J-A02004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ALAN J. NEALLY
Appellant No. 1055 MDA 2015
Appeal from the Judgment of Sentence April 23, 2015 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000972-2014
BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 17, 2016
Appellant, Alan J. Neally, appeals from the judgment of sentence
entered after the trial court convicted him of driving under the influence of
alcohol (“DUI”). Neally argues that the Commonwealth failed to present
sufficient evidence to establish that he had operated his motorcycle on the
night in question. After careful review, we affirm.
Neally was found late at night passed out on the side of a curve in the
road next to his motorcycle. The motorcycle had scratches on its left side,
and Neally had visible injuries to his left arm. After responding officers were
able to bring him to consciousness, Neally was sluggish and had slurred
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A02004-16
speech, along with a strong odor of alcohol on his breath. Officers
transported him to a local hospital, where Neally refused a blood test.
After a non-jury trial, the trial court found Neally guilty of DUI, general
impairment as well as driving under suspension. Neally filed post-sentence
motions challenging the sufficiency and weight of the evidence supporting
his convictions. The trial court subsequently denied Neally’s motions, and
this timely appeal followed.
On appeal, Neally once again raises challenges to the sufficiency and
the weight of the evidence. In both arguments, Neally focuses on the
Commonwealth’s burden to establish that he had operated his motorcycle.
Neally argues that the Commonwealth’s witnesses contradicted each other
regarding the condition of Neally’s motorcycle, and further, that they did not
find the motorcycle running, or even the keys to the motorcycle.
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
-2- J-A02004-16
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)
(citation omitted).
The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. See id. Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See id. As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,
584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d
at 661 (citation omitted).
Having reviewed the briefs of the parties and the certified record, we
conclude that the trial court opinion, authored by the Honorable Thomas R.
Campbell, fully and thoroughly addresses this argument. See Trial Court
Opinion, 8/17/15, at 1-12 (finding that the evidence was sufficient to
establish that Neally had been involved in a low speed, single vehicle
accident, and that his location, inconsistent statements, and the absence of
the claimed third-party driver were sufficient circumstantial evidence that he
had operated the motorcycle while intoxicated). We therefore affirm on this
basis.
Turning to Neally’s weight of the evidence claim, we observe the
following standard of review. A challenge to the weight of the evidence
-3- J-A02004-16
“concedes that the evidence is sufficient to sustain the verdict, but seeks a
new trial on the ground that the evidence was so one-sided or so weighted
in favor of acquittal that a guilty verdict shocks one's sense of justice.”
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014) (citation omitted).
When the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court’s decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review. Moreover, where 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. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
quotes and citations omitted).
Having reviewed the briefs of the parties and the certified record, we
conclude that the Honorable Thomas R. Campbell’s opinion ably and
comprehensively disposes of Neally’s weight claim. We discern no abuse of
discretion in his reasoning, and therefore affirm based on that opinion. See
Trial Court Opinion, 8/7/15, at 12-14.
Judgment of sentence affirmed.
-4- J-A02004-16
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/17/2016
-5- Circulated 04/21/2016 01:52 PM
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA ti . • ,, ' j'J,);/ . vs. •' . "I
OPINION PURSUANT TO Pa. R.A.P. 1925(a)
Appellant, Alan J. Neally, appeals from this Court's March 24, 2015 verdict of
guilty, following a non-jury trial, to driving under the influence of alcohol ("DUI"), general
impairment under 75 Pa. C.S. § 3802(a)(1), with implied consent refusal as a second
offense for sentencing purposes, as well as his conviction for driving under suspension
in violation of Section 1543(a) of the Pennsylvania Motor Vehicle Code as a summary
offense. Appellant filed Notice of Appeal on June 18, 2015. Appellant filed a Concise
Statement of Matters Complained of on Appeal on July 9, 2015.1
On April 23, 2015, Appellant was sentenced on Count 1 to a period of
incarceration of no less than 90 days nor more than 6 months partial confinement at the
Adams County Adult Correctional Complex. On Count 2 Defendant was sentenced to
pay a fine. On April 30, 2015, Appellant filed a post-sentence motion in arrest of
judgment claiming the evidence produced was insufficient as a matter of law to sustain
a conviction for Count 1, DUI general impairment and alternatively claimed that the
verdict was against the greater weight of the evidence. On May 26, 2915, after
argument on Appellant's post-sentence motions and upon review of legal authority
submitted by both the Commonwealth and Defense, this Court denied the post-
I The Concise Statement was not served on the undersigned's Chambers despite the representation on Appellant's Certificate of Service. The undersigned first obtained the Concise Statement from the Clerk's file on approximately July 15, 2015.
1 sentence motion. On June 17, 2015, Appellant filed a notice of appeal. On July 9,
2015, Appellant filed a concise statement of matters complained of on appeal pursuant
to Pa. R.A.P. 1925(b), identifying the following two issues for consideration: (1) whether
the evidence presented at trial was insufficient as a matter of law to support a finding of
guilt beyond a reasonable doubt on the charge of driving under the influence. More
specifically, whether the Commonwealth presented sufficient evidence to establish that
Appellant drove, operated, or was in actual physical possession and control of the
movement of a motor vehicle, and (2) in the alternative, whether the finding of guilt as to
the charge of driving under the influence was against the weight of the evidence. More
specifically the conclusion that Appellant, drove, operated, or was in actual physical
control of a motor vehicle was against the weight of the evidence.
The non-jury trial, held March 24, 2015, revealed the following facts. On the
weekend of July 12, 2014, Appellant, Alan Neally was visiting Gettysburg, Pennsylvania
from his home in New York with several friends. They traveled to Gettysburg to
participate in the Annual Bike Week-Gettysburg Festivities. Appellant "rode" his own
bike to Gettysburg for Bike Week while his friend, Evan DelGrosso "rode" his own bike
here for that same event.
Shortly after midnight on July 12, 2014, Joann Smith was driving from her home
in Biglerville, Pennsylvania to the hospital in Gettysburg along State Route 34, also
. known as the Biglerville Road. As Ms. Smith passed by a carwash on the left hand side
of the Biglerville Road, where the road turns to the right heading into Gettysburg, out of
.the corner of her eye she quickly saw a person lying over the curb along the roadway
and a motorcycle. This caused Ms. Smith to turn around and come back to see if the
2 person was injured. She observed a man with his legs down over the curb and his back
lying along the middle of the curb with his head in the carwash area. The person's legs
were dangling toward the side of the road. With regard to the motorcycle, she saw only
the handlebars as she initially drove past which is what caused her to think something
was amiss with the situation. Ms. Smith observed Appellant lying just several feet from
the motorcycle. Upon turning around and coming back to the parking lot of the
carwash, Ms. Smith did not observe any other people in that general area so she called
911. Ms. Smith believed the individual was intoxicated but for her own personal safety
did not get out of the vehicle or approach the location where the man was lying near his
motorcycle.
In the early morning hours of July 12, 2014, Sergeant Griffiths along with his
Chief Michael Weigand were on duty with the Latimore Township Motorcycle Unit
assisting the Cumberland Township Police Department with their motor units during
Bike Week Festivities. Sergeant Griffiths has over 50 years of experience operating
motorcycles as well as previous training as an emergency medical technician.
Sergeant Griffiths is part of a special motorcycle unit within the Latimore
Township Police Department, specifically the "Motor Unit."
On the evening in question Sergeant Griffiths and his Chief were on their way
back to their home jurisdiction after concluding their day of work, when they heard a
dispatch about a motorcycle accident in the area of Biglerville Road and Table Rock
Road. Sergeant Griffiths and Chief Weigand were close to that location and proceeded
directly to the scene of the accident. Upon approaching the scene, Sergeant Griffiths
observed the motorcycle facing southbound along the northbound lane lying on its left
3 side. He also observed an individual lying on the curb barrier along the side of the
parking lot of the carwash with his back facing the motorcycle. Sergeant Griffiths
identified Appellant as the person he saw lying along the side of the road in close
proximity to the motorcycle. According to Sergeant Griffiths, in that particular area of Biglerville Road, near the carwash, there is a slight curve in the roadway with the
northbound lane of State Route 34 bearing to the left and the southbound lane curving
toward the right. There is also a concrete curb separating the carwash from the median
of the Biglerville Road, along the northboundlane.
As Sergeant Griffiths approached Appellant, he was unresponsive. Out of
concern for Appellant's safety as well as others potentially in the vicinity, Sergeant
Griffiths tried to wake Appellant utilizing an emergency medical stimulus technique
known as a "sternum rub." Sergeant Griffiths was able to get Appellant responsive and
awake enough to communicate generally with him. Appellant was mumbling and
initially incoherent in his responses. Once Appellant became responsive Sergeant
Griffiths immediately noticed signs of alcohol intoxication and a strong odor of alcohol
on his breath along with watery and bloodshot eyes.
Upon further examination of the scene Officer Griffiths saw damage to the rear of
the motorcycle, specifically to the saddlebag area of the left-hand side. According to
Sergeant Griffiths, the scrape marks and damage to the motorcycle made it appear that
the "bike had gone down'' on the left side. Sergeant Griffiths also observed gouge (,
marks on the blacktop going from the southbound lane across the northbound lane with
the scrape continuing onto the concrete curb. Sergeant Griffiths noticed the gouge
marks were fresh and continuedto the concrete curb where the bike struck and came to
4 rest. Finally, Sergeant Griffiths testified that based on his 50 years of experience with
motorcycles, it is common for individuals driving or operating a motorcycle to say that he
is "riding his motorcycle" or "riding the motorcycle."
The Commonwealth also presented the testimony of Lacy Warner, an
Emergency Medical Technician, who responded to the scene of the accident. Upon her
arrival, EMT Warner noticed several police cars at the intersection of Biglerville Road
and Table Rock Road in the area of the carwash. She also observed a motorcycle lying
on its left side facing southbound in the northbound lane on the Biglerville Road, facing
Gettysburg. She noticed minor damage to the left side of the motorcycle. EMT Warner
also observed a gentleman, later identified as Appellant, sitting next to the motorcycle
on the curb. By the time she interacted with him he was able to walk around and get
himself into the back of the ambulance with the EMTs and without assistance. During
EMT Warner's assessment of Appellant he informed her that he had been drinking a lot
of alcohol. Appellant then told EMT Warner that he was not operating the motorcycle.
Appellant could not name any of the friends he claimed to be with or identify who was
operating the motorcycle.
EMT Warner's physical assessment of Appellant revealed minor abrasions to his
left arm and elbow which were slightly open and abrased, but without significant
bleeding. EMT Warner had responded previously to multiple motorcycle crashes and
testified that the injuries she observed to Appellant's left arm (which were also on the
same side as the damage observed on the bike) were consistent with injuries caused in
a motorcycle crash. According to EMT Warner, it appeared that the accident was of the
5 type where the rider "laid down their bike." Her testimony was consistent with Sergeant
Griffiths testimony which indicated that it was not a serious motorcycle accident.
Also responding to the scene and testifying for the Commonwealth was Officer
Daniel Barbagello, a nine (9) year veteran of the Cumberland Township Police
Department. Upon arriving at the scene and making contact with Appellant, Officer
Barbagello observed classic signs of intoxication. Officer Barbagello also noticed minor
injuries on the left side of Appellant's body, mainly on his arm and elbow areas. Officer
Barbagello did not observe any other individuals, besides law enforcement and
emergency personnel, with the Appellant or in the vicinity of the accident. Officer
Barbagello engaged Appellant in conversation and Appellant informed Officer
Barbagello that it was his motorcycle. According to Officer Barbagello the motorcycle
was a black Harley Davidson with New York registration in Appellant's name. When
Officer Barbagello asked Appellant if he was driving, Appellant then broke eye contact
with him and looked straight ahead and responded no, he was "riding." Upon further
questioning, Officer Barbagello asked Appellant if he was operating his motorcycle to
which Appellant respondedthat he was riding with twelve other people and "he got lost."
Again, Appellant's responsewhen asked if he was driving was that he was "riding" the
bike. At no time did Appellant indicate to Officer Barbagello who was operating his
Based upon all of his observations Officer Barbagello placed Appellant under
arrest for driving under the influence of alcohol, transported Appellant to Gettysburg
6 Hospital for a blood draw. Upon arrival at Gettysburg Hospital, Officer Barbagello read
Appellant his DL-26 implied consent warnings and Appellant refused chemical testing.2
The only witness called by Appellant, in his defense, was his friend, Evan
DelGrosso, who had travelled with him and several other people from New York to Bike
Week in Gettysburg over the weekend of July 12, 2014. According to DelGrosso,
throughout the day of July 11, 2014, DelGrosso and Appellant along with a group of
people were together at various different places throughout the greater Gettysburg area,
ultimately ending up at a bar in Gettysburg identified by DelGrosso as the "Flying
sornethinq.f According to DelGrosso he left that bar around 10:00 or 11 :00 p.m. on
July 11, 2014, and returned to his hotel at the Econo Lodge, which is adjacent to the
Hilton Hotel where Appellant was staying. According to DelG'rosso, sometime later
Appellant called him stating he needed a ride home, and DelGrosso went with another
friend back into town to pick him up.
De!Grosso claimed that after getting Appellant, DelGrosso was operating
Appellant's motorcycle back toward the hotel when the spring on the bike's kickstand
began dragging on the ground causing De!Grosso to pull over. DelGrosso decided to
leave the motorcycle along with Appellant, go back to the hotel in order to get his truck
and trailer to return to get the bike. DelGrosso further claimed he returned to his hotel
on the back of the motorcycle of Josh LeBarron, the friend who brought him back into
2 Appellant also previously refused further medical treatment from the EMT's on the scene. 3 The Court notes that the establishment referenced by Mr. De!Grosso is one block off the center square in downtown Gettysburg and is known as the Flying Bull. It is located on Carlisle Street (S.R. 34) just one block north of the Gettysburg Square.
7 town to pick up Appellant. By the time DelGrosso returned to the hotel he had a
number of missed calls from Appellant informing him that the police had shown up.4
On cross examination, DelGrosso testified that he and Josh LeBarron were
sober, but decided to leave their highly intoxicated friend alone with the motorcycle on
the side of the road while they allegedly returned to the hotel to retrieve a truck and a
trailer. Interestingly DelGrosso testified they were traveling northbound on the
Biglerville Road supposedly toward their hotel, the Econo Lodge and the Hilton Hotel.
However, both the Econo Lodge and the Hilton Hotel are located on State Route 30
East of Gettysburg, in the opposite direction.5 When questioned, DelGrosso could not
provide any description of any landmarks or businesses, such as a carwash, in the area
where he and LeBarron allegedly left Appellant.
Following the non-jury trial this Court found Appellant guilty of DUI general
impairment under Section 3802(a)(1) of the Pennsylvania Motor Vehicle Code as a
second offense6 with implied consent refusal. This Court also found Appellant guilty of
the summary charge of driving under suspension in violation of Section 1543(a) of the
Pennsylvania Motor Vehicle Code.
Appellant's first contention is that his DUI conviction was not supported by
sufficient evidence at trial. A claim impugning the sufficiency of the evidence presents
4 No testimony was proffered that Mr. Del Grosso returned to the scene where he had left Appellant in order to clarify for police that he was the operator of the motorcycle or the facts recited by Mr. DelGrosso at trial. In fact Mr. DelGrosso never reported his claims to being the operator of the motorcycle and having left Appellant at that location to police at any time prior to trial. 5 No explanation was provided by DelGrosso as to why if he allegedly came from the hotel areas where he was staying back into town to pick up Appellant at the bar why he did not return to the hotel the same way, but instead headed in the completely wrong direction on a different road from which he traveled from the hotel to the bar. 6 The parties stipulated prior to trial to Appellant's prior DUI conviction from June 18, 2014 out of the State of New York.
8 Appellate Courts with a question of law. Commonwealth v. Widmer, 560 Pa. 308, 744
A.2d 745, 751 (2000). An Appellate Court's standard of review is well established:
The standard to be applied by an appellate court in reviewing the sufficiency of the evidenceis 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, the appellate court may not weigh the evidence and substitute its judgment for the fact- finder. In addition,... 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)(citations omitted).
Further, this standard is equally applicable to cases where the evidence is
circumstantial rather than direct, so long as the combination of the evidence links the
accused to the crime beyond a reasonabledoubt. Id. Citing, Commonwealth v.
Sanders, 627 A.2d 183, 185 (Pa. Super. 1993). Finally, although a conviction must be
based on more than mere suspicion or conjecture, the Commonwealthneed not
establish guilt to a mathematical certainty. id. Citing, Commonwealth v. Gainer, 7
A.3d 291, 292 (Pa. Super. 2010).
The combination of evidence presented by the Commonwealthduring Appellant's
non-jury trial was sufficient to satisfy the Commonwealth'sburden of proof as to each
element of DUI-general impairmentbeyond a reasonable doubt. To sustain a conviction
for driving under the influence of general impairment the Commonwealthmust prove the
9 following beyond a reasonable doubt: defendant was driving, operating 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 control of the movement of the vehicle. 75 Pa. C.S.A. §
3802(a)(1 ). Here Appellant contends that the Commonwealth failed to meet its burden
of proving that he drove, operated or was in actual physical control of the movement of
the motorcycle in question.
The evidence at trial showed that Appellant was found intoxicated, to the point of
being essentially unresponsive, just a few feet away from a motorcycle owned by him.
Appellant had traveled from New York on that motorcycle the day prior to the incident in
question. Examination of the scene showed fresh gauge marks in the roadway leading
from the southbound lane across the northbound lane into the concrete curb where the
motorcycle came to rest on the side of a public roadway. There was scraping damage
to the left side of the Appellant's motorcycle and Appellant had injuries on his left arm
and elbow consistent with the motorcycle having been laid down. The physical damage
to the road, motorcycle and Appellant's body were consistent not with a high speed
motorcycle crash, but rather an accident where the motorcycle was laid on its side in an
area where there was a curve in the road. The motorcycle at the scene was registered
to the Appellant and no other people were on scene with Appellant at any time.
Appellant gave inconsistent statements to the police and emergency personnel and was
unable to name the person he claimed to have been operating his motorcycle.
Appellant consistently said he was "riding" his bike which is common jargon among
motorcycle enthusiasts for driving or operating the motorcycle.
10 Finally, the testimony of the only witness presented by Appellant is severely
lacking in credibility and was disregarded by the undersigned as being wholly
unbelievable. According to DelGrosso, he and another friend, Josh LeBarron, upon
receiving a call from Appellant traveled from their hotels located several miles east of
Gettysburg on State Route 3·0 into the center square where the Flying Bull Saloon is
generally located, to retrieve Appellant. DelGrosso claimed to be operating Appellant's
motorcycle when attempting to return to the hotels with appellant. Importantly,
Del Grosso claimed that he and Le Barron left a highly intoxicated friend, Appellant, at
the scene where he was subsequently located by the witness and police because the
kickstand was broken and dragging on the roadway, while he and LeBarron proceeded
back to the hotel to retrieve a truck and trailer. The unreliability of DelGrosso's
testimony is illustrated by the route De!Grosso claims he took once picking up Appellant
for his return to the hotel. By traveling northbound on the Biglerville Road he went in
entirely the wrong direction to return to the hotels from the Flying Bull Saloon.
Travelling north on the Biglerville Road is the wrong direction for a person to return to
the Hilton or Econo Lodge Hotels which are located on Route 30, East of Gettysburg.
Further discrediting DelGrosso's testimony is the fact that he could not provide any
description of any landmarks, business, buildings or structures or of the location where
he allegedly left Appellant in a highly intoxicated state with his motorcycle. Finally,
DelGrosso could not provide any explanation for the injuries to Appellant's left arm and
elbow or the damages to the left side of Appellant's motorcycle or the fresh gauge
marks on the Biglerville Road leading toward the concrete curb along which Appellant's
motorcycle was found.
11 In reviewing all of the evidence in the light most favorable to the Commonwealth
and after disregarding, in its entirety, the testimony of Evan DelGrosso, the evidence
was sufficient to prove beyond a reasonable doubt that Appellant was driving his
motorcycle, was involved in a minor motorcycle accident whereby he laid the motorcycle
on its side trying to negotiate a curve in the road thereby suffering minor injuries to his
left arm and elbow which were consistent with the damage to the motorcycle .
. Based upon the entirety of the record and evidence presented, when viewed in
the light most favorable to the Commonwealth as verdict winner, the Commonwealth
clearly presented sufficient evidence to show that Appellant drove or operated his
motorcycle after consuming an amount of alcohol which rendered him incapable of safe
driving. Consequently, Appellant's conviction for DUI, general impairment was
supported by sufficient evidence at trial.
Turning next to Appellant's claim that the verdict was against the weight of the
evidence, it is noted that such a claim is originally addressed to the sound discretion of
the trial court. Commonwealth v. Landis, 89 A.3d 694 (Pa. Super. 2014). See also,
Widmer, 744 A.2d at 751-52. Further, a new trial should not be granted because of a
mere conflict in the testimony or because another judge on the same facts would have
arrived at a different conclusion. Id. Rather, the role of the trial judge is to determine
that "notwithstanding all of 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. Citing,
Widmer at 751. A motion for a new trial on the grounds that the evidence is contrary to
the weight of the evidence concedes that there is sufficient evidence to sustain the
conviction .. Landis at 699. Further, a new trial should be awarded only when the jury's
12 verdict is so contrary to the evidence as to shock ones sense of justice.
Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994).
A review of a weight of evidence claim is a review of the exercise of discretion
[by the trial court), not of the underlying question of whether the verdict is against the
weight of the evidence. Ariltdormi, 84 A.3d at 758 (citing, Brown, 648 A.2d at 1189).
Because the trial judge has the opportunity to hear and see the evidence presented, an
appellate court gives the gravest consideration to the findings and reasons advanced by
the trial judge when reviewing a trial court's determination as to whether the verdict is
against the weight of the evidence. Id. (citations omitted). One of the least assailable
reasons for granting or denying a new trial is the lower court's conviction that the verdict
was not against the weight of the evidence. Widmell', 7 44 A.2d at 753 (internal citations
omitted).
As noted, Supra., the weight of the evidence presented by the Commonwealth,
with regard to Appellant's driving and operating a motorcycle at the time and place in
question while under the influence of alcohol to a degree which rendered him incapable
of safe driving, is essentially unrebutted. The only witness called by Appellant proffered
testimony that was illogical and unbelievable and as a result was disregarded in its
entirety by this Court. This Court's finding of guilt with regard to the driving under the
influence, general impairment charge is not so contrary to the evidence as to shock
ones sense of justice. Accordingly, there has been no abuse of discretion with regard to
that finding. As described above, the virtually uncontroverted evidence at trial showed
that Appellant operated his motorcycle after consuming an amount of alcohol which
rendered him incapable to safe driving. Beyond the illogical and unbelievable testimony
13 of Evan DelGrosso, Appellant did not present any evidence which contradicted the
physical evidence at the scene and the credible testimony of the Commonwealth's
witnesses. Accordingly, Appellant's contention that this Court's verdict was against the
weight of the evidence is meritless.
For all the reasons stated herein, it is respectfully requested that Appellant's
convictions and judgment of sentence imposed be affirmed.
BY THE COURT:
DATE: August 17, 2015 ~rzcl&-- THOMAS R. CAMPBELL Judge