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Commonwealth v. Morsching

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
CHAD J. MORSCHING Appellant

NON-PRESIDENTIAL DECISION

Appeal from the Judgment of Sentence entered January 25, 2013 In the Court of Common Pleas of Lehigh County Criminal Division at No: CP-39-CR-2287-2012

BEFORE: ALLEN, STABILE, AND STRASSBURGER, [*] JJ.

STABILE, J.

Appellant, Chad J. Morsching, appeals from the judgment of sentence entered by Court of Common Pleas of Lehigh County on January 25, 2013 following a bench trial where the trial court found Morsching guilty of two counts of driving under the influence. On appeal, Morsching raises several challenges to the weight of the evidence. Because the trial court did not abuse its discretion in ruling on these claims, we affirm.

We assume the parties' familiarity with the facts and procedural history of the case. At any rate, for a detailed recitation of the facts and procedural history of this case, we direct the reader to the trial court's memorandum opinion. See Trial Court Opinion, 5/31/13, at 1-3.

On appeal, Morsching raises the following issues for our review:

Did the trial court err by failing to find that the verdict was against the weight of the evidence for the following reasons:
A. [Morsching] testified that he was not driving the motor vehicle at the time of the incident.
B. The Commonwealth failed to save videos taken by traffic cameras which could have shown that [Morsching] did not get into the driver['s] seat at the B&B Piano Bar.
C. The street on which the vehicle occupied by [Morsching] was stopped was too narrow for the police vehicle to pass[, ] as testified by the officers.
D.The witnesses who testified to the result of the blood alcohol and drug tests were not the technicians who actually perform[ed] the tests. Their testimony should not have been accorded much weight because there was no corroborating evidence that the vehicle occupied by [Morsching] was being driven in an erratic or unsafe manner.

Appellant's Brief at 5.

With our standard of review in mind, [1] after considering the record, the parties' briefs, the trial court's opinion, and the applicable law, we are satisfied the court adequately addressed in its opinion the issues Morsching raised on appeal, and conclude the trial court did not abuse its discretion in rejecting Morsching's weight of the evidence challenges. Accordingly, we adopt the opinion of the Honorable James T. Anthony, entered May 31, 2013 as our own. In any future filings with this or any other court addressing this ruling, the litigant shall attach a copy of the trial court's May 31, 2013 opinion to this memorandum.

Judgment of sentence affirmed

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

Defendant No. 2287-2012

OPINION

James T. Anthony, Judge:

On January 25, 2013, following a non-jury trial, I found the defendant guilty of two counts of Driving Under the Influence.[2]I immediately sentenced the defendant to a period of confinement of not less than 72 hours nor more than six months in the Lehigh County Prison. On February 1, 2013, the defendant filed a Motion for New Trial alleging the verdict was against the weight of the evidence. A hearing was held on March 19, 2013, following which I denied the defendant's motion. This appeal followed.

In the defendant's concise statement of errors complained of on appeal, he alleges the verdict was against the weight of the evidence because (1) he testified he was not the driver of the vehicle, (2) the Commonwealth failed to save a traffic camera video that could have shown he was not driving the vehicle, (3) the street on which the vehicle was stopped was too narrow for a police vehicle to pass as testified by officers, and (4) the witness that testified to the blood test results was not the technician that actually performed the test.

APPENDIX A

Summary of the Facts

On February 8, 2012, around 11:30 p.m., Detective Jorge Madero of the Allentown Police Department's Vice and Intelligence Unit was working undercover in an unmarked patrol vehicle, which was parked at the northeast corner of 9th and Chew Streets in Allentown. Madero and Detective Randy Fey were observing the B & B Piano Bar, located at the southwest corner of 9th and Chew Streets. The bar is a known hot spot for drug and other crime activity. Madero observed a vehicle park at the northwest corner of 9th and Chew Streets, and observed three men exit the vehicle. Madero identified the defendant, Chad Morsching, as the driver of the vehicle. All three men walked towards the bar. The other two males entered the bar, but the defendant doubled back to the vehicle. The defendant opened the driver's door and appeared to take something from his waistband and put it inside the vehicle. Madero and Fey believed it may have been a weapon, but could not see what the item actually was. The defendant then entered the bar.

Approximately 45 minutes later, all three men exited the bar and walked towards their vehicle. Detective Madero observed the defendant get into the driver's seat and drive the vehicle away from the bar. Madero followed and radioed for a marked patrol unit to assist with a vehicle stop. The defendant drove a short distance and pulled over on the south side of North Street. Madero pulled past and just ahead of the defendant's vehicle, parked on the north side of the street, and he and Detective Fey exited. The defendant exited the driver s door and began walking westbound down the sidewalk. At that time, Officer Miguel Villa arrived in a marked patrol unit.

Officer Villa drew his gun and called the defendant over to him. As the defendant was walking towards Villa, he appeared to be staggering. Villa could see the defendant's eyes were bloodshot and dilated, and he smelled an odor of an alcoholic beverage on the defendant's person. Villa asked the defendant if he was willing to take field sobriety tests. The defendant responded, Tor what? I would fail." The defendant did submit to the tests, and ultimately failed them. Villa made a determination that the defendant was incapable of safe driving, placed him under arrest and transported him to the DUI Center. At the Center, the defendant's blood was drawn for testing. Subsequent results showed the defendant's BAC was .02%, and the tests were positive for marijuana and PCP.

Discussion

Decisions regarding what weight to afford the evidence are exclusively within the province of the finder of fact, who is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004). In addition, a new trial will only be granted in cases where the verdict is so contrary to the evidence that it shocks one's sense of justice. Commonwealth v, Simpson, 754 A.2d 1264 (Pa. 2000).

The verdict in this case does not shock one's sense of justice, in errors 1 and 2, the defendant essentially makes a credibility argument. While the defendant did testify he was not the driver of the vehicle, I found credible the testimony of Detective Medero that he observed the defendant get into the driver's seat of the vehicle, drive away, and exit the driver's door after parking. Similarly, even though the defendant alleges the street he parked on was too narrow for a second vehicle to pass, I found credible

Madera's testimony that he pulled his vehicle past the defendant's vehicle and then parked.

Next, regarding the traffic camera video, the defendant argues the footage would have shown he was not the driver of the vehicle, and he asks that I draw an inference that the footage was unfavorable to the Commonwealth since they did not preserve the video. However, I have no way of knowing whether the footage contained anything material to the case. The street cameras in Allentown rotate views in a randomized pattern, and there is no way of knowing whether the camera was aimed at the vehicle at the moment the defendant entered it. Notably, assuming the camera was aimed in that direction, it is just as likely that the footage would show the defendant was the driver of the vehicle. As stated above, I found Detective Madera's testimony credible and, even absent the video, there was enough evidence to show the defendant was the driver of the vehicle.

Finally, in regard to the blood test results, the defendant asks that i not afford much weight to the results since the technician that performed the tests did not testify at trial. See Commonwealth v. Yohe, 39 A.3d 381 (Pa.Super2012). However, there were other indicia of driving under the influence that corroborated the results of the blood test. Detective Madero testified the defendant was the driver of the vehicle; Officer Villa testified the defendant was staggering, had bloodshot and dilated eyes, and was incapable of safe driving; and the defendant failed the field sobriety tests. Absent any evidence from the defendant that the test results were in some way defective, I find I afforded the test results the proper weight when considered along with ail the other evidence presented.

Based on the above reasons, the defendant's appeal is without merit. I respectively submit that the appeal should be dismissed, and the defendant's judgment of sentence should be affirmed. May 31, 2013

CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

AND NOW, comes the Defendant/Appellant, CHAD MORSCHING, by and through his counsel, Robert Long, Esquire, and respectfully submits this Concise Statement of Matters Complained of on Appeal pursuant to Pa. R. A. P. 1925 (b), and states as follows:

1. The Trial Court erred by failing to find that the verdict was against the weight of the evidence for the following reasons:
a. The defendant testified that he was not driving the motor vehicle at the time of the incident.
b. The Commonwealth failed to save videos taken by traffic cameras which could have shown that the defendant did not get into the drivers seat at the B&B piano bar.
c. The street on which the vehicle occupied by the defendant was stopped was too narrow for the police vehicle to pass as testified by the officers.
d. The witnesses who testified to the results of the blood alcohol and drug tests were not the technicians who actually perform the tests. Their testimony should

APPENDIX B

not have been accorded much weight because there was no corroborating evidence that the vehicle occupied by the defendant was being driven in an erratic or unsafe manner.


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