J-S27039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS M. KERICK, JR. :
:
Appellant : No. 3738 EDA 2017
Appeal from the Judgment of Sentence October 5, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007172-2016
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 23, 2018
Appellant, Thomas M. Kerick, Jr., appeals from the Judgement of
Sentence entered following his conviction of, inter alia, DUI-General
Impairment/Incapable of Safe Driving.1 After careful review, we affirm on the
basis of the trial court’s Opinion.
The relevant facts and procedural history, as gleaned from Notes of
Testimony and the trial court’s Opinion, are as follows. On March 12, 2016,
Appellant, the driver of a motorcycle, was involved in a single-vehicle accident.
Officer Jay Nakahara of the Upper Merion Township Police Department was
dispatched to the scene. Upon his arrival, he observed a motorcycle, later
identified as belonging to Appellant, lying on its side in the middle of Crooked
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1 75 Pa.C.S. § 3802(a)(1).
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Lane. At this location, Crooked Lane slopes slightly and makes a sharp, 90-
degree turn to the right.2
Approximately 15-20 feet away, Officer Nakahara found Appellant lying
face down in a wooded area. Appellant was initially unresponsive and had a
bleeding head wound. Officer Nakahara approached Appellant to ascertain his
condition and render medical care, whereupon he detected a strong odor of
alcohol on Appellant’s breath. Appellant was initially unresponsive, but
regained consciousness within approximately a minute of Officer Nakahara’s
arrival.
After Appellant regained consciousness, Officer Nakahara questioned
him. Appellant responded with only one-word answers and his speech was
slow and slurred. Officer Nakahara suspected that Appellant had been driving
under the influence, but because of Appellant’s medical condition and possible
serious head injury, he did not conduct any field sobriety tests. Ultimately,
paramedics airlifted Appellant to the hospital.
Appellant lived approximately a mile from the scene of the accident.
The weather that evening was cool, clear, and dry. There was nothing in the
road that would have created a hazard to drivers. From the position of the
motorcycle in the middle of the road, Officer Nakahara did not believe that
Appellant had swerved to avoid a hazard.
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2Officer Nakahara testified that, to navigate this notorious turn safely, a driver
must “slow down significantly.” N.T., 5/18/17, at 10, 15.
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Police charged Appellant with a number of offenses arising from the
accident, including, relevant to the instant appeal, DUI-General Impairment.
Appellant proceeded to a bench trial at which only Officer Nakahara
testified. At the conclusion of the trial, the court found Appellant guilty.3
Appellant filed a timely Post-Trial Motion in which he challenged the sufficiency
and weight of the evidence. The trial court denied Appellant’s Motion.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Was the evidence presented at trial insufficient as a matter of
law to convict [Appellant] of DWI (General Impairment) and
Reckless/Careless Driving?
2. Did the [t]rial [c]ourt commit an abuse of discretion by denying
Appellant[’s] [M]otion for a [N]ew [T]rial based upon weight of
the evidence?
Appellant’s Brief at 4.
Appellant first challenges the sufficiency of the evidence supporting his
conviction for DUI-General Impairment.4 Appellant avers that the quality and
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3 The court also convicted Appellant of the summary offenses of Careless
Driving, Use of Improper Class of License, Not Wearing Proper Headgear, and
No Eye Protection. See 75 Pa.C.S. §§ 3714(a); 1504(a); 3525(a); and
3525(b), respectively. Appellant is not challenging those convictions on
appeal.
4 Although Appellant purports to also appeal from his Reckless/Careless
Driving conviction in this issue, Appellant has not presented any argument,
other than a passing reference to the fact of the conviction, in support of this
claim in his Brief to this Court. Thus, for appellate review purposes, Appellant
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quantity of the Commonwealth’s evidence, as set forth supra, is insufficient
to sustain his conviction. He posits that the Commonwealth’s evidence that
his speech was slurred and that he gave only one-word answers to Officer’s
Nakahara’s questions was equally consistent with a head injury as it was with
intoxication. Id. at 8. He argues that the only proffered evidence of his
inability to operate his motorcycle safely was the accident itself. Id. at 11.
Thus, he concludes the court based its verdict entirely on “conjecture[] and
suspicion.” Id.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review
claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and
citations omitted). “Further, a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact—while passing on the credibility
of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence.” Id. “In conducting this review, the appellate court
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has abandoned this claim. Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (concluding that the failure to properly include a developed
argument in an appellate brief constitutes waiver).
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may not weigh the evidence and substitute its judgment for the fact-finder.”
Id.
Appellant challenges the sufficiency of the evidence supporting his
conviction for DUI-General Impairment/Incapable of Safe Driving. A person
is guilty of DUI-General Impairment if he “drive[s], operate[s,] or [is] in actual
physical control of the movement of a vehicle after imbibing a sufficient
amount of alcohol such that [he] is rendered incapable of safely [doing so].”
75 Pa.C.S. § 3802(a)(1).
We have thoroughly reviewed the Certified Record, the parties’ Briefs,
the applicable law, and the well-reasoned trial court Opinion, and conclude
that the trial court did not err as a matter of law in finding that the
Commonwealth presented sufficient evidence to sustain Appellant’s
conviction. The trial court ably disposes of this issue with citation to relevant
authority and the record and we affirm on the basis of that Opinion. See Trial
Ct. Op., 12/26/17, at 2-5 (concluding that: (1) the evidence, when viewed in
the light most favorable to the Commonwealth as the verdict-winner,
established that Appellant “had imbibed significant alcohol based on the strong
odor of alcohol on his breath and slurred speech[;]” and (2) based on the
totality of the circumstances, the evidence was sufficient to establish that the
alcohol caused Appellant to be unable to safely operate his motorcycle).
Appellant also challenges the court’s verdict as against the weight of the
evidence. Appellant’s Brief at 12-13. Appellant claims that the trial court
erred in weighing Officer Nakahara’s testimony about Appellant’s slurred
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speech and the odor of alcohol on his breath more heavily than the testimony
about the inherent dangers of travelling on Crooked Lane. Id. at 12-13.
Appellant also faults the court for not crediting his theory that his slurred
speech was caused by his head injury and not from his alcohol consumption.
Id. at 12-13.
Initially, we note that “[t]he 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.” Commonwealth v. Champney,
832 A.2d 403, 408 (Pa. 2003) (citations omitted).
A trial court reviewing a challenge to the weight given the evidence may
grant relief only if “the jury’s verdict is so contrary to the evidence as to shock
one’s sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Commonwealth v. Clay, 64
A.3d 1049, 1055 (Pa. 2013).
The trial court’s denial of a weight claim “is the least assailable of its
rulings.” Commonwealth v. Diggs, 949 A.2d 873, 880 (Pa. 2008). See
also Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006)
(stating that because the trial court “is in the best position to view the
evidence presented,” an appellate court will give that court “the utmost
consideration” when reviewing its weight determination). “Where . . . the
judge who presided at trial 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.” Commonwealth v. Morales, 91 A.3d
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80, 91 (Pa. 2014) (citation omitted). This Court is instead limited to
evaluating only the trial court’s exercise of discretion in denying that claim.
Id.
“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.” Id. As our
Supreme Court has made clear, reversal is only appropriate “where the facts
and inferences disclose a palpable abuse of discretion[.]” Id.
After a thorough review of the record, the Briefs of the parties, the
applicable law, and the comprehensive and well-reasoned Opinion of the trial
court, we discern no abuse of discretion and conclude that there is no merit
to Appellant’s weight of the evidence claim. See Trial Ct. Op. at 5-6
(concluding that the evidence was not so vague and tenuous that the verdict
shocks the conscious or is against the weight of the evidence).
Accordingly, we affirm on the basis of the trial court’s December 26,
2017 Opinion. The parties are instructed to attach a copy of the trial court’s
December 26, 2017 Opinion to all future filings.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/18
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Circulated 06/26/2018 02:30 PM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : No. CP-46-CR-0007172-2016
v.
3738 EDA 2017
THOMAS KERICK
OPINION
Page, J. December 26, 2017
Defendant appeals from this Court's Judgement of Sentence on October 5, 2017. For the
reasons set forth below, Defendant's appeal is without merit. Therefore, any claim of error on the
part of this Court should be dismissed and the ruling should be affirmed.
FACTS AND PROCEDURAL HISTORY
The Defendant was arrested and charged with DUI and various summary violations. At
trial, Officer Nakahara testified as the sole witness. Officer Nakahara had four years of
professional experience as well as police training regarding intoxication and field sobriety
testing. .N. T. Trial 5/18/17 p. 7. On March 12, 2016, Officer Nakahara was dispatched to a single
motorcycle accident in King of Prussia, PA. Id at 9. The motorcycle was lying on its side in the
middle of the road where there is a 90 degree intersection. Id. Approximately 15 to 20 feet away
from the motorcycle, in a wooded area, a man was lying face down, and Officer Nakahara
immediately began to render medical aid. Id. at 11. The man, identified as the Defendant, was
initially unresponsive, and had a laceration to his head. Id. at 11-12. When the officer
approached, he detected a strong odor of alcohol on the Defendant's breath, his speech was slow
and slurred, and the Defendant only responded with one word answers. Id. at 13.
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The Defendant lived approximately a mile from where the accident occurred. Id. at 17.
Nothing was in the road which could create a hazard that night, and it was cool, clear, and there
was no precipitation. Id. Due to the Defendant's medical condition, and possible head injury, no
field sobriety tests were conducted. Id. at 18. From the position of the motorcycle in the middle
of the road, Officer Nakahara did not believe that the Defendant swerved. Id at 31. If the
Defendant had swerved to avoid a hazard, Officer Nakahara believed the motorcycle would be to
the left or right of the road and would not be in the middle of the lane. Id.
This Court found the Defendant guilty of DUI- Unsafe Driving as well as the summary
offenses of careless driving, use of improper class of license, not wearing proper headgear, and
no eye protection. Id. at 47. The Defendant filed a post -sentence motion challenging the weight
and sufficiency of the evidence which was denied on October 18, 2017. The Defendant filed a
timely Notice of Appeal.
ISSUES
Defendant's Concise Statement raises the following issues:
1. The evidence offered at trial to sustain the conviction is insufficient as a matter of law.
The evidence failed to establish material elements of DUI beyond a reasonable doubt,
specifically, that defendant was impaired, and that he was incapable of safely operating a
motor vehicle.
2. Verdict is contrary to the weight of the evidence, and the conviction of DUI constitutes a
miscarriage ofjustice. The intersection where this accident occurred is an inherently
dangerous stretch of roadway where other accidents occurred previously. This evidence
was clearly of greater weight than other facts presented and not considering said evidence
as such was error.
ANALYSIS
I. Sufficiency of the Evidence
The Defendant first challenges whether the evidence was sufficient to find the Defendant was
impaired and incapable of safely driving. Whether sufficient evidence exists to support the
2
verdict is a question of law; an appellate Court's standard of review is de novo and their scope of
review is plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (citation
omitted). When reviewing challenges to the sufficiency of the evidence, appellate courts
evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving
the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Duncan, 932 A.2d 226, 231 (Pa.Super.2007) (citation omitted). "Evidence
will be deemed sufficient to support the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused, beyond a reasonable doubt." Id.
(quoting Commonwealth v. Brewer, 876 Aid 1029, 1032 (Pa.Super.2005)).
However, the Commonwealth need not establish guilt to a mathematical certainty, and it may
sustain its burden by means of wholly circumstantial evidence. Id. In addition, the appellate court
may not substitute its judgment for that of the factfinder, and where the record contains support
for the convictions, they may not be disturbed. Id. Lastly, the finder of fact is free to believe
some, all, or none of the evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804
(Pa.Super.2006). Commonwealth v. Smith, 2016 PA Super 187, 146 A.3d 257, 261-62 (Pa.
Super. Ct. 2016). 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. Commonwealth v. Mucci, 2016 PA Super 137, 143
A.3d 399, 409 (Pa. Super. Ct. 2016), reargurnent denied (Aug. 31, 2016).
To prove a defendant guilty beyond a reasonable doubt of DUI -General Impairment, the
Commonwealth must prove that the defendant was "driv[ing], operat[ing] or [...] 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
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control of the movement of the vehicle. 75 Pa.C.S.A. § 3802 (a) (I). By the plain language of
subsection 3802(a)(1), driving is proscribed after the imbibing of sufficient alcohol such that the
individual is rendered incapable of safely driving. Commonwealth v. Segida, 604 Pa. 103, 114,
985 A.2d 871, 878 (2009).
In evaluating whether an individual is capable of safely driving and is under the influence of
a sufficient amount of alcohol:
the Commonwealth may proffer [...] the following: the offender's actions and behavior,
including manner of driving and ability to pass field sobriety tests; demeanor, including
toward the investigating officer; physical appearance, particularly bloodshot eyes and other
physical signs of intoxication; odor of alcohol, and slurred speech. Blood alcohol level may
be added to this list, although it is not necessary and the two hour time limit for measuring
blood alcohol level does not apply[....]The weight to be assigned these various types of
evidence presents a question for the fact -finder, who may rely on his or her experience,
common sense, and/or expert testimony. Regardless of the type of evidence that the
Commonwealth proffers to support its case, the focus of subsection 3802(a)(1) remains on
the inability of the individual to drive safely due to consumption of alcohol -not on a
particular blood alcohol level.
Commonwealth v. Segida, 604 Pa. 103, 115-16, 985 A.2d 871, 879 (2009).
In this case, the uncontested evidence established that the Defendant was in a single
vehicle accident on a road within a mile of his home on a clear, dry night. The Defendant's
positioning was such that the responding officer did not believe the accident was caused by the
Defendant swerving to avoid an unexpected object, but rather that it appeared the Defendant just
lost control of his motorcycle. The Defendant's breath smelled strongly of alcohol, his speech
was slurred, and he only provided one word answers. When evaluating the evidence in the light
most favorable to the Commonwealth as verdict winner, the evidence established that the
Defendant had imbibed significant alcohol based on the strong odor of alcohol on his breath and
slurred speech. The remaining question is whether that amount of alcohol was sufficient to
render the Defendant incapable of safely driving. Based on the totality of the circumstances, the
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lack of any hazard to explain the accident, the positioning of the bike and the Defendant at the
scene, the clear and dry road conditions, and the close proximity of the accident to the
Defendant's home, the evidence was sufficient to establish that the alcohol caused the Defendant
to be unable to safely operate his motorcycle. The Defendant's unexplained loss of control on a
road which common sense dictates was familiar to the Defendant is indicative of the Defendant's
inability to safely operate or control his motorcycle due to the alcohol in his system. Thus, the
evidence was sufficient to establish that the Defendant imbibed a sufficient amount of alcohol
that rendered the Defendant incapable of safely driving or operating the motorcycle.
II. Weight of the Evidence
The Defendant challenges the weight of the evidence alleging that the fact that the roadway
was dangerous was "clearly of greater weight than other facts presented and not considering said
evidence as such was error." 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. Commonwealth v. Clay,
619 Pa. 423, 64 A.3d 1049, 1054-55 (2013) (quotation marks, quotations, and citations omitted).
In order for an appellant 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."
Commonwealth v. Sullivan, 820 A.2d 795, 806 (2003) (quotation marks and quotations omitted);
Commonwealth v. Smith, 2016 PA Super 187, 146 A.3d 257, 264-65 (Pa. Super. Ct. 2016);
Commonwealth v. Devine, 2011 PA Super 163, 26 A.3d 1139, 1146 (Pa. Super. Ct. 2011). A 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. Diggs, 949 A.2d 873, 879-80 (Pa. 2008).
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of prior accidents on the
Initially, contrary to the Defendant's contention, this evidence
claim is that the
roadway was presented at trial, and considered by this Court. Defendant's
rendering the verdict a
roadway being dangerous is of greater weight than all other evidence
at this
miscarriage of justice. The testimony at trial was that other accidents had occurred
the road.
location, and that it is not an easy road to navigate for those who aren't familiar with
or that the road is
NT. Trial 5/18/17 p. 26. This does not mean the road is inherently dangerous,
so hard to navigate that accidents are common. A 90 degree turn is not atypical while
driving.
The fact that other accidents_have occurred at this intersection does not render all the other
evidence so inconsequential that it was a miscarriage of justice to find the Defendant guilty.
While a 90 degree turn in the road may be harder to navigate than a straight road, it is
substantially harder to navigate while intoxicated. The evidence established the Defendant had
imbibed alcohol and clearly was incapable of safely operating his motorcycle in light of the
accident. The Defendant's slurred speech indicates that his motor functions were impaired by the
alcohol such that he was involved in a single vehicle accident on dry roadways. This evidence is
not so vague or tenuous that it shocks the conscious, and the verdict is not against the weight of
the evidence.
CONCLUSION
For all of the aforementioned reasons, this Court's decision and order should be
AFFIRMED.
BY THE COURT:
Copies of the above Opinion
Mailed on it -7.b- t7
By Interoffice Mail to:
Robert Falin, Esq., ADA
Anne Schools - Court Administration
G/RRETT D. PAGE, J.
By First Class Mail to:
Jim Lyons, Esq.
Thomas Kerick, Defendant
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Judicial S etary
Com. v. Kerick, T.
Combined Opinion