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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HISHEAM LAMAR ROBERTSON, :
:
Appellant : No. 1721 EDA 2017
:
Appeal from the Judgment of Sentence February 1, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0000251-2016
BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 06, 2018
Appellant, Hisheam Lamar Robertson, appeals from the Judgment of
Sentence entered by the Chester County Court of Common Pleas following his
convictions after a bench trial of, inter alia, Driving Under the Influence
(“DUI”) (driving under the combined influence of alcohol and a drug or
combination of drugs), Possession of a Small Amount of Marijuana, and
several summary traffic offenses.1 Appellant challenges only the weight of the
evidence. We affirm.
The trial court set forth the underlying facts and we need not repeat
them in detail. See Trial Court Opinion, filed 7/21/17, at 1-5, 10-22. Briefly,
on August 22, 2015, Pennsylvania State Police Trooper Joseph Carlson pulled
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1
75 Pa.C.S. § 3802(d)(3); and 35 P.S. § 780-113(a)(31), respectively.
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Appellant over for speeding and weaving in a work zone, and striking the white
line dividing the lanes once. During the stop, Appellant failed to produce his
driver’s license, registration, and financial responsibility cards, and he
provided a false name to the officer. Appellant appeared overly nervous and
was “giggly” during the stop. The mobile video recorder in the police car
recorded Appellant’s erratic driving and his conduct during and after the stop.
Appellant’s eyes appeared bloodshot and glassy, and both Appellant and the
vehicle smelled like alcohol and marijuana.
Appellant failed several field sobriety tests. Although Appellant agreed
to provide a breath sample, he evaded the test and failed to provide a testable
breath sample. After initially denying that he had been drinking during the
stop, Appellant later admitted that he had consumed one Olde English2 before
driving. Appellant claimed that he was exhausted following a twelve-hour shift
at work. Based on his extensive experience, Trooper Carlson believed that
Appellant was impaired by alcohol and marijuana to an extent that rendered
him incapable of safely driving, and arrested Appellant. Trooper Carlson
recovered marijuana from the center console in the vehicle.
Based on Trooper Carlson’s observations, the Commonwealth charged
Appellant with, among other things, DUI (driving under the combined
influence of alcohol and a drug or combination of drugs), Possession of a Small
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2
Olde English 800 is a brand of malt liquor.
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Amount of Marijuana, and several summary traffic offenses. After a bench
trial, the trial court convicted Appellant of the above offenses. On February
1, 2017, the trial court sentenced Appellant to an aggregate term of 72 hours
to 6 months’ incarceration, followed by 30 days’ probation. Appellant filed a
timely Post-Sentence Motion, which the trial court denied on May 1, 2017.
On May 30, 2017, Appellant filed a timely Notice of Appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
In his sole issue on appeal, Appellant challenges the weight of the
evidence when he states that “[t]he facts failed to establish that the trooper
ever observed in the Appellant any indicia of impairment that didn’t speak
equally to indicia of exhaustion.” Appellant’s Brief at 14.3
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).
Resolving contradictory testimony and questions of credibility are matters for
the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.
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The Commonwealth avers that Appellant “is challenging the arresting
officer’s credibility and not the weight of the evidence.” Commonwealth’s Brief
at 14. A challenge to the fact-finder’s credibility determinations is considered
a challenge to the weight of the evidence. See Commonwealth v. Gibbs,
981 A.2d 274, 281-82 (Pa. Super. 2009).
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Super. 2000). It is well-settled that we cannot substitute our judgment for
that of the trier of fact. Talbert, supra at 546.
Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id. at 545-46.
“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 [or is not] against the weight of the
evidence.” Id. at 546. “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.” Id.
Furthermore, “in order for a defendant to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Id. (internal quotation
marks and citation omitted). As our Supreme Court has made clear, reversal
is only appropriate “where the facts and inferences disclose a palpable abuse
of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)
(citations omitted, emphasis in original).
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“[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.
2014). For that reason, the trial court need not view the evidence in the light
most favorable to the verdict winner, and may instead use its discretion in
concluding whether the verdict was against the weight of the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 2000).
After a thorough review of the certified record, the briefs of the parties,
the applicable law, and the comprehensive and well-reasoned Opinion of the
Honorable Anthony A. Sarcione, we conclude that there is no merit to
Appellant’s challenge to the weight of the evidence. The trial court carefully
evaluated the record and the evidence in reviewing Appellant’s weight claim.
See Trial Court Opinion at 22-28.
Appellant essentially asks us to reassess the credibility of the police
officer and reweigh the testimony and evidence presented at trial. We cannot
and will not do so. Our review of the record shows that the evidence is not
tenuous, vague, or uncertain, and the verdict was not so contrary to the
evidence as to shock the court’s conscience.
We discern no abuse of discretion in the trial court’s denial of Appellant’s
weight claim. Accordingly, Appellant is not entitled to relief on his weight
claim.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2018
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