No. 341 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Lycoming County, at No. 79-10, 324.
Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellant.
John A. Felix, Williamsport, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 288 Pa. Super. Page 473]
The Commonwealth has appealed from an order of the trial court which granted the defendant's motion in arrest of judgment. Following a jury trial, appellee, Donald Slout, was found guilty of driving under the influence of alcohol or a controlled substance,*fn1 simple assault,*fn2 and resisting arrest.*fn3 The appellee filed a motion in arrest of judgment and motion for a new trial. The trial judge granted the appellee's motion in arrest of judgment as to the charge of driving under the influence but denied the motion in arrest of judgment and motion for a new trial as to the remaining counts. He did not act on the motion for a new trial on the conviction of driving under the influence.
[ 288 Pa. Super. Page 474]
The trial court's grant of Slout's motion in arrest of judgment was based on grounds of insufficient evidence to support the jury's finding that the appellee was driving the truck.*fn4 It is well established that:
"In passing upon such a motion [in arrest of judgment], the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove." [Citations omitted.] [emphasis in original.]
Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965); Commonwealth v. Winebrenner, 439 Pa. 73, 77-78, 265 A.2d 108 (1970); Commonwealth v. Terenda, 433 Pa. 519, 523, 252 A.2d 635 (1969); Commonwealth v. Hazlett, 429 Pa. 476, 478, 240 A.2d 555, 556 (1968). In order for a trial court to properly grant a criminal defendant's motion in arrest of judgment on the ground of insufficient evidence; "it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant] is guilty of the crime charged." Commonwealth v. Blevins, 453 Pa. 481, 483, 309 A.2d 421, 422 (1973); Commonwealth v. Froelich, 458 Pa. 104, 106, 326 A.2d 364, 365 (1974); Commonwealth v. Winebrenner, supra; Commonwealth v. Terenda, supra.
Commonwealth v. Meadows, 471 Pa. 201, 205-206, 369 A.2d 1266, 1268 (1977).
[ 288 Pa. Super. Page 475]
Reviewing the record in this light we find ample support for the following facts: Shortly after 3:00 a. m., on May 6, 1979, Officer Lowmiller of the Old Lycoming Township Police was dispatched to an accident at Ramp Q-3 on U.S. Route 15. Upon arrival at the scene he observed a dark colored Dodge pick-up truck sitting on top of the guard rails. The truck was severely damaged from hitting several barrels and the guard rails. The driver's side door was open. An unidentified observer told Lowmiller at the scene that the operator had left. The officer then proceeded to talk with Cindy Lowmiller*fn5 who informed him that Don Slout was driving. After talking to her and finding out where the appellee had headed the officer proceeded north on the ramp in his cruiser to attempt to locate Mr. Slout. Half way down the ramp he noticed a man at the intersection of the ramp and Foy Avenue. When the officer got to the bottom of the ramp he yelled, "Donald Slout." The appellee continued to cross the street staggering and swaying. At this point another police cruiser stopped at the corner. The appellee walked up to the driver's window and made an obscene remark to Police Chief Meredith who was the driver of the second police cruiser. Officer Lowmiller got out of his car and walked across to Mr. Slout and began speaking with him. From the beginning of the conversation the appellee was very belligerent and abusive. When Lowmiller mentioned to him about the truck being wrecked the appellee responded, "I can wreck my truck any time that I want." When the appellee was advised that he would have to go back to the scene of the accident ...