J-S32036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALLEN EUGENE BROWN :
:
Appellant : No. 40 MDA 2018
Appeal from the Judgment of Sentence September 5, 2017
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0000349-2017
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JULY 05, 2018
Appellant, Allen Eugene Brown, appeals from the judgment of sentence
imposed following his bench conviction of driving under the influence of alcohol
(DUI).1 Appellant challenges the weight of the evidence supporting his
conviction. We affirm.
The trial court aptly set forth the factual history of this case as follows:
On September 3, 2016, Appellant was on his way home from
the Middletown VFW where he had three drinks over the course of
several hours. At approximately 9:00 p.m. off duty Dauphin
County Deputy Sheriff Paul Leggore was watching a football game
at his home on Water Street when he heard what he believed to
be a car accident. (See N.T. Trial, 9/05/17, at 4-5). He went
outside and saw a vehicle had hit a parked car. Leggore
approached the vehicle in case he needed to render aid. (See id.
at 5).
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1 75 Pa.C.S.A. § 3802(a)(1) (general impairment).
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* Retired Senior Judge assigned to the Superior Court.
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Leggore testified that he and his neighbor approached the
car together. (See id. at 6). He and his neighbor knocked on the
window several times while Appellant and the passenger ignored
him. (See id. at 7). Appellant then repeatedly put the car in
drive and reverse but could not move the car—which appeared to
have a broken axle. (See id.). Leggore admitted that he is not
a mechanic and would not know if there were any mechanical
issues with the car that may have played a role in the accident.
(See id. at 7, 16).
The passenger exited the vehicle and began walking away
so Leggore followed him. (See id. at 8). Leggore warned the
passenger that he was leaving the scene of an accident, but the
passenger continued to ignore him. (See id. at 9). Leggore
followed the passenger, until he noticed that the driver (Appellant)
had also exited the vehicle. (See id. at 9-10). Leggore also
warned Appellant that he was leaving the scene of an accident.
(See id. at 10). Leggore approached Appellant and extended an
arm towards him when Appellant turned and sw[u]ng with his left
hand in a closed fist at Leggore. (See id.). Leggore grabbed his
hand and the momentum took Appellant to the ground. (See id.
at 10-11).
Appellant asked Leggore to let him up at which point
Leggore identified himself as an off-duty sheriff. (See id. at 11-
12). Leggore refused to let Appellant up. (See id. at 12).
Leggore testified that he could smell the odor of alcoholic
beverage on Appellant when he was holding him down. He also
testified that Appellant’s speech was slurred. (See id.). He
seemed somewhat lethargic and the punch he threw was slow.
(See id. at 12-13). Leggore believed that Appellant was incapable
of safely operating a vehicle. (See id. at 13). Leggore has never
arrested anyone for driving under the influence. (See id. at 18).
Officer James Bennett of the Middletown Borough Police
Department was the first officer on the scene. (See id. at 21-22).
Upon arrival, he observed Deputy Leggore on top of Appellant,
pinning his arms behind his back as [Appellant] lay on the ground.
(See id. at 22). Bennett learned Appellant was under arrest so
he handcuffed him, and noticed some abrasions on him. (See id.
at 22-23). He also noticed an odor of alcohol and that Appellant
was unsteady and stumbling a bit. (See id. at 23). While he was
Mirandizing Appellant, Bennett noticed slurred speech. (See id.).
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Bennett did not administer any standardized field sobriety
tests as there was a crash involved and “we received blood pretty
much automatically due to the crash.[”] (Id.). He also believed
that Appellant was incapable of safe driving. (See id. at 23-24).
Appellant testified on his own behalf. He indicated that he
went to the VFW with friends to play darts and watch football. He
had approximately three beers over the course of seven hours.
(See id. at 33-34). He was safely navigating home from the VFW
through one red light and several stop signs and picking up very
little speed—he guessed five to seven miles per hour. (See id. at
35). Suddenly, he heard a loud noise and his car veered right and
hit a parked car. (See id. at 36). He was surprised and at first
he just sat there; then he tried to reverse so as to be able to
inspect any damage. (See id.).
Appellant denied having a passenger in the car and said that
the man Deputy Leggore said was a passenger was a random
person who opened the door to ask if he was ok. As he was, the
man went about his business. (See id. at 36-37). Appellant
exited his vehicle to assess the damage when a man, the
neighbor, came running and yelling at him “Don’t try to run. Don’t
try to run.” (Id. at 37). [Appellant] had his hand out in an
attempt at keeping the man away from him and in fear for his life.
(See id. at 38). He looked over his shoulder and saw another
man coming at him. That man, Deputy Leggore, picked him up
and slammed him to the ground. (See id.). His face hit the
ground and his arm was fractured in two places. (See id.). He
indicated that he hit his head and saw blue. (See id. at 40).
[Appellant] told Leggore that he thought his arm was broken and
he asked him to ease up, but Leggore had his knee in the back of
his neck and would not ease up. (See id. at 38).
[Appellant] denied that he was leaving the scene of an
accident as he had no warrants, nothing illegal in the car and valid
registration and insurance. (See id. at 39). [Appellant] also
testified that he did not refuse the blood test, but rather, he said
he was exercising his right to an attorney and would give the blood
once he was given an attorney. (See id. at 41).
Following the accident, Appellant had his car towed to a
mechanic by the same towing company used by the Middletown
Police Borough Department. He received a receipt indicating that
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the cause of the accident was a broken control arm. (See id. at
43).
(Trial Court Opinion, 2/14/18, at 1-4) (record citation formatting provided).
The trial court found Appellant guilty of DUI on September 5, 2017,
following a bench trial. It sentenced Appellant on that same date to a term of
six months of probation, and a $300.00 fine. The court denied Appellant’s
timely post-sentence motion challenging the weight of the evidence on
December 22, 2017. This timely appeal followed.2
Appellant presents one question for our review:
Whether the trial court erred in denying Appellant’s post sentence
motion challenging the weight of the evidence where the
Commonwealth failed to prove beyond a reasonable doubt that
Appellant was incapable of safe driving and that his accident,
slurred speech and unsteady gait were actually caused by alcohol
impairment as opposed to Appellant’s injuries?
(Appellant’s Brief, at 5) (underline and some capitalization omitted).
Appellant argues that his demeanor and physical signs of intoxication,
including difficulty speaking and walking, were attributable to the personal
injuries he suffered when Deputy Leggore tackled him to the ground, and not
to alcohol consumption. (See id. at 11, 13-15). He also maintains that
mechanical issues affected his ability to steer his vehicle and caused the
accident, as evidenced by the note prepared by his mechanic. (See id. at 11,
15). This issue merits no relief.
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2 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on January 30, 2018. The court entered an opinion
on February 14, 2018. See Pa.R.A.P. 1925.
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At the outset, we note that the weight attributed to the
evidence is a matter exclusively for the fact finder, who is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses. The grant of a new trial is not
warranted because of a mere conflict in the testimony and must
have a stronger foundation than a reassessment of the credibility
of witnesses. Rather, the role of the trial judge is to determine
that, notwithstanding all of the facts, certain facts are so clearly
of greater weight, that to ignore them or to give them equal
weight with all of the facts is to deny justice.
An appellate court’s purview:
is extremely limited and is confined to whether the
trial court abused its discretion in finding that the . . .
verdict did not shock its conscience. Thus, appellate
review of a weight claim consists of a review of the
trial court’s exercise of discretion, not a review of the
underlying question of whether the verdict is against
the weight of the evidence.
An appellate court may not reverse a verdict unless it is so
contrary to the evidence as to shock one’s sense of justice. [T]he
trial court’s denial of a motion for a new trial based on a weight of
the evidence claim is the least assailable of its rulings.
Commonwealth v. Hicks, 151 A.3d 216, 223 (Pa. Super. 2016), appeal
denied, 168 A.3d 1287 (Pa. 2017) (citations and quotation marks omitted).
Here, after considering all of the evidence as factfinder, the trial court
found that there was ample evidence that Appellant was driving under the
influence of alcohol. (See Trial Ct. Op., at 5). Upon review, we agree.
Specifically, the record reflects that Appellant exhibited several signs of
intoxication, including emanating an odor of alcohol, slurred speech, and an
unsteady gait. (See N.T. Trial, at 12, 23). Appellant was initially
unresponsive when Deputy Leggore approached his vehicle, and he repeatedly
attempted to remove his car and then himself from the scene of the accident.
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(See id. at 7-8, 10). Appellant admitted to drinking three beers during the
evening, and he threw a lethargic punch at Deputy Leggore. (See id. at 10,
12-13, 34). Both Officer Bennett and Deputy Leggore testified that, based on
their observations, they believed that Appellant was incapable of safely driving
his vehicle. (See id. at 12-13, 23-24).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion in denying Appellant’s weight claim. See Hicks, supra at 223.
Therefore, Appellant’s sole issue on appeal does not merit relief. Accordingly,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/05/2018
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