The opinion
J-A22035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHAN RICHARD WILSON,
Appellant No. 2117 MDA 2014
Appeal from the Judgment of Sentence August 4, 2014
in the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0004392-2013
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2015
Appellant, Nathan Richard Wilson, appeals from the judgment of
sentence imposed after his conviction, following a jury trial, of driving under
the influence (DUI) (general impairment), second offense; DUI (controlled
substance), second offense; DUI (controlled substance combination alcohol
and drug), second offense; failure to obey traffic control devices; and
endangering the welfare of a child.1 We affirm.
We take the following facts and procedural history from the trial
court’s February 6, 2015 opinion and our own independent review of the
record. On May 6, 2013, at approximately 11:40 p.m., Penn Township
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a)(1), (d)(2), (3), 3111(a), and 18 Pa.C.S.A. §
4304(a)(1), respectively.
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Police Officer Joseph O’Brien initiated a traffic stop when a gray Toyota
Camry made an illegal left turn and ignored “Do Not Enter” and “No Left
Turn” signs. Once Officer O’Brien stopped the vehicle, Appellant, the driver,
stumbled and almost fell out of it. Officer O’Brien ordered Appellant back
into the car. Upon approaching, Officer O’Brien detected an odor of alcohol,
and observed a female passenger in the front seat and an infant in a car
seat in the rear. Appellant exhibited slow and slurred speech, his eyes
seemed heavy, he admitted to consuming beer earlier in the evening, and he
performed poorly on field sobriety tests. Penn Township Police Sergeant
Jedadiah Shearer arrived on the scene and conducted the Romberg balance
test on Appellant. Sergeant Shearer believed that Appellant was on a
depressant.
The police arrested Appellant and transported him to Hanover General
Hospital for a blood draw. After receiving Miranda2 warnings, Appellant
admitted to taking several pills: Aleve; Xanax; and an unknown yellow pill,
later determined to be headache medicine. He remained silent for over ten
minutes and then refused to have his blood drawn.
On July 25, 2013, the Commonwealth filed an information charging
Appellant with failing to obey traffic control devices, endangering the welfare
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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of a child, and three counts of DUI. Appellant’s first jury trial resulted in a
mistrial on March 7, 2014.
On June 5, 2014, another jury convicted Appellant of all five counts
and the trial court ordered a pre-sentence investigation. On August 4, 2014,
the court sentenced Appellant to an aggregate term of not less than six
months’ nor more than twelve months’ incarceration, a $2,500.00 fine, and
one hundred hours of community service.3 Appellant timely filed post-
sentence motions on August 6, 2014.
The court denied all but one of Appellant’s post-sentence motions on
September 26, 2014.4 On December 12, 2014, Appellant requested an
order denying the remaining post-sentence motion and filed a notice of
appeal. On December 18, 2014, the court denied the remaining post-
sentence motion by operation of law and ordered Appellant to file a Rule
1925(b) statement.5
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3
The court originally sentenced Appellant on July 29, 2014. (See N.T.
Sentence, 7/29/14, at 8-9). On August 4, 2014, at the Commonwealth’s
request, the court amended the sentence to merge the sentences for counts
one (DUI: general impairment) and four (DUI: controlled substance) into the
sentence for count five (DUI: controlled substance combination alcohol and
drug). (See Motion to Amend Sentence, 8/01/14; Order, 8/04/14).
4
The court denied Appellant’s post-sentence motions on weight and
sufficiency of the evidence; and took under advisement endangering welfare
of a child. (See N.T. Post-Sentence Motion, 9/26/14, at 5-6).
5
Appellant filed his notice of appeal while his post-sentence motion was
pending. However, because the court subsequently entered the final order,
(Footnote Continued Next Page)
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Appellant timely filed his Rule 1925(b) statement on January 8, 2015.
See Pa.R.A.P. 1925(b). The court entered its Rule 1925(a) opinion on
February 6, 2015. See Pa.R.A.P. 1925(a).
Appellant raises the following questions for our review:
1. Did the Commonwealth, as a matter of law, provide
insufficient evidence to meet its burden of proof in regard to
Count 3—Endangering the Welfare of Children where [Appellant]
did not exhibit unsafe driving as the only violation committed
was one that Sergeant Shearer had observed from several other
unimpaired motorists, and the Commonwealth could not
establish any other tangible indicia of unsafe driving that would
have violated a duty of care or created a substantial risk of
injury to the child who was fastened in a child’s safety seat in
the rear of the car[?]
2. Whether the trial court’s verdict of guilt as to Count 3—
Endangering the Welfare of Children was against the weight of
the evidence as [Appellant] had the child in a car safety seat,
drove in an unimpaired manner, and neither officer could qualify
how [Appellant] was impaired due to alcohol alone, a drug or
combination of drugs, or alcohol and a drug or combination of
drugs[?]
3. Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A.
§3802(a)(1)—DUI: General Impairment was against the weight
of the evidence as the [o]fficers were unable to link any
observations of unsafe driving to [Appellant] and the
Commonwealth’s evidence did not establish that [Appellant’s]
mental and physical faculties were impaired by alcohol to such a
degree that he could not safely operate a motor vehicle[?]
4. Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A.
§3802(d)(2)—DUI: Controlled Substance—Impaired Ability was
against the weight of the evidence as the [o]fficers were unable
_______________________
(Footnote Continued)
the notice of appeal is deemed filed on the same date as the final order.
See Pa.R.A.P. 905(a).
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to link any observations of unsafe driving to [Appellant] and the
Commonwealth’s evidence did not establish that [Appellant’s]
mental and physical faculties were impaired by a drug or
combination of drugs to such a degree that he could not safely
operate a motor vehicle[?]
5. Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A.
§3802(d)(3)—DUI: Controlled Substance—Combination of
Alcohol and a Drug or Combination of Drugs was against the
weight of the evidence as the [o]fficers were unable to link any
observations of unsafe driving to [Appellant] and the
Commonwealth’s evidence did not establish that [Appellant’s]
mental and physical faculties were impaired by alcohol and a
drug or combination of drugs to such a degree that he could not
safely operate a motor vehicle[?]
(Appellant’s Brief, at 1-2).
In his first issue, Appellant challenges the sufficiency of the evidence
to sustain an endangering the welfare of a child conviction. (See id. at 28-
39). He argues that “[w]ithout first establishing any evidence of
impairment, the Commonwealth could not possibly have met its burden . . .
[and] wishes to impose liability upon [him] based solely upon the fact that
he was driving while intoxicated.” (Id. at 29). Further, he “suggests that a
defendant does not automatically endanger a child knowingly when [he]
operate[s] a vehicle under the influence of an intoxicating beverage without
more.” (Id. at 37). We disagree.
It is well-settled that:
In challenges to the sufficiency of the evidence, our
standard of review is de novo, however, our scope of review is
limited to considering the evidence of record, and all reasonable
inferences arising therefrom, viewed in the light most favorable
to the Commonwealth as the verdict winner. Evidence is
sufficient if it can support every element of the crime charged
beyond a reasonable doubt. The evidence does not need to
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disprove every possibility of innocence, and doubts as to guilt,
the credibility of witnesses, and the weight of the evidence are
for the fact-finder to decide. 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.
Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (citations
and quotation marks omitted).
As charged in this case, “[a] parent, guardian or other person
supervising the welfare of a child under 18 years of age . . . commits an
offense if he knowingly endangers the welfare of the child by violating a duty
of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).
The statute does not require the actual infliction of
physical injury. Nor does it state a requirement that the child or
children be in imminent threat of physical harm. Rather it is the
awareness by the accused that [his] violation of [his] duty of
care, protection and support is practically certain to result in the
endangerment to [the] children’s welfare, which is proscribed by
the statute.
Further, a person must take affirmative, reasonable steps
to protect the child:
The affirmative performance required by
[Section] 4304 cannot be met simply by showing any
step at all toward preventing harm, however
incomplete or ineffectual. An act which will negate
intent is not necessarily one which will provide a
successful outcome. However, the person charged
with the duty of care is required to take steps that
are reasonably calculated to achieve success.
Otherwise, the meaning of the duty of care is
eviscerated.
Commonwealth v. Winger, 957 A.2d 325, 329-30 (Pa. Super. 2008)
(citations and quotation mark omitted; emphasis in original). The Court in
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Winger found a grossly intoxicated driver properly charged with
endangering the welfare of a child where a car seat secured the child and
there was no evidence of erratic driving. See id. at 331.
Here, Officer O’Brien initiated a traffic stop when Appellant made an
illegal left turn and ignored “Do Not Enter” and “No Left Turn” signs. (N.T.
Trial, 6/05/14, at 67; see id. at 69-70). Appellant stumbled and almost fell
out of the vehicle when Officer O’Brien ordered him back into the car. (See
id. at 71). Officer O’Brien detected an odor of alcohol and observed an
infant in a car seat. (See id. at 72). Appellant exhibited slow and slurred
speech, his eyes seemed heavy, he admitted to consuming beer earlier in
the evening, and he performed poorly on field sobriety tests. (See id. at 72,
76-77). Sergeant Shearer conducted the Romberg balance test on Appellant
and believed that he was on a depressant. (See id. at 129-30). Appellant
admitted to taking several pills: Aleve; Xanax; and an unknown yellow pill,
later determined to be headache medicine. (See id. at 83-84, 131).
Accordingly, viewing the evidence in the light most favorable to the
Commonwealth, we conclude that it was sufficient to sustain the jury’s
conviction of endangering the welfare of a child. See Forrey, supra at 897;
Winger, supra at 329-30.
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In his remaining four issues, Appellant challenges the weight of the
evidence. (See Appellant’s Brief, at 39-48).6 These issues lack merit.
Our standard of review is well-settled:
The weight given to trial evidence is a choice for the
factfinder. If the factfinder returns a guilty verdict, and if a
criminal defendant then files a motion for a new trial on the
basis that the verdict was against the weight of the evidence, a
trial court is not to grant relief unless the verdict is so contrary
to the evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
not that decision is the one we might have made in the first
instance.
Moreover, when evaluating a trial court’s ruling, we keep
in mind that an abuse of discretion is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will,
manifest unreasonableness or a misapplication of the law. By
contrast, a proper exercise of discretion conforms to the law and
is based on the facts of record.
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6
We note that in his second issue, Appellant states he “believes that the
established case law clearly goes to the sufficiency of the evidence.
However, out of an abundance of caution he argues in the alternative that
the verdict was against the greater weight of the evidence.” (Appellant’s
Brief, at 39). In his third, fourth, and fifth issues, Appellant argues
sufficiency rather than weight. (See id. at 40-48).
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. . . [W]e note that the jury is free to believe all, part, or
none of the evidence and to determine the credibility of the
witnesses. . . .
Commonwealth v. Ferguson, 107 A.3d 206, 212-13 (Pa. Super. 2015)
(citations and quotation marks omitted).
In his second issue, Appellant claims that “[t]he trial court’s verdict of
guilt was against the weight of the evidence because the Commonwealth did
not establish that [he] [e]ndangered the [w]elfare of a [c]hild.” (Appellant’s
Brief, at 39). Specifically, he argues that “[t]he [] only support for this
offense was that [he] was charged with DUI while a minor was . . . properly
fastened in a child’s safety seat . . . [and] there was nothing to suggest
erratic or reckless driving.” (Id.). We disagree.
As previously discussed, endangering the welfare of a child does not
require evidence of erratic driving. See Winger, supra at 329-30.
Moreover, our independent review of the record reflects that there was
ample evidence for the jury to convict Appellant of endangering the welfare
of a child.
Accordingly, we discern no abuse of discretion in the trial court’s
determination that the jury’s verdict did not shock one’s sense of justice.
See Ferguson, supra at 212-13. Therefore, Appellant’s second issue lacks
merit.
In his third, fourth, and fifth issues, Appellant claims that his
convictions of DUI were against the weight of the evidence because the
evidence did not establish that his mental and physical faculties were
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impaired to prevent him from safely operating a motor vehicle. (See
Appellant’s Brief, at 40-48). Specifically, he asserts there was a “lack of
sufficiently articulating any link between the observations and perceptions
Officer O’Brien and Sergeant Shearer made to [Appellant’s] impairment.”
(Id. at 42; see id. at 43, 46). We disagree.
Our independent review of the record reflects that Officer O’Brien
observed Appellant disregard traffic signs and make an illegal left turn, (see
N.T. Trial, 6/05/14, at 67, 69-70), and “stumble[], almost [fall] out of the
car[.]” (Id. at 71). Both Officer O’Brien and Sergeant Shearer testified
about Appellant’s poor performance on field sobriety tests, and their
observations of his slow and slurred speech, and heavy eyes. (See id. at
71, 76-77, 128-30). Therefore, there was ample evidence for the jury to
convict Appellant of three counts of DUI.
Accordingly, we discern no abuse of discretion in the trial court’s
determination that the jury’s verdict did not shock one’s sense of justice.
See Ferguson, supra at 212-13. Therefore, Appellant’s third, fourth, and
fifth issues lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
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