Com. v. Louk, B.

Superior Court of Pennsylvania

Com. v. Louk, B.

DecidedJune 10, 2021

Docket656 WDA 2020

StatusUnpublished

This text of Com. v. Louk, B. (Com. v. Louk, B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Louk, B., (Pa. Ct. App. 2021).

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Opinion

J-A09001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRIAN LOUK

Appellant No. 656 WDA 2020

Appeal from the Judgment of Sentence entered December 5, 2019 In the Court of Common Pleas of Greene County Criminal Division at No: CP-30-CR-0000212-2018

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: June 10, 2021

Appellant, Brian Louk, appeals from the judgment of sentence the

Greene County Court of Common Pleas imposed on December 5, 2019. On

appeal, Appellant challenges the sufficiency of the evidence, the weight of the

evidence, and the legality of the sentence. For the reasons explained below,

we vacate the judgment and remand for sentencing.

The trial court summarized the relevant background as follows:

A jury trial was held on September 25, 2019, and [Appellant] was convicted of driving under the influence of alcohol or controlled substance. The jury determined that [Appellant]’s driving conduct resulted in an accident which caused bodily injury, in violation of Title 75 Section 3802(a)(1). [Appellant] was acquitted on the charge of unauthorized use of an automobile or other vehicle in violation of Title 18 Section 3928(a).[FN 1]

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A09001-21

[FN1] After the return of the jury verdict, [the trial court] ruled on the summary offense[s] and found [Appellant] guilty of: Driving Without a License, first offen[s]e, . . . in violation of Title 75 Section 1501(a); recklessly driving, . . . , in violation of Title 75 Section 3736(a); Careless Driving, . . . ., in violation of Title 75 Section 3809(a).

On Saturday, April 21, 2018[,] at approximately 11:44 p.m., [Appellant] was operating a pick-up truck while under the influence of alcohol. The pick-up truck belonged to the victim[’]s friend, Deborah Phillips, and Ms. Phillips testified during the course of the trial that [Appellant] was not permitted to operate the vehicle, that she and [Appellant] were friends, and the vehicle was in [Appellant]’s possession.

The jury determined that [Appellant] was the driver of the vehicle and that he was accompanied by a passenger[,] Mr. Jobe. [Appellant]’s operation of the vehicle resulted in a one vehicle roll- over accident, where [Appellant] was pinned under the pick-up truck. [Appellant] was extricated by the fire department and taken to Ruby Memorial Hospital in West Virginia via medevac helicopter. Mr. Jobe was also ejected from the vehicle and was bleeding and injured as a result of the accident.

On December 5, 2019, [Appellant] was sentenced to a total sentence of not less that sixteen (16) months nor more than five (5) years, concurrent to his Westmoreland County Pennsylvania sentence.

Trial Court Post Sentence Motions Opinion, 6/1/20, at 1-2 (some footnotes

omitted).

In his post-sentence motion, Appellant raised three claims: sufficiency,

weight of the evidence, and legality of sentence. Regarding the first two

claims, Appellant argued that his conviction for DUI was not supported by

sufficient evidence and was against the weight of the evidence. Specifically,

Appellant argued that his conviction could not stand “due to the lack of

forensic evidence with regard to the blood inside the truck, the motivation of

Jobe (the passenger in the truck at the time of the crash), and various

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contradictions and/or discrepancies in witness testimony.” Trial Court Post

Sentence Motions Opinion, 6/1/20, at 4. Relying on the proper standards, the

trial court rejected both claims. Id. at 4-6.

Regarding the legality issue, Appellant argued that the trial court erred

in grading the instant offense as his fourth DUI offense. The trial court, relying

on the Commonwealth’s representations, denied relief. Id. at 6-11.

In his Rule 1925(b) statement, Appellant argued that the evidence in

support of his conviction was insufficient without explaining what element of

the crime the Commonwealth failed to prove. Appellant also challenged the

weight of the evidence, again without explaining what error or abuse the trial

court committed. Finally, Appellant argued that his sentence was illegal

because the instant DUI conviction constituted Appellant’s second or, at most,

his third offense. Statement of Matters Complained of on Appeal, 7/29/20, at

2.

In his brief to this Court, Appellant argues that there was no

“confirmatory” evidence that he was the driver of the vehicle involved in the

accident, and that, absent such evidence, the conviction was both

unsupported by sufficient evidence and was against the weight of the

evidence.

We review the sufficiency of the evidence claim as follows:

The standard we apply in reviewing the sufficiency of the evidence is 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. In applying the above test, we may not weigh

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the evidence and substitute our judgment for 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 finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

Close review of Appellant’s sufficiency argument reveals that Appellant

is not saying there was no evidence that he was the driver. He simply argues

that there was other testimony from Jobe, the passenger, that undermined

the Commonwealth’s thesis that Appellant was the driver.

In reality, this is a challenge to the weight of the evidence, not its

sufficiency. As noted by the trial court, questions of credibility and/or

inconsistencies in the testimony are the sole province of the jury. The jury

found that Appellant was the driver, and it is not for us to reweigh the

evidence. Additionally, in the context of a challenge to the sufficiency, the

evidence must be viewed in the light most favorable to the verdict winner, in

this case, the Commonwealth. Thus, Appellant’s claim is without merit.

Antidormi, supra.

Next, we review Appellant’s weight of the evidence claim. In doing so,

we apply the following standard:

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[O]ur role is not to consider the underlying question of whether the verdict was against the weight of the evidence. Rather, we are to decide if the trial court palpably abused its discretion when ruling on the weight claim. When doing so, we keep in mind that the initial determination regarding the weight of the evidence was for the factfinder.

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