving is not a necessary precursor to a
finding of guilt under the relevant statute. The Commonwealth
may prove that a person is incapable of safe driving through the
failure of a field sobriety test. [Commonwealth v. Palmer,
751 A.2d 223 (Pa. Super. 2000)]; see also Commonwealth v.
Smith, 831 A.2d 636 (Pa. Super. 2003).
Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011).
Applying the proper standard of review for a sufficiency claim, we
agree with the trial court’s finding that the evidence was in fact sufficient to
find Appellant guilty of DUI—general impairment. Specifically, the trial court
found:
Corporal Rose reasonably noted concerns that drew his attention
concerning [Appellant]’s driving[,] including stopping thirty feet
before the stop line and switching lanes to pass his cruiser. . . .
Once he encountered [Appellant], he detected the odor of
alcohol and noticed that she had watery and glassy eyes and
slurred speech . . . . He also perceived her face to be flushed.
Although she passed the one-legged stand, she scored 6 of 8
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clues on the walk-and-turn test for an unsatisfactory
performance. Furthermore, she did admit to drinking that
evening. Her BAC result was 0.80.
Trial Court Opinion, 3/27/14, at 5. Thus, we conclude the evidence was
sufficient to support Appellant’s conviction under 75 Pa.C.S.A. § 3802(a)(1).
Next, Appellant argues the guilty verdict was against the weight of the
evidence. In support, Appellant relies on the same reasons advanced for her
sufficiency of the evidence challenge. Appellant’s Brief at 16. Appellant also
argues the “scope of appellate review of an [o]rder denying a new trial on
the basis of the weight of the evidence is identical to the standard
employed by the trial court[.]” Id. (emphasis added).2 Appellant concludes
“the trial court simply accepted the officer’s ultimate opinion that [Appellant]
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2
It appears that Appellant miscomprehends the distinction between our
scope and standard of review. As shown above, Appellant refers to our scope
of review and standard of review interchangeably. Scope of review and
standard of review, however, are two distinct and separate concepts. Our
Supreme Court noted:
“Scope of review” and “standard of review” are often-albeit
erroneously-used interchangeably. The two terms carry distinct
meanings and should not be substituted for one another. “Scope
of review” refers to “the confines within which an appellate court
must conduct its examination.” Coker v. S.M. Flickinger
Company, Inc., [] 625 A.2d 1181, 1186 ([Pa.] 1993). In other
words, it refers to the matters (or “what”) the appellate court is
permitted to examine. In contrast, “standard of review” refers to
the manner in which (or “how”) that examination is conducted.
In Coker we also referred to the standard of review as the
“degree of scrutiny” that is to be applied.
Morrison v. Dept. of Public Welfare, 646 A.2d 565, 570 (Pa. 1994).
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was incapable of safe driving when the facts revealed at trial did not support
the officer’s opinion.” Appellant’s Brief at 16.
Unfortunately, this claim is waived, for several reasons. A claim that a
verdict is against the weight of the evidence must be raised in a motion for a
new trial either (1) orally on the record, before sentencing; (2) in a written-
presentence motion; or (3) in a post-sentence motion. Pa.R.Crim.P. 607(A).
Failure to properly preserve the claim results in waiver, even if the trial court
addresses the weight of the evidence in its opinion. Commonwealth v.
Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (quoting Commonwealth
v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012)). It is axiomatic that a
party cannot raise an issue for the first time on appeal. See Pa.R.A.P.
302(a).
Appellant did not provide any indication on how and when she raised
and preserved her weight of the evidence claim for our review. Accordingly,
her weight of the evidence claim is waived. See Pa.R.A.P. 2117(c),
2119(e); see also Commonwealth v. Williams, 980 A.2d 667, 671 (Pa.
Super. 2009).3 Additionally, “it is not the responsibility of this Court to scour
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3
In Williams, we noted:
Pursuant to the Rules of Appellate Procedure, Appellant must
specify where in the record this issue was preserved. See
Pa.R.A.P. 2117(c) and 2119(e). In his brief, [a]ppellant does
not indicate where the issue was preserved in the trial court, nor
does he even allege that he raised the issue[.] Consequently,
(Footnote Continued Next Page)
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the record to prove that an appellant has raised an issue before the trial
court, thereby preserving it for appellate review.” Commonwealth v.
Baker, 963 A.2d 495, 502 n.6 (Pa. Super. 2008). Nonetheless, upon review
of the record it appears Appellant did not raise this claim in a motion for a
new trial with the trial court as required under Pa.R.Crim.P. 607(A).4
Appellant also does not appreciate the differences between a
sufficiency of the evidence and a weight of the evidence claim, by failing to
articulate any separate argument for her weight of the evidence claim. The
_______________________
(Footnote Continued)
we are constrained to deem this issue waived. See Pa.R.A.P.
302(a) (“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”).
Williams, 980 A.2d at 671.
4
At the close of the Commonwealth’s case, but before the verdict, Appellant
asked the trial court to “dismiss” the charges on sufficiency and weight of
the evidence grounds. N.T. Trial, 9/4/13, at 68. It appears the next time
Appellant challenged the weight of the evidence was in her Rule 1925(b)
statement, which is insufficient for preserving it for appellate review. See
Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009). In Sherwood,
the Supreme Court noted:
Regarding [a]ppellant’s weight of the evidence claim[,] we note
that [a]ppellant did not make a motion raising a weight of the
evidence claim before the trial court as the Pennsylvania Rules of
Criminal Procedure require. See Pa.R.Crim.P. 607(A). The fact
that Appellant included an issue challenging the verdict on
weight of the evidence grounds in his 1925(b) statement and the
trial court addressed [a]ppellant’s weight claim in its Pa.R.A.P
1925(a) opinion did not preserve his weight of the evidence
claim for appellate review in the absence of an earlier motion.
Id. at 494 (footnote omitted).
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two challenges are not the same, and failure to recognize this distinction
also may result in waiver. Commonwealth v. Widmer, 744 A.2d 745,
751-52 (Pa. 2000); Commonwealth v. Birdseye, 637 A.2d 1036, 1039-40
(Pa. Super. 1994) (“Because [appellants] failed to distinguish between their
sufficiency and weight of the evidence claims and presented no argument
regarding the weight of the evidence, we deem their weight of the evidence
issue waived.”).
Appellant finally ignores that the weight of evidence standard applied
by appellate courts is not identical to the standard employed by the trial
court, and failure to address the proper standard may result in a waiver of
the weight of the evidence claim. See Commonwealth v. Johnson, 985
A.2d 915, 926 (Pa. 2009).
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 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.
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[Widmer, 744 A.2d at 753] (emphasis added) [(internal
citations omitted)].
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.
[Id.] (quoting Coker[, 625 A.2d at 1184-85]).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
Here, Appellant did not advance any argument on how the trial court
abused its discretion in not granting a motion for a new trial (a motion she
apparently never made) based upon a weight of the evidence claim.
Appellant merely challenges the trial court’s credibility determinations, which
we cannot reweigh. See Commonwealth v. DeJesus, 860 A.2d 102, 107
(Pa. 2004) (“The weight of the evidence is exclusively for the finder of fact,
which is free to believe all, part, or none of the evidence, and to assess the
credibility of the witnesses. . . . This Court cannot substitute its judgment
for that of the [finder of fact] on issues of credibility.”) (citations omitted).
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“Because Appellant fails to address the standard by which this Court reviews
a weight of the evidence claim and makes no effort to demonstrate an abuse
of discretion by the trial court,” Johnson, 985 A.2d at 926, she is not
entitled to any relief on her weight of the evidence claim.
Judgment of sentence affirmed.
Judge Ott joins the memorandum.
Judge Jenkins concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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