February 11, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
STEVEN KEITH KUHN Appellant
Appeal from the Judgment of Sentence April 23, 2013 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000488-2012
BEFORE: ALLEN, J., LAZARUS, J., and FITZGERALD, J. [*]
Steven Keith Kuhn appeals from the judgment of sentence imposed by the Court of Common Pleas of Cumberland County following his conviction for driving under the influence - highest rate,  driving under the influence -general impairment,  and driving while operating privilege suspended or revoked (DUI-related). After careful review, we affirm.
On the afternoon of August 22, 2011, a neighbor observed Kuhn consuming three beers before proceeding to enter his vehicle for a "drive around the block." N.T. Trial, 3/19/13, at 26-27. At approximately 4:00 p.m., the same neighbor observed Kuhn, in a highly intoxicated state, sitting in his vehicle with his foot on the brake and the engine running in the parking lot behind their apartment complex. The parking lot adjoins Creek Avenue, which is regularly patrolled by police. There are no "Private" or "No Trespassing" signs posted in the parking lot, and the lot is open to the public. Around 5:00 p.m., another neighbor observed Kuhn passed-out in his vehicle in the parking lot with the engine still running and the car in reverse. The neighbor proceeded to put the car in park, turn off the engine, put the keys in the cup holder, and call 911. Chief Darrell Goodhart of the Mount Holly Springs Police Department arrived at the scene at approximately 5:35 p.m. Chief Goodhart noted that Kuhn was "drooling, slobbering, and was literally unresponsive." N.T. Trial, 3/19/13, at 73. After assisting emergency personnel with placing Kuhn into an ambulance, Chief Goodhart retrieved ten beer cans from Kuhn's vehicle, three of which were full. While at the hospital, Kuhn consented to a blood test, which revealed a BAC of .446 percent.
On March 19, 2013, the case proceeded to a jury trial before Judge Masland. The jury found Kuhn guilty, and on April 23, 2013, the court sentenced Kuhn to an aggregate term of 24-42 months' imprisonment. This timely appeal followed.
On appeal, Kuhn presents three issues for our review:
1. Whether the trial court erred by not granting [Kuhn's] request for a mistrial when Chief Goodhart testified, "Twice I was given notice that [Kuhn] was pleading guilty" to the offenses charged and effectively created a presumption of a withdrawn guilty plea?
2. Was the evidence presented at trial sufficient to sustain a conviction on all three counts when Kuhn was neither driving nor operating his vehicle at the time of the incident, the Commonwealth did not prove [Kuhn] was a danger to public safety, and Officer Wiser's testimony was inconsistent with and contradicted by the physical facts in evidence?
3. Was Kuhn's conviction on all three counts against the weight of evidence as to shock one's conscience when the uncontradicted evidence proves [Kuhn] was not driving, operating, or in actual physical control of his vehicle at the time of the incident, the Commonwealth failed to prove [Kuhn] was driving with a BAC of .02% or above, and failed to prove [Kuhn] was driving within two hours of having a BAC of .16% or greater?
Brief of Appellant, at 6.
In his first issue, Kuhn argues that the trial court erred by failing to declare a mistrial based on an allegedly prejudicial remark made by Chief Goodhart. The following standard guides our review of the issue:
In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, . . . assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion. Judicial discretion requires action in conformity with [the] law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason.
Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.Super. 2012) (citing Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa.Super. 2008)) (internal citations and quotations omitted). Mistrial is an extreme remedy required "only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial tribunal." Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa.Super. 1998) (en banc), (quoting Commonwealth v. Montgomery, 626 A.2d 109, 112–13 (Pa. 1993)).
The trial court correctly denied Kuhn's motion for a mistrial because Chief Goodhart's misstatement was properly objected to, stricken from the record, and ultimately negated by a thorough curative instruction to the jury. Therefore it cannot be said that the misstatement deprived Kuhn of a fair and impartial trial. Johnson supra. Accordingly, we can afford Kuhn no relief on his initial claim.
In his second issue, Kuhn challenges the sufficiency of the evidence with respect to all three convictions; specifically, that the Commonwealth failed to establish Kuhn drove, operated, or was in actual physical control of his vehicle and presented a threat to public safety. The following standard guides our review of the issue:
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 [this] test, we may not weigh 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 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. Chine, 40 A.3d 1239, 1241-42 (Pa.Super. 2012).
Viewing all of the evidence in the light most favorable to the Commonwealth as the verdict winner, we conclude that the Commonwealth proved beyond a reasonable doubt that Kuhn drove, operated, or was in actual physical control of the movement of his vehicle. In short, the certified record reveals that Kuhn imbibed alcohol, operated his vehicle on a highway and/or in a trafficway, and the alcohol concentration in his blood was over 0.16 percent within two hours of Kuhn driving, operating, or having actual physical control over the movement of his vehicle. Accordingly, the trial court did not err in concluding the evidence was sufficient to convict Kuhn.
Kuhn relies on Commonwealth v. Byers, 650 A.2d 468 (Pa.Super. 1994), for the proposition that the Commonwealth failed to establish that he was a threat to public safety. We find that Byers is distinguishable from the case sub judice on its facts.
In Byers, a police officer found the defendant "sleeping it off" in his car with the engine running and headlights on in the private parking lot of the bar where he had been drinking. Byers, 650 A.2d at 470. There was no witness testimony that Byers had moved the vehicle prior to his arrest. We found these facts insufficient to prove that Byers posed a safety hazard to the public, and therefore the Commonwealth failed to establish that he was in actual physical control of the vehicle. Id. at 470-71.
Here, Kuhn moved his car before passing-out in the vehicle with the engine running and the car in reverse in the public parking lot behind his apartment complex. Moreover, there was witness testimony that Kuhn actually drove his vehicle prior to his arrest, but after consuming alcohol. N.T. Trial, 3/19/13, at 26-27. In Byers we were reluctant to penalize a person for sleeping it off, id., but here Kuhn was sleeping it off after committing the offense. Kuhn's reliance on Byers is misplaced and entitles him to no relief.
In his third issue on appeal, Kuhn argues that the jury's verdict was against the weight of the evidence. We find this issue waived.
In order to preserve a challenge to the weight of the evidence, an appellant must present this issue to the trial judge in a motion for a new trial, either orally prior to sentencing, by written motion prior to sentencing, or in a post-sentence motion. Pa.R.Crim.P. 607. Absent such efforts, a challenge to the weight of the evidence is waived. Commonwealth v. Barnhart, 933 A.2d 1061, 1066 (Pa.Super. 2007).
Upon review of the record, we conclude Kuhn made no such challenge and failed to preserve this issue. Accordingly, Kuhn's claim that the verdict was against the weight of the evidence is waived. Id.
Judgment of sentence affirmed. Judgment Entered.