Com. v. Ogden, T.

J-S29025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIM A. OGDEN :
:
Appellant : No. 41 WDA 2022

Appeal from the Judgment of Sentence Entered September 20, 2021
In the Court of Common Pleas of Clearfield County
Criminal Division at CP-17-CR-0000494-2018

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 21, 2022

Tim A. Ogden (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted him of driving under the influence of

alcohol (DUI), aggravated assault by vehicle while DUI, driving a vehicle at

unsafe speed, careless driving, and reckless driving.1 We affirm.

The trial court summarized the facts underlying this appeal as follows:

[This case] involves a multi-vehicle accident between
[Appellant] and William and Donna Bloom [(Mr. Bloom and Mrs.
Bloom, respectively) (collectively, the Blooms)]. On December 3,
2017, Trooper Kerry Jodon reported to the scene of a two[-
]vehicle crash on Rockton Mountain in Clearfield County. At the
scene, Trooper Jodon found a red pickup truck belonging to
[Appellant] facing north in the westbound lane of traffic, and [the
Blooms’] SUV was facing west in the westbound lane. Both
vehicles sustained major damage, requiring the vehicles to be
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 75 Pa.C.S.A. §§ 3802(a)(1), 3735.1, 3361, 3714, 3736.
J-S29025-22

towed from the scene. [Appellant], Mrs. Bloom, and Mr. Bloom
were all transported to the hospital for treatment of their injuries
incurred from the crash. Mrs. Bloom sustained a broken wrist and
was required to have surgery to have a stabilizing device placed
through her wrist and arm. Mr. Bloom, who previously had heart
surgery, was required to stay in the hospital for several days for
observation due to concerns of potential blood clots.

Trooper Jodon interviewed Mr. Bloom and first responders,
and he investigated the scene of the accident. Because
[Appellant] had been transported to the hospital prior to Trooper
Jodon’s arrival, Trooper Ian Mactavish went to interview
[Appellant] at the hospital. Based on the investigation, Trooper
Jodon determined that [Appellant] was driving too fast into a left
[-]hand curve, causing him to lose control of his vehicle. Based
on reports from first responders and Trooper Mactavish, Trooper
Jodon also concluded that [Appellant] was under the influence of
alcohol at the time of the accident.

As a result of the investigation, a Criminal Complaint was
filed on April 1, 2018. The complaint charged [Appellant] with
[the above offenses, as well as two additional counts of DUI.2] On
May 18, 2018, [Appellant] waived his preliminary hearing and all
charges were held for court. After multiple continuances
requested by [Appellant], [Appellant] ultimately waived his right
to a jury trial on December 12, 2019, and a non-jury trial was
scheduled on January 16 and 17, 2020.

Trial Court Opinion, 3/3/22, at 1-2 (footnote added).

Two days before trial, the Commonwealth filed a motion to amend the

criminal information to include two additional charges: aggravated assault by

vehicle and recklessly endangering another person.3 The trial court denied

the motion, and the Commonwealth appealed. This Court affirmed the trial

____________________________________________

2 See 75 Pa.C.S.A. § 3802(a)(2) and (b).

3 See 75 Pa.C.S.A. §§ 3732.1(a), 18 Pa.C.S.A. § 2705.

-2-
J-S29025-22

court’s order denying amendment of the criminal information. See

Commonwealth v. Ogden, 240 A.3d 171 (Pa. Super. 2020) (unpublished

memorandum). The Commonwealth did not petition for allowance of appeal

to the Pennsylvania Supreme Court.

The case proceeded to a bench trial on June 1, 2021, at which the

Commonwealth withdrew two DUI counts. The trial court ultimately convicted

Appellant of the remaining charges. Appellant filed a post-sentence motion,

which the trial court denied. On September 20, 2021, the trial court sentenced

Appellant to 24 – 48 months of incarceration. Appellant filed this timely

appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of

matters complained of on appeal. The trial court filed an opinion on March 3,

2022.

Appellant presents the following issues for review:

I. WHETHER THE TRIAL COURT ERRED BY FINDING []
APPELLANT GUILTY OF THE CHARGES OF [DUI] OR
AGGRAVATED ASSAULT BY VEHICLE WHILE [DUI] BECAUSE
THE EVIDENCE PRESENTED BY THE COMMONWEALTH AT
TRIAL WAS INSUFFICIENT TO ESTABLISH THAT []
APPELLANT IMBIBED ALCOHOL PRIOR TO DRIVING TO A
LEVEL THAT MADE HIM INCAPABLE OF SAFE DRIVING[?]

II. WHETHER THE TRIAL COURT ERRED BY FINDING THE
APPELLANT GUILTY OF THE CHARGE OF AGGRAVATED
ASSAULT BY VEHICLE WHILE [DUI] BECAUSE THE
EVIDENCE PRESENTED BY THE COMMONWEALTH AT TRIAL
WAS INSUFFICIENT TO ESTABLISH THAT [] APPELLANT
CAUSED THE ACCIDENT THAT INJURED THE VICTIMS[?]

III. WHETHER THE TRIAL COURT ERRED BY ABUSING ITS
DISCRETION AND DENYING [] APPELLANT HIS RIGHT TO A
FAIR TRIAL BY NOT PROPERLY CONSIDERING THE

-3-
J-S29025-22

EVIDENCE PRESENTED BY [] APPELLANT DURING HIS NON-
JURY TRIAL[?]

Appellant’s Brief at 6 (issues renumbered).

We address Appellant’s first and second issues together, as both

challenge the sufficiency of the evidence underlying Appellant’s convictions of

DUI and aggravated assault by vehicle while DUI. Id. at 17. Appellant first

disputes evidence that he “imbibed alcohol prior to driving to a level that made

him incapable of safe driving” in violation of 75 Pa.C.S.A. § 3802(a)(1). Id.

at 17. Appellant admits “to drinking six (6) beers, the day before the

accident, Saturday.” Id. at 18 (emphasis in original). Appellant

acknowledges he consumed one beer at noon the day of the accident, and

that an open beer was found “at the scene of the accident, jammed down

between the driver’s seat and console.” Id. Notwithstanding, Appellant

challenges Trooper Jodon’s description of Appellant, three hours after the

accident, as having bloodshot and glassy eyes and smelling of alcohol. Id. at

19. Appellant emphasizes the absence of field sobriety test evidence and the

trial court’s exclusion of his blood alcohol content test results. Id. On this

basis, Appellant claims the evidence was insufficient to establish he

“consumed alcohol to a level that made him incapable of safe driving.” Id. at

20.

In his second issue, Appellant cites case law recognizing that an

intervening force, and not intoxication, may be the cause of an accident.

Appellant’s Brief at 23-34. Appellant calls our attention to Commonwealth

-4-
J-S29025-22

v. Moyer, 648 A.2d 42 (Pa. Super. 1994). Appellant’s Brief at 23. In Moyer,

Appellant explains, a person on the shore of a river swung a stick at the victim,

who was riding a jet-ski. Id. at 23 (citing Moyer, 648 A.2d at 43).

The victim lost control of his jet ski and veered into the path of
defendant’s craft which struck and killed him. [Moyer, 648 A.2d
at 43.] There was no testimony that the defendant was speeding,
and an intervening force actually caused the accident. Id. at 47.

Appellant’s Brief at 23-24.4 Referencing the evidence in Moyer, Appellant

argues that in this case, “no evidence was presented as to the Appellant being

intoxicated to a point that he was incapable of safe driving.” Id. at 24.

Appellant claims his photographic evidence showed that after he swerved to

avoid anti-skid materials on the highway, another vehicle struck him from

behind and caused the accident. Id. Appellant thus posits: “This evidence

provides reasonable doubt that Appellant caused the accident in question.”

Id. at 14.

In reviewing Appellant’s claims, we observe:

Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the [factfinder] to find every element
of a crime beyond a reasonable doubt.

____________________________________________

4 Where the Commonwealth failed to establish prima facie evidence of
involuntary manslaughter, this Court explained that despite the appellant’s
inebriation, “there was no evidence that appellant could have avoided this
tragic accident.” Moyer, 648 A.2d at 46.

-5-
J-S29025-22

Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (citations

and quotation marks omitted).

In applying the above test, we may not weigh the evidence and
substitute our judgment for [that of] the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
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. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[factfinder,] while passing upon the credibility of the witnesses
and the weight of the evidence produced, is free to believe all,
part] or none of the evidence.

Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).

The Motor Vehicle Code provides, in relevant part, as follows:

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). To prove a violation of this section, the

Commonwealth must show: (1) that the defendant was the operator of a

motor vehicle; and (2) that while operating the vehicle, the defendant was

under the influence of alcohol to such a degree as to render him incapable of

safe driving. Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super.

2000). To establish the second element, the Commonwealth must show that

alcohol has

-6-
J-S29025-22

substantially impaired the normal mental and physical faculties
required to safely operate the vehicle. Substantial impairment, in
this context, means a diminution or enfeeblement in the ability to
exercise judgment, to deliberate or to react prudently to changing
circumstances and conditions. Evidence that the driver was not
in control of himself, such as failing to pass a field sobriety test,
may establish that the driver was under the influence of alcohol
to a degree which rendered him incapable of safe driving,
notwithstanding the absence of evidence of erratic or unsafe
driving.

Commonwealth v. Gause, 164 A.3d 532, 541 (Pa. Super. 2017) (en banc)

(citation omitted). The types of evidence the Commonwealth may offer

include:

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, 985 A.2d 871, 879 (Pa. 2009).

With respect to aggravated assault by vehicle while DUI, the Motor

Vehicle Code provides:

Any person who negligently causes serious bodily injury to
another person as the result of a violation of section 3802 (relating
to driving under the influence of alcohol or controlled substance)
and who is convicted of violating section 3802 commits a felony
of the second degree when the violation is the cause of the injury.

-7-
J-S29025-22

75 Pa.C.S.A. § 3735.1(a).

Appellant’s sufficiency claims challenge the trial court’s findings that:

(1) his inebriation rendered him incapable of safely driving a vehicle, and (2)

his inebriation, and not an intervening factor, caused the accident. See

Appellant’s Brief at 14, 24. The trial court rejected Appellant’s first claim

regarding his inebriation, explaining:

During the trial, Andrew Smith, a volunteer firefighter who
responded to the scene, testified that when [Appellant] was
removed from his truck, [Appellant] was stumbling and slurring
his words. [See N.T., 6/1/21, at 9, 14.] Smith also reported to
Trooper Jodon at the time of the accident that he had smelled
alcohol and observed a large can of beer in the center console of
[Appellant’s] vehicle. [Id. at 9-10, 14.] Likewise, Trooper
Mactavish testified that, at the hospital, [Appellant] smelled like
alcohol, and he had slurred speech and glassy eyes. [Id. at 56.]
Above all, [Appellant] testified that he had been drinking alcohol
immediately prior to driving the vehicle. [Id. at 112. Appellant]
stated that he was drinking beer while walking his dog, and he
had consumed more beer at lunch and earlier that afternoon. [Id.
at 118-19.] There is more than enough evidence to establish that
[Appellant] had consumed alcohol prior to driving, causing
[Appellant] to drive under the influence of alcohol.

As stated above, Trooper Jodon’s investigation of the scene
caused him to believe that [Appellant] was driving too fast to be
able to safely navigate the left[-]hand turn. The fast driving
caused [Appellant] to lose control of his vehicle and slide into the
path of the Blooms’ vehicle. The nature and cause of the accident
itself shows that the consumption of alcohol substantially impaired
[Appellant’s] ability to exercise judgment and react prudently to
changing conditions. Had [Appellant] not been under the
influence of alcohol, he would have been better able to judge the
appropriate speed for the curve and be able to react to the
changing conditions. Therefore, the Commonwealth has
established, beyond a reasonable doubt, that [Appellant]
consumed alcohol prior to driving, and that consumption rendered
[Appellant] incapable of safely driving his vehicle.

-8-
J-S29025-22

Trial Court Opinion, 3/3/22, at 6-7 (citations to Notes of Testimony added).

The trial court further rejected Appellant’s claim that an intervening

factor, and not his inebriation, caused the accident.5 The court explained:

During the trial, [Appellant] stated that he believed he was
hit from behind after he regained control of his vehicle. [See N.T.,
6/1/21, at 115.] [Appellant] concluded that the vehicle that t-
boned him, namely the Blooms’ SUV, had to be the vehicle
responsible for hitting his truck from behind. [See id. at 120.]
[Appellant] believed that pictures of his vehicle’s damage
established his version of events. However, looking at all of the
evidence, this [c]ourt did not find this scenario believable. Both
Mr. and Mrs. Bloom testified that they were driving from the
opposite direction of [Appellant]. [See id. at 19 (wherein Mr.
Bloom testified he traveled on Route 322, “got to the top of
Rockton Mountain to make a left to go towards DuBois.”), 20
(wherein Mr. Bloom indicated that Appellant’s vehicle was driving
towards him), 32 (wherein Mrs. Boom testified she and Mr. Bloom
were driving from their home towards DuBois)]. Also, based on
his investigation, Trooper Jodon stated that, in his opinion, the
Blooms’ vehicle was traveling west in the westbound lane, not east
as [Appellant] argued. [See id. at 71 (wherein Trooper Jodon
testified, “I determined [Appellant] was negotiating a left-hand
turn, his vehicle went off the right-hand berm of the roadway in
which it produced yaw marks.”), 73 (wherein Trooper Jodon
testified Appellant slid into the path of the Blooms’ vehicle).] In
making his determination, Trooper Jodon looked at the yaw
marks2 on the road. The road showed two distinct areas of yaw
marks: the first led from the eastbound, right[-]hand lane to the
right berm of the road, and the second set led sideways into the
westbound lane, directly in the path of the Bloom’s SUV. [See id.
at 72.] There was no evidence that showed marks on the road
caused by a vehicle other than [Appellant’s].

____________________________________________

5 The trial court reviewed the evidence in the context of Appellant’s challenge
to the verdict being against the weight of the evidence. This same evidence,
viewed in a light most favorable to the Commonwealth, also disproves
Appellant’s sufficiency claims. See Tejada, 107 A.3d at 792.

-9-
J-S29025-22

2 Trooper Jodon testified that, in his experience, yaw marks show
that a vehicle is traveling faster tha[n] what is required to safely
navigate a turn, causing the tires to jump and create friction with
the road. [See id. at 71.]

Moreover, the damage to [Appellant’s] vehicle was primarily on
the side of the vehicles, which corresponds with Trooper Jodon’s
version of events. [Id. at 99-100.] Lastly, and most importantly,
[Appellant] himself agreed that he was the one that lost control of
his vehicle and had to utilize several NASCAR maneuvers to regain
control. [Id. at 114-15.] During the trial, [the court] found Mr.
and Mrs. Bloom’s and Trooper Jodon’s testimony to be credible as
to the cause of the accident. Conversely, [the court] did not find
[Appellant’s] testimony about being hit from behind to be
credible[.]

Trial Court Opinion, 3/3/22, at 4-5 (footnote 2 in original, some capitalization

omitted, citations to Notes of Testimony added).

In summary, the evidence credited by the trial court established that

Appellant’s inebriation rendered him incapable of safely driving a vehicle in

violation of 75 Pa.C.S.A. § 3802(a)(1), and Appellant’s inebriation, not an

intervening factor, caused serious injuries to the accident victims in violation

of 75 Pa.C.S.A. § 3735.1(a). See Trial Court Opinion, 3/3/22, at 4-7. See

also Cahill, 95 A.3d at 300 (recognizing the factfinder is free to believe all,

part or none of the evidence). Consequently, Appellant’s first two issues fail.

In his third issue, Appellant specifically challenges the trial court’s failure

to consider his photographic evidence. Appellant’s Brief at 13. Specifically,

Appellant asserts the evidence was not “sufficient” to sustain his convictions,

and “the court did not properly review the evidence prior to rendering its

verdict.” Id. at 15. Appellant again relies on his “photographic evidence to

- 10 -
J-S29025-22

support the fact that an intervening force caused the accident, which led to”

his convictions. Id. According to Appellant, the trial court never reviewed the

photographs showing damage to the back of his vehicle. Id. Appellant

contends a “judgment of acquittal should be entered on all charges” because

the trial court never reviewed his photographs. Id.

Appellant seeks the remedy of acquittal, which is reserved for challenges

to sufficiency of the evidence. See Commonwealth v. Pond, 846 A.2d 699,

707 (Pa. Super. 2004) (recognizing if the evidence is insufficient to sustain

the verdict, the remedy is discharge of the appellant); Commonwealth v.

Merrick, 488 A.2d 1, 4 (Pa. Super. 1985) (“If the verdict was against the

weight of the evidence the only relief we may grant appellant is a new trial. If,

however, the evidence were insufficient to sustain the verdict, we are required

to discharge the appellant.”) (citations omitted). The trial court addressed

Appellant’s claim as challenging the weight of the evidence, not its sufficiency.

See Trial Court Opinion, 3/3/22, at 4-5. Accordingly, we review whether the

verdicts were against the weight of the evidence.

“An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Galvin,

985 A.2d 783, 793 (Pa. 2009) (citation omitted). “[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.

Miller, 172 A.3d 632, 643 (Pa. Super. 2017) (citation omitted).

- 11 -
J-S29025-22

[W]here 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. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012) (citation

omitted).

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.

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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and

emphasis omitted). “[T]he trier of fact while passing upon the credibility of

witnesses and the weight of the evidence produced, is free to believe all, part

- 12 -
J-S29025-22

or none of the evidence.” Commonwealth v. Andrulewicz, 911 A.2d 162,

165 (Pa. Super. 2006) (citation omitted).

As described above, the trial court addressed Appellant’s claim

challenging the weight of the evidence, and concluded it lacked merit. See

Trial Court Opinion, 3/3/22, at 4-5. Our review discloses the trial court

properly exercised its discretion in weighing the evidence and crediting the

testimony of Trooper Jodon and the Blooms. See id.; see also Andrulewicz,

911 A.2d at 165. Because we discern no abuse of discretion by the trial court,

Appellant’s third issue fails. See Shaffer, 40 A.3d at 1253.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2022

- 13 -