J-A32039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW P. BIROS
Appellant No. 145 WDA 2015
Appeal from the Judgment of Sentence entered December 18, 2014
In the Court of Common Pleas of Westmoreland County
Criminal Division at No: CP-65-SA-0000225-2014
BEFORE: SHOGAN, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J. FILED MAY 20, 2016
Appellant, Andrew P. Biros, appeals from the judgment of sentence
entered in the Court of Common Pleas of Westmoreland County on
December 18, 20141 following his conviction of the summary offense of
public drunkenness.2 Upon review, we affirm.
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1
As the caption reflects, this appeal is from the judgment of sentence
entered on December 18, 2014, and not—as Appellant incorrectly suggests—
from the trial court’s January 7, 2015 order denying his post-sentence
motion.
2
18 Pa.C.S.A. § 5505.
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On April 27, 2014, Appellant was a patron at The Rialto Café (“Rialto”),
a bar in the City of Greensburg.3 According to Rialto employee Justin Payton
(Payton), who testified first for the Commonwealth, Appellant, along with his
girlfriend Andrea Hogue and one other male individual, was in the patio area
of the Rialto at approximately 2:00 a.m., the closing time for the bar. N.T.
Summary Appeal Trial, 12/18/14, at 9. Payton worked as security and as a
barback for the Rialto for two years. Id. at 5. At approximately 2:10 a.m.,
Payton asked Appellant and his friends to leave the bar because it had
closed. Id. at 10. One of the three responded they were waiting for
Appellant’s sister and were not going to leave. Id. at 11. Appellant, who
appeared drunk to Payton, stated he was “not leaving her here for you guy
[sic] to rape.” Id. at 12. Payton then grabbed Appellant’s friend who was
giving him problems and started dragging him out of the bar. Id. at 13. As
he attempted to remove the man standing with Appellant, Appellant grabbed
Payton from behind, ripping Payton’s shirt in the process. Id. at 14.
Payton then turned his attention to Appellant to remove him from the bar.
Id. Appellant fought back the entire time Payton was trying to remove him.
Id. at 15. Payton saw Appellant consume alcohol earlier in the evening and
that “he reeked of alcohol, and he had a complete attitude.” Id. at 16.
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3
Unless otherwise specified, these facts come from the transcript of the
summary appeal trial held on December 18, 2014. N.T. Summary Appeal
Trial, 12/18/14, 1-91.
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Based upon his experience with other intoxicated individuals, Payton
believed Appellant was under the influence of alcohol. Id. at 16-17. When
Payton reached the exit, Rialto employee Scott Riddle approached him to
help take Appellant to the sidewalk. Id. at 17. At that point, Payton went
back inside to retrieve the other man. Id. When he brought the other man
outside, Appellant “was screaming at everybody, saying I’m going to sue
you all. This is bullshit.” Id. Appellant’s girlfriend told Payton she had lost
her glasses, so Payton went with her to look for her glasses on the patio.
Id. While back in the bar, Payton could still hear Appellant yelling and
screaming outside. Id. at 21. Appellant then ran back into the bar. Id.
Payton dragged Appellant out of the bar a second time to the sidewalk. Id.
There were a few bartenders and a few other people on the sidewalk at that
time. Id. at 19. Within a few minutes of removing the Appellant a second
time, police arrived. Id. It was Payton’s opinion Appellant was still under
the influence of alcohol at the time. Id. at 22.
Scott Riddle (“Riddle”) also testified. At the time, he was employed at
the Rialto as a doorman/security for about two and a half years. Id. at 33.
He was notified of a disturbance on the deck by a bartender or a patron and
went to the deck to see what was happening. Id. at 34-35. At that point,
Payton already had been in an altercation with Appellant and other
individuals. Id. at 36. Riddle testified,
[Appellant] was just acting like any other drunk individual that
was irate. He was going off the handle yelling we are going to
sue you, blah-blah-blah. I said to him, you need to be quiet and
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shut up because if you don’t, the police are going to come. And
at that point in time it was, like, they were already there at that
point.
Id. at 38. Based on his observations, Riddle was of the opinion that
Appellant was under the influence of alcohol. When asked how alcohol was
affecting Appellant, Riddle testified, “I mean, he wasn’t blackout drunk, but
he was getting there.” Id. at 39. When police arrived, Appellant continued
to exhibit the same behavior he engaged in before police arrived at the bar.
Id. at 41. At some point in time during the evening, Riddle was informed,
possibly by Payton, that Appellant no longer was to be served alcohol. Id.
at 42.
Officer Shawn Denning, a six-and-a-half year veteran with the City of
Greensburg Police Department, also testified. Id. at 51. When Officer
Denning arrived on the scene, it was “fairly chaotic” and Appellant was
“screaming, yelling, pointing at the bouncers.” Id. at 52. Appellant was
very loud and patrons were lingering outside of the bar, focusing on
Appellant. Id. at 54. When he initially tried to have a conversation with
Appellant, he could smell the odor of alcohol on Appellant’s person and
breath. Id. Although he could understand what Appellant was saying, he
noticed that Appellant was slurring his speech. Id. Appellant was visibly
upset and continued to yell and scream during the attempted conversation.
Id. at 55. Based upon his experience and observations, Officer Denning was
of the opinion Appellant was under the influence of alcohol, id. at 56, such
that he “would definitely not feel safe to let [Appellant] walk away from that
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scene.” Id. On cross-examination, Officer Denning testified that when he
first arrived, he observed only a minor laceration with a small amount of
blood on Appellant’s nose. Id. at 58.
Appellant presented the testimony of his girlfriend, Andrea Hogue. Ms.
Hogue believed that Appellant consumed only two beers, and was confident
that no one in their party was denied alcohol by the bartender. Id. at 68-
69. She testified that after 2:00 a.m., they were told it was time to leave by
someone who was trying to usher them out the door. She responded she
was looking for her glasses. Id. at 69-70. She then saw Payton come over
and grab Appellant, throw him against the patio fence, and punch him in the
face. Id. She did not observe Appellant provoke Payton in any way such as
jumping on his back. Id. She however, was not able to observe everything
because she was not wearing her glasses. Id. at 72. In her opinion,
Appellant was not intoxicated. Id. After police arrived, she observed
Appellant with a bloody nose and a scratched-up neck. Id. at 73. Ms.
Hogue testified that Payton’s shirt was ripped because she was trying to pull
him off Appellant. Id.
Appellant testified on his own behalf. Appellant testified he had not
consumed any alcohol before arriving at the Rialto and thinks he had about
two beers while there. Id. at 85. He did not recall slurring his speech, but
stated that he does sometimes because he mumbles a lot. Id. He and his
friend were standing outside waiting for Ms. Hogue and another female to
exit the bar. Id. at 86. He saw his friend “getting pushed around” by Riddle
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who then started pushing Appellant. Id. Suddenly, Appellant was grabbed
by the neck and punched in the face three times but was never escorted out
of the bar. Id. He made it out of the bar on his own and went down the
street to the area where Officer Denning actually arrested him. Id. He was
trying to get to his car but was so concussed that he was walking the wrong
way. Id. He never raised his voice and did not say a word to Officer
Denning until he was taken to the patrol car. Id. at 87. He further denied
screaming in the street, being escorted from the bar twice, or that Officer
Denning tried to have a calm conversation with him. Id. at 87-88.
Appellant testified that he was immediately handcuffed upon Officer
Denning’s arrival. Id. at 89.
At the conclusion of the bench trial, Appellant was found guilty of
public drunkenness and fined $500 plus costs. Judgment of sentence was
entered on December 18, 2014. Appellant filed a post-sentence motion,
which was denied by order of January 7, 2015. Appellant timely filed an
appeal and complied with the court’s order to file a 1925(b) statement. The
trial court filed a 1925(a) opinion.
On appeal, Appellant raises four issues:
1. Whether the trial court had sufficient evidence, as a matter of
law, to find [Appellant] guilty of being manifestly under the
influence of alcohol under Section 5505 of the Pennsylvania
Crimes Code, when the evidence viewed in a light most
favorable to the Commonwealth showed only that [Appellant]
(1) smelled of alcohol, (2) had been forcibly removed from a
bar, (3) was observed to be loud outside the bar and (4) was
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observed to have slightly slurred speech but otherwise
articulate?
2. Under the Sixth and Fourteenth Amendments to the United
States Constitution, did the trial court below infringe upon
[Appellant’s] right to Assistance of Counsel, and thus, commit
reversible error, when the judge denied defense counsel the
opportunity to deliver closing argument?
3. Whether the factual findings of the trial court constitute an
error of law or abuse of discretion when the judge’s rulings
and conduct at trial convey prejudice and bias against
[Appellant]. Specifically, where the trial court only
considered [Appellant’s] reactions following a physical
altercation with one of his accusers and where the trial court
refused to consider the actions of the accuser as an alternate
cause for [Appellant’s] loud behavior and where the trial court
improperly overruled hearsay and relevance objections to
admit highly prejudicial and unverified statements [sic].
4. Whether the trial court committed an abuse of discretion
when it found the verdict was not against the manifest weight
of the evidence [sic].
Appellant’s Brief at 5-6.
In his first issue, Appellant contends the evidence presented at trial
was insufficient to prove, beyond a reasonable doubt, that Appellant was
guilty of the summary offense of public drunkenness. Appellant’s Brief at
16.
When we review a claim regarding sufficiency of the evidence, we
must determine:
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the factfinder to conclude that the
Commonwealth established all of the elements of the offense
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beyond a reasonable doubt. Additionally, when examining
sufficiency issues, we bear in mind that: the Commonwealth’s
burden may be sustained by means of wholly circumstantial
evidence; the entire trial record is evaluated and all evidence
received against the defendant considered; and the trier of fact
is free to believe all, part, or none of the evidence when
evaluating witness credibility.
Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007).
An accused is guilty of public drunkenness “if he appears in any public
place manifestly under the influence of alcohol . . . to the degree that he
may endanger himself or other persons or property, or annoy persons in his
vicinity.” 18 Pa.C.S.A. § 5505. Instantly, it is undisputed that Appellant was
in a public place. The only issue to be decided is whether the evidence was
sufficient to support a finding Appellant was “manifestly under the influence
of alcohol” to the degree required under Section 5505.
Upon review, we have no trouble concluding that the trial court did not
err in finding that the evidence was sufficient to support a conviction for
public drunkenness. Three individuals, Mr. Payton, Mr. Riddle, and Officer
Denning, all testified Appellant was under the influence of alcohol. In
addition to Appellant’s belligerent behavior, odor of alcohol, and slurred
speech, Appellant was involved in a physical altercation, was forcibly
removed from the Rialto, and continued to yell over Officer Denning’s
requests to calm down. Despite Appellant’s claim, whether Appellant
showed signs of intoxication inside the Rialto prior to closing or was denied
alcohol by the bartender is of no moment. While he was in the bar and
outside, there were numerous other people in Appellant’s vicinity and the
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record supports the conclusion that Appellant might “endanger himself or
other persons or property, or annoy persons in his vicinity.” 18 Pa.C.S.A. §
5505. Indeed, Appellant had already sustained injuries during a physical
confrontation prior to Officer Denning’s arrival. He was disruptive enough
that “the patrons outside lingering around were all focused on him and what
was going on.” N.T. Summary Appeal Trial, 12/18/14, at 54. Officer
Denning testified that he “would definitely not feel safe to let [Appellant]
walk away from the scene.” Id. at 56. Our review of the record indicates
that the evidence was indeed sufficient to support the trial court’s finding
that Appellant was manifestly under the influence of alcohol to a degree he
may endanger himself or other persons or property, or annoy persons in his
vicinity.
We find Appellant’s almost exclusive reliance on Commonwealth v.
Meyer, 431 A.2d 287 (Pa. Super. 1981), to be misplaced. Appellant argues
that Meyer established “that the element of being ‘manifestly under the
influence of alcohol . . . [was] designed to require some aberrant behavior’”
and “that the offense of Public Drunkenness is ‘carefully drawn so as not to
punish all forms of drunkenness.’” Appellant’s Brief at 17 (quoting Meyer,
431 A.2d at 291-92). Appellant claims that he was belligerent only after he
was in a physical altercation with Payton and that none of the testimony
shows that he exhibited signs of intoxication inside the Rialto prior to
closing, except the inadmissible hearsay indicating Appellant was denied
alcohol by the bartender. Appellant’s Brief at 29. Appellant argues that
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Meyer demonstrates that Appellant’s slightly slurred speech and odor of
alcohol alone are not sufficient to prove him guilty of public drunkenness.
We find the following from Meyer sufficient to demonstrate why that
case is distinguishable from the instant matter.
Other than testimony to the effect that he was staggering a bit
and that his breath smelled of alcohol, there is nothing in the
record to support the Commonwealth’s contention that he was
“manifestly under the influence of alcohol.” It must be
remembered that for the Commonwealth’s argument to succeed,
it must be shown that appellant was intoxicated to the requisite
degree while he was outside the [V.F.W.], in the so-called
“public place.” Therefore, it must be shown that while appellant
was outside the [V.F.W.], he was intoxicated to such a degree
that he might endanger himself or others or property, or
annoy persons in his vicinity.
It appears from the record that the only persons outside
the [V.F.W.] at that point in time were the two officers, and
there is no testimony indicating that they felt appellant might
harm them or himself, especially since, as soon as they arrived
outside, the officers put appellant in a squad car. Again it is our
opinion that the statute was designed to protect the public from
“manifestly drunk” persons who voluntarily go to public places
where they are likely to harm or annoy the people likely to be
found there. Since the only persons in appellant’s vicinity were
the two officers who insisted that appellant accompany them
outdoors, we hold that this element of the offense was not
established here beyond a reasonable doubt.
Meyer, 431 A.2d at 291 (emphasis added).
In Meyer, the defendant was found not to be intoxicated to the degree
required by Section 5505 because there was no evidence the defendant was
a danger to himself or likely to harm or annoy anyone in the vicinity. While
the defendant in Meyer may have been intoxicated, he was not guilty of
public drunkenness, since there were no other persons in his vicinity, other
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than police, who felt he was no threat to himself or the police. Defendant
immediately was placed in a squad car where he was in no position to harm
or annoy other people. The facts in Meyer stand in stark contrast to those
here, where the evidence was such that Appellant was intoxicated, was
verbally abusive, engaged in physical confrontations, and did so while in the
company of other patrons, his friends, police, bar personnel, and other
members of the public gathered who were observing his aberrant conduct.
Accordingly, viewing the evidence in a light most favorable to the
Commonwealth as the verdict winner, we find no merit to Appellant’s
sufficiency claim.
In his second issue, Appellant contends the trial court violated his right
to assistance of counsel in violation of the Sixth and Fourteenth
Amendments by refusing to let his counsel present a closing argument.
Appellant did not raise this issue in his Rule 1925(b) statement, but does so
for the first time in his brief. Accordingly, the issue is waived. See
Pa.R.A.P. 1925(b)(4)(vii).
In his third issue, Appellant argues the trial court evidenced bias and
prejudice against him because it only considered Appellant’s reactions
following a physical altercation with one of his accusers, refused to consider
the actions of the accuser as an alternate cause for Appellant’s loud
behavior, and improperly overruled hearsay and relevance objections highly
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prejudicial and unverified statements.4 The trial court, sitting as the fact-
finder, was obliged to hear and consider all evidence and to weigh and make
credibility determinations. As long as the trial court’s findings are supported
by record evidence, this Court is not free to substitute its judgment for that
of the trial court. A trial court sitting as factfinder does not exhibit bias or
prejudice simply because it chooses not to believe the evidence proffered by
a non-prevailing party.
[S]imply because a judge rules against a defendant does not
establish any bias on the part of the judge against that
defendant. If the appellate court determines that the party
alleging judicial bias received a fair trial, then the allegation of
judicial bias is not borne out.
Commonwealth v. Travaglia, 661 A.2d 352, 367 (Pa. 1995), cert. denied,
516 U.S. 1121 (1996)(citation omitted). As in Travaglia, Appellant here
asserts nothing more than his disagreement with the trial court’s adverse
rulings in support of his claim of prejudice and bias. Without more,
Appellant’s claim fails.
Finally, Appellant argues the trial court abused its discretion by
concluding the verdict was not against the weight of the evidence.
Appellant’s weight claim is premised upon challenges to credibility
determinations made by the trial court. Appellant claims that it is shocking
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4
While Appellant raises these evidentiary issues to support his claim of bias
and prejudice by the trial court, Appellant does not raise these evidentiary
issues in and of themselves as bases for a new trial.
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to one’s sense of justice that the trial court based its verdict on the
credibility of Peyton and found that Appellant’s nose was lacerated in the
course of a physical altercation with Peyton, who testified he never struck or
punched Appellant. Appellant argues it is shocking that Peyton and Riddle
were deemed credible when their testimony was conflicting and self-serving.
He also assails the credibility of Officer Denning who testified that in
circumstances like this case, he always looks for someone to drive an
individual home. Here, however, Appellant was released to his girlfriend
three hours after being arrested.
This Court’s standard of review when addressing a weight claim is well
settled.
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 lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to 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. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations
omitted). Moreover,
A verdict is not contrary to the weight of the evidence because of
a conflict in testimony or because the reviewing court on the
same facts might have arrived at a different conclusion than the
fact[-]finder. Rather, a new trial is warranted only when the
jury's verdict is so contrary to the evidence that it shocks one's
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sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail.
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014), citing
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003).
The trial court heard and viewed the evidence and resolved material
inconsistencies against the Appellant. The trial court found Payton, Riddle,
and Officer Denning to be credible witnesses, as all three testified similarly
regarding Appellant’s behavior at the Rialto. Trial Court Opinion, 3/12/15,
at 1. The trial court believed Payton’s testimony that he did not punch
Appellant in the face and rejected the accounts offered by Appellant and Ms.
Hogue, who claimed Payton’s attack on Appellant was unprovoked and that
Appellant was never extremely loud and hostile. Based on the above facts
and our review of the record, we discern no abuse of discretion in the trial
court’s ruling on the weight of evidence claim.5 Appellant does no more than
argue perceived inconsistencies in the evidence and urges this Court to
reweigh the evidence presented before the trial court, something we cannot
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5
Appellant claims the trial court did not cite the correct standard for a
weight of the evidence claim. In fact, it is hard to tell the basis for the trial
court’s sufficiency and weight determination in that the trial court merely
concluded that “[u]nder the applicable standard of review . . . it is
submitted that there was sufficient competent evidence to support the
Defendant’s conviction and that no [e]rror of [l]aw occurred.” Trial Court
Opinion, 3/12/15 at 2. Despite this lack of analysis, we are not impeded
from reviewing Appellant’s weight claim, as the entire record of these
proceedings is available for review. See Commonwealth v. Widmer, 744
A.2d 745, 752-53 (Pa. 2000) (In the interests of justice, weight claim may
be reviewed even though a court applies the wrong standard of review.).
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do. Appellant has not argued—much less demonstrated—that the trial court
committed a palpable abuse of discretion by rejecting his request for a new
trial based upon the weight of the evidence. As such, Appellant is not
entitled to relief on this claim.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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