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HomeMy WebLinkAboutCP-21-CR-1215-2003COMMONWEALTH V. ROBERT RYAN KENNEDY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-1215 CRIMINAL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J. December ,2003 After a summary trial on August 5, 2003, we found the defendant guilty of driving under suspension, D.U.I. related, in violation of Section 1543(b)(1) of the Vehicle Code.1 On August 26, 2003, we imposed the mandatory sentence of 90 days in prison and a $1000 fine. The defendant has filed this timely appeal. The only issues raised on appeal deal with the sufficiency and weight of the evidence. FACTUAL BACKGROUND On December 21, 2002, Officer Kauffman of the East Pennsboro Township police department was on routine patrol. The officer was acquainted with the defendant and apparently knew that his license was under suspension. At approximately 9:05 a.m. he saw the defendant enter a motor vehicle in the parking lot of the Uni-Mart and drive it through a strip mall known as East Penns Commons. He followed the vehicle through the strip mall and observed it pull into a parking stall. Officer Kauffman then maneuvered his patrol car to a position where he was able to positively identify the defendant as the sole occupant and driver of the vehicle. Officer Kauffman did not immediately stop the defendant to issue a citation. Rather, he returned to the station to confirm that driving upon a traffic way is an offense ~ 75 Pa. C.S.A. § 1543(b)(1). NO. 2003-1215 CRIMINAL under Section 1543 (b)(1). The officer also obtained a certified copy of the defendant' s driving record to confirm that he was, in fact, under suspension.2 The defendant and his girlfriend both testified at the hearing. They conceded that the defendant and his vehicle were at the Uni-Mart on the morning of December 21, 2002, at around 9:00 a.m. However, both denied that the defendant had driven the vehicle. According to them, the girlfriend had used it to drive herself to work at the Uni- Mart earlier in the day. The defendant then walked to that location from their home so that she could drive him to work in Harrisburg. DISC[ISSION The section of the Vehicle Code under which the defendant was charged provides in relevant part as follows: A person who drives a motor vehicle on a highway or traffic way of this Commonwealth at a time when the person' s operating privilege is suspended or revoked.., for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance).., shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1000 and to undergo imprisonment for a period of not less than 90 days. (emphasis added) 75 Pa. C.S.A. § 1543(b)(1). The defendant does not dispute that his license was under suspension for a driving under the influence conviction. Nor does he dispute that the parking lots of the Uni-Mart and East Pennsboro Commons fall within the definition of "traffic way" contained in the Vehicle Code. Rather, he contends that the evidence was insufficient to prove that he was the driver of the vehicle. : Commonwealth Exhibit 1 shows that the defendant's license had been received by the Department on February 5, 2002, the effective date of a one year suspension imposed as a result of a driving under the influence conviction. NO. 2003-1215 CRIMINAL The standard of review in assessing a sufficiency of the evidence challenge is well settled and was recently articulated by the Superior Court as follows: The standard (to be applied) in reviewing the sufficiency of 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." Commonwealth v. Heberling, 451 Pa. Super. 119, 678 A.2d 794, 795 (Pa. Super. 1996)(citing Commonwealth v. Williams, 539 Pa. 61,650 A.2d 420 (1994)) .... 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. Commonwealth v. Cassidy, 447 Pa. Super. 192, 668 A.2d 1143, 1144 (Pa. Super. 1995) (citations omitted). 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 trier 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. Falette, 531 Pa. 384, 388, 613 A.2d 548 549 (1992) (citations and quotation marks omitted). Commonwealth v. Marinez, 777 A.2d 1121, 1126 Pa. Super. (2001) quoting from Commonwealth v. Fetrini, 734 A.2d 404, 406-407 Pa. Super. (1999). Applying that standard to the case at bar, we are at a loss to understand the defendant's challenge. Officer Kauffman specifically testified that he saw the defendant get into and drive the vehicle. After the vehicle pulled into a parking space, the officer made sure that it was the defendant who had been driving. We believed his testimony. Therefore, we found the defendant guilty of violating Section 1543 (b)(1) of the Vehicle Code. In the alternative, the defendant is seeking a new trial on the grounds that our verdict was against the weight of the evidence. As the Superior Court has noted: NO. 2003-1215 CRIMINAL A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one's sense of justice. Furthermore, issues of credibility are left to the trier of fact; (who) is free to accept all, part, or none of the witnesses' testimony. (citations omitted). Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa. Super. 2000). In the instant case, we were satisfied beyond a reasonable doubt that all of the credible evidence established the defendant to be the driver of the vehicle on the date in question. DATE: Edward E. Guido, J. District Attorney Patrick F. Lauer, Jr., Esquire For the Defendant :sld