Opinion
J-S17025-16 No. 1135 WDA 2015
04-07-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. THOMAS C. ZELLER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 6, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000422-2013 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, JJ. MEMORANDUM BY SHOGAN, J.:
Former Justice specially assigned to the Superior Court.
Thomas C. Zeller ("Appellant") appeals nunc pro tunc from the judgment of sentence entered after he was found guilty of driving under the influence ("DUI"), 75 Pa.C.S. § 3802(a)(1), and a summary motor vehicle offense, 75 Pa.C.S. § 1301. Appellant challenges the denial of his Pa.R.Crim.P. 600 motion to dismiss, as well as the sufficiency and weight of the evidence supporting the DUI conviction. We affirm.
The trial court thoroughly set forth the facts of this case in its opinion denying Appellant's post-sentence motions, which also serves as the trial court's Pa.R.A.P. 1925(a) opinion to this Court. Trial Court Opinion, 6/8/15, at 1-9. In summary, two Scottdale police officers stopped Appellant for an outdated vehicle registration sticker at approximately 11:51 p.m. on November 5, 2012. N.T., 1/5-6/15, at 67-68, 99-100. Appellant "jumped out" of his van, approached the officers in a "deliberate but aggressive" manner, refused their commands to return to his vehicle, and screamed obscenities at the officers. Id. at 69-72, 101-104. After a "lengthy struggle" with Appellant involving a taser and pepper spray, the officers took Appellant into custody. Id. at 72-73, 104-110. During the struggle, the officers detected a strong odor of alcohol on Appellant's person. Id. at 74, 110. Based on the odor of alcohol, Appellant's belligerent and noncompliant demeanor, and his unintelligible comments, the officers formed the opinion that Appellant "was intoxicated to a degree which rendered him incapable of safe driving." Id. Once Appellant was in custody, the officers observed a beverage in a mason jar in the center console cup holder of his van; the beverage looked and smelled like beer. Id. at 78, 114. Appellant did not undergo field sobriety tests or consent to chemical testing. Id. at 75, 111-112.
Appellant was charged with DUI, aggravated assault, resisting arrest, and a summary motor vehicle offense. He filed a Pa.R.Crim.P. 600 motion to dismiss the charges on October 27, 2014. Following myriad delays, Appellant went to trial on January 5-6, 2015. Before trial commenced, the trial court conducted a hearing on Appellant's Rule 600 motion. After receiving testimony from the Westmoreland County Criminal Courts Administrator, the trial court denied the motion. N.T., 1/5-6/15, at 26. The jury convicted Appellant of DUI, and the trial court convicted him of the summary motor vehicle offense. Id. at 264, 266. Appellant waived a presentence investigation, and the trial court sentenced him to incarceration for a period of not less than seventy-two hours or more than six months. Id. at 272-273. Appellant filed post-sentence motions, which the trial court denied. This appeal followed. The trial court and Appellant have complied with Pa.R.A.P. 1925.
Appellant filed timely post-sentence motions, but the trial court did not rule on them within 120 days. Pa.R.Crim.P. 720(B)(3)(a). Therefore, the motions should have been denied by operation of law, and the clerk should have entered an order on behalf of the court and served a copy on the defendant. Id. at (B)(3)(a), (c). The clerk did not act accordingly. However, counsel filed a petition averring a calendaring error and requesting reinstatement of Appellant's appeal rights nunc pro tunc. Petition to Reinstate Appeal Rights, 7/20/15. The Commonwealth did not object, and the trial court granted Appellant's petition. Order, 7/20/15. Appellant filed his notice of appeal two days later. Therefore, we conclude that Appellant's appeal is timely filed and properly before us.
Appellant raises the following issues:
I. Did the Trial Court err in denying Appellant's Motion to Dismiss under Rule 600 Pennsylvania Rules of Criminal Procedure , where the prosecution failed to monitor the Rule 600 run date and well over 365 [days] passed from filing the complaint, even when all appropriate periods of delay are excluded?
II. Did the Trial Court err in allowing the jury to deliberate on the DUI charge because the evidence was insufficient as a matter of law to sustain the conviction beyond a reasonable doubt?
III. Did the Trial Court err in refusing to reverse the conviction at Count 1 and order a new trial because the jury's verdict of guilt[y] on DUI was against the weight of the evidence?Appellant's Brief at 4.
First, Appellant challenges the trial court's denial of his Rule 600 motion to dismiss. Appellant's Brief at 13. According to Appellant:
The most significant period of delay in the trial of this matter occurred between a call of the list on February 27, 2014 and the filing of [Appellant's] Rule 600 Motion [on] October [27,] 2014. Here, the record reflects that on February 27, 2014 a call of the list was scheduled at which [Appellant] failed to appear. He later presented himself to the Court on March 7, 2014 and the Court vacated the bench warrant and left the case on the trial list for the March trial term. Apparently the Court Administrator's Office did not get notice that the bench warrant was vacated. There was no evidence submitted that the District Attorney failed to receive notice.Id. at 14.
Trial Terms were held in May, July and September of 2014. Each trial term was preceded by a "call of the list" in the second half of the preceding month. Neither the Court Administrator, nor the District Attorney's Office listed the case for trial during this period. The Court Administrator's Office acknowledged that the District Attorney can request expedited listing of cases for trial. This was not done in the instant matter.
In support of his argument, Appellant relies on Commonwealth v. Sloan , 67 A.3d 1249 (Pa. Super. 2013), wherein we held that the Commonwealth failed to demonstrate due diligence when it relied on an arraignment clerk to schedule a conference to insure an initial trial date was set within the strictures of Rule 600. Sloan , 67 A.3d at 1254. We observed, however, that reliance on the arraignment clerk compounded the Commonwealth's own seven-month delay in filing an information against the defendant. Unlike Sloan , the case at hand does not involve any Commonwealth delay. Thus, we consider Appellant's reliance on Sloan to be misplaced.
In evaluating Rule 600 issues:
our standard of review of a trial court's decision is whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.Commonwealth v. Thompson , 93 A.3d 478, 486-487 (Pa. Super. 2014) (citations omitted).
The proper scope of review ... is limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court is not permitted to ignore the dual purpose behind Rule 600. Rule 600 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society's right to punish and deter crime. In considering these matters ..., courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well.
In the case at hand, the trial court concluded that the Commonwealth did not fail to exercise due diligence in bringing Appellant to trial. We agree. In doing so, we observe that the record supports the trial court's ruling. N.T., 1/5-6/15, at 26-29. Furthermore, we adopt as our own the opinion of the trial court. Trial Court Opinion, 6/8/15, at 16-24.
Next, Appellant complains that the Commonwealth's evidence of DUI was insufficient to establish that "his level of alcohol impairment was such as to render him incapable of safe driving." Appellant's Brief at 16. Appellant argues that the police officers did not present any evidence that he was incapable of safe driving. Specifically, Appellant states, "Although the police officers followed his vehicle for several blocks, they did not observe any erratic driving behavior. Id.
Our standard of review of a sufficiency claim is well settled:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that,
as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Mobley , 14 A.3d 887, 889-890 (Pa. Super. 2011 (quoting Commonwealth v. Mollett , 5 A.3d 291, 313 (Pa. Super. 2010) (internal quotations and citations omitted)).
Appellant was convicted of DUI pursuant to 75 Pa.C.S. section 3802(a)(1), which provides as follows:
(a) General impairment.--
As our Supreme Court has explained:(1) 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.
[S]ubsection 3802(a)(1) is an 'at the time of driving' offense, requiring that the Commonwealth prove the following elements: the accused was driving, operating, or in actual physical control of the movement of a vehicle during the time when he or she was rendered incapable of safely doing so due to the consumption of alcohol.Commonwealth v. Segida , 985 A.2d 871, 879 (Pa. 2009). With respect to the type, quantum, and quality of evidence required to prove a general impairment violation, section 3802(a)(1) is a general provision and provides no specific restraint upon the Commonwealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving. Commonwealth v. Teems , 74 A.3d 142, 145 (Pa. Super. 2013). The types of evidence that are relevant in determining whether an individual has violated subsection 3802(a)(1) include 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.Segida , 985 A.2d at 879 (emphasis supplied). Moreover:
[t]he 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.Id.; see also Teems , 74 A.3d at 145 (quoting Segida ). To the extent a motorist points to the lack of evidence of any erratic driving on his part, this Court has stated, "Evidence of erratic driving is not a necessary precursor to a finding of guilt under [section 3802(a)(1)]." Mobley , 14 A.3d at 890.
Here, the trial court concluded that the Commonwealth presented sufficient evidence to support the DUI conviction: The police officers observed Appellant drive for nine blocks despite the cruiser's flashing lights; when the officers stopped Appellant, he "jumped out" of his van and approached the officers, shouting obscenities, making incoherent remarks, and behaving combatively; the officers smelled alcohol emanating from Appellant's person; Appellant admitted he had come from a bar and had been drinking; and Appellant displayed signs of intoxication familiar to the police officers. The record supports the trial court's decision. N.T., 1/5-6/15, at 65-124. Therefore, we discern no bases upon which to disturb it. Additionally, we adopt the opinion of the trial court in disposing of this issue. Trial Court Opinion, 6/8/15, at 11-15.
Lastly, Appellant challenges the weight of the evidence supporting his DUI conviction:
The balance of factors typically relied upon by police in assessing a motorist's level of intoxication all pointed to [Appellant] being perfectly capable of safe driving. He committed no traffic offenses, did not drift about the traffic lanes, did not vary his speed or [do] anything else erratic. There was no testimony of slurred speech, glassy or blood-shot eyes, stagger gait, etc. A conscientious consideration of these matters should shock the Court that the jury would utterly ignore these factors weighing against a conclusion of guilt . . . .Appellant's Brief at 17-18.
The law pertaining to weight-of-the-evidence claims is well settled. The weight of 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. Commonwealth v. Forbes , 867 A.2d 1268, 1273-1274 (Pa. Super. 2005). 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. Commonwealth v. Bruce , 916 A.2d 657, 665 (Pa. Super. 2007). Rather, the role of the trial judge is to determine that, notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. Id. An appellate court's purview:
is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury 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.Commonwealth v. Knox , 50 A.3d 732, 738 (Pa. Super. 2012). An appellate court may not reverse a verdict unless it is so contrary to the evidence as to shock one's sense of justice. Forbes , 867 A.2d at 1273-1274.
In this case, the trial court concluded that the weight of the evidence supported the jury's verdict. We agree, adopting as our own the opinion of the trial court. Trial Court Opinion, 6/8/15, at 15-16.
In sum, we conclude that Appellant's issues warrant no relief and the well-reasoned opinion of the Honorable Rita Donovan Hathaway comprehensively discusses and properly disposes of the questions presented. Accordingly, we affirm on the basis of the trial court's opinion.
The parties are directed to attach a copy of the trial court's June 8, 2015 opinion to this decision in any future proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/7/2016
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