NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 32 MDA 2014

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. CHASE SPENCER CARIGNAN Appellant No. 32 MDA 2014 Appeal from the Judgment of Sentence July 10, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J. MEMORANDUM BY MUNDY, J.: FILED MAY 14, 2014 Appellant, Chase Spencer Carignan, appeals from the July 10, 2013 judgment of sentence of nine months probation, imposed after the jury found Appellant guilty of selling or furnishing liquor or malt or brewed beverages to minors. 1 The trial court also found Appellant guilty of the summary offense of defiant trespass. 2 After careful review, we affirm the judgment of sentence Pa.C.S.A Id. 3503(b)(1). 3 We note that the Commonwealth has not filed a brief in this matter.

2 The trial court summarized the relevant facts and procedural history of this case as follows. [D]uring the summer of 2012, [M.L.] was 18 years of age. [M.L.] stated that she had met [Appellant, then 26 years old,] in a Spanish class at the Harrisburg Area Community College. M.L. described [Appellant] as her boyfriend. As of July 2012, M.L. resided in an alumni housing dormitory at the Milton Hershey School, which is a residential preparatory school. On July 16, 2012, [Appellant] picked up M.L. at her Hershey School residence. The two proceeded to Duke s restaurant in Palmyra, Pennsylvania. At Duke s, [Appellant] purchased and consumed a pitcher of beer that he did not share with M.L. After leaving Duke s, [Appellant] and M.L. drove to a parking lot hidden behind a Palmyra factory. There, [Appellant] and M.L. both consumed several bottles of beer. While [Appellant] and M.L. were inside [Appellant] s Ford Explorer vehicle, Lieutenant James Hunt of the Palmyra Police Department approached the vehicle to investigate. Lt. Hunt was ultimately able to discern that M.L. was 18 and that she had consumed alcohol with [Appellant]. [Appellant was subsequently charged with one count of selling or furnishing liquor or malt or brewed beverages to minors, and proceeded to a jury trial on July 10, 2013.] At trial, the Commonwealth sought to establish that M.L. and [Appellant] were engaging in sexual relations when Lt. Hunt arrived on the scene. [Appellant] objected, claiming that evidence of the sexual relationship was both irrelevant and prejudicial. Th[e trial c]ourt ruled that the intimate nature of the relationship between [Appellant] and M.L. was circumstantial evidence of the type of familiarity that would lead [Appellant] to know M.L. s age. Ample evidence was presented at trial that [Appellant] and M.L. consumed alcohol. Lt. Hunt - 2 -

3 observed bottles of Land[s]hark beer including some that were half consumed. He smelled an odor of an alcoholic beverage on M.L. s breath and described her as intoxicated. Both M.L. and [Appellant] admitted to having consumed alcohol; at no time did either [Appellant] or M.L. dispute that both drank beer that [Appellant] had purchased at a local beer distributorship. At trial, and on Post-Sentence Motions, [Appellant] s primary argument was that he did not know M.L. s age. This argument was predicated primarily upon the fact that during crossexamination, M.L. stated that she never told [Appellant] her age. On the other hand, [Appellant] provided a statement to Lt. Hunt in which he admitted encouraging M.L. to drink and in which he referred to M.L. as a minor. Both sides then provided a multitude of circumstantial arguments relevant to the issue of whether [Appellant] knew M.L. s age. Trial Court Opinion, 11/27/13, at 3-5 (citations to notes of testimony omitted). On July 10, 2013, the jury found Appellant guilty of selling or furnishing liquor or malt or brewed beverages to minors, and the trial court found Appellant guilty of the summary offense of defiant trespass. Appellant was sentenced to nine months probation that same day. On July 17, 2013, Appellant filed timely post-sentence motions that sought, inter alia, a judgment of acquittal on the basis that the verdict was against the weight and sufficiency of the evidence. See Appellant s Consolidated Post-Sentence Motions, 7/17/13, at 5-6. On November 27, 2013, the trial court filed an - 3 -

4 opinion and order denying Appellant s post-sentence motions. This timely appeal followed on December 23, On appeal, Appellant raises the following issues for our review. I. Whether the Commonwealth produced insufficient evidence to sustain Appellant s conviction for Selling or Furnishing Liquor or Malt or Brewed Beverages to Minors? II. Whether the jury s verdict of guilty was against the weight of the evidence presented at trial, entitling Appellant to a new trial? Appellant s Brief at 5. III. Whether the [t]rial [c]ourt abused its discretion in allowing the admission of evidence regarding sexual intercourse between Appellant and [M.L.] on July [16], 2012? We begin by addressing Appellant s claim that there was insufficient evidence to sustain his conviction for selling or furnishing liquor or malt or brewed beverages to minors. Specifically, Appellant first argues that the Commonwealth failed to prove that he had the requisite knowledge that [M.L.] was under the age of twenty-one[.] Id. at 10, 12. For the following reasons, we disagree. 4 On December 27, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b), with 21 days. Appellant filed a timely Rule 1925(b) statement on January 16, In lieu of filing a formal Rule 1925(a) opinion, the trial court filed an order on January 20, 2014 indicating that it will be relying on its prior opinion filed November 27,

5 When reviewing a sufficiency of the evidence claim, our standard of review is well settled. We must review the evidence admitted during the trial along with any reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth. Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa. Super. 2011) (citation omitted). Any doubts concerning an appellant s guilt [are] to be resolved by the trier of fact unless the evidence was so weak and inconclusive that no probability of fact could be drawn therefrom. Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008). Moreover, [t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 2007) (citations omitted). [T]he trier of fact, in passing upon the credibility of the witnesses, is free to believe all, part, or none of the evidence. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citation and internal quotation marks omitted), cert. denied, Rivera v. Pennsylvania, 560 U.S. 909 (2010). A person will be found guilty of selling or furnishing liquor or malt or brewed beverages to minors if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or - 5 -

6 furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age. 18 Pa.C.S.A Viewing the evidence in the light most favorable to the Commonwealth, as the verdict winner, we conclude there was overwhelming evidence to support Appellant s conviction for selling or furnishing liquor or malt or brewed beverages to minors. The evidence adduced at trial established that on the evening in question, Appellant and M.L., who was 18 years old at the time, consumed several bottles of Landshark Lager, a beer that was purchased by Appellant earlier in the evening. At trial, Lieutenant James Hunt of the Palmyra Police Department testified that upon arriving at the scene, he observed several bottles of Landshark Lager, including some that were half consumed, in Appellant s vehicle. N.T., 7/10/13, at The record reveals that M.L. admitted to drinking Landshark Lager on the evening in question, and that Appellant had purchased said beer at a local distributorship. Id. at 6, 25, 29, 31. Additionally, Lieutenant Hunt testified that he smelled an odor of an alcoholic beverage on M.L. s breath and described her as under the influence. Id. at 25-26, 37. Despite Appellant s testimony to the contrary, Lieutenant Hunt further testified that Appellant acknowledged that M.L. was 18 years old, and provided Lieutenant Hunt a statement wherein he referred to M.L. as a minor. Id. at 31-32,

7 Appellant also argues that there was insufficient evidence that Landshark Lager was a malt or brewed beverage as defined in [Section ]. Appellant s Brief at 12. Appellant contends that because the Landshark Lager was never tested by police and the label on the Landshark Lager beer did not indicate a percentage of alcohol, the Commonwealth did not establish its burden of proving that consumption of Landshark Lager by a minor was unlawful. Id. at This claim is entirely devoid of merit. Malt or brewed beverages are defined in Section as [a]ny beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called. 18 Pa.C.S.A Pursuant to 75 Pa.C.S.A. 6312, [c]hemical analysis is not required to prove that the substance is liquor or a malt or brewed beverage. 75 Pa.C.S.A. 6312(a)(1). Additionally, the Commonwealth can prove a substance is liquor or a malt or brewed beverage by circumstantial evidence. Id. 6312(a)(2). Instantly, we conclude that the Commonwealth introduced sufficient circumstantial evidence that Landshark Lager is a malt or brewed beverage. The record reveals that Lieutenant Hunt testified that he was aware that Landshark Lager was in fact an alcoholic beverage, and that he smelled an odor of an alcoholic beverage on M.L. s breath. Id. at 26, 37. Similarly, M.L. provided a written statement to police and admitted that the beer she consumed with the Appellant was in fact alcoholic. Id. at 25, 29. The - 7 -

8 record also reveals Appellant had purchased the Landshark Lager in question at a local beer distributorship. Id. at 6, 31. Moreover, after being informed by Lieutenant Hunt that he may be charged with a violation of Section , Appellant acknowledged that Landshark Lager was an alcoholic beverage. Id. at 43-44, 48. Based on the foregoing, we conclude that Appellant s claim there was insufficient evidence to sustain his conviction for selling or furnishing liquor or malt or brewed beverages to minors must fail. Appellant next argues that the verdict was against the weight of the evidence because the jury afforded too great of [sic] weight to the testimony of Lieutenant Hunt. Appellant s Brief at 13. Appellant maintains that the testimony of [M.L.] and Appellant that [he] was unaware of [M.L. s] age should have been given more weight by the jury. Id. at 14. For the foregoing reasons, we conclude that Appellant s weight claim merits no relief. 5 5 Pennsylvania Rule of Criminal Procedure 607 provides, in pertinent part, that a claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion. Pa.R.Crim.P. 607(A). The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived. Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 2006). In the instant matter, Appellant properly preserved his weight of the evidence claim by raising it in his July 17, 2013 post-sentence motions

9 This Court has long recognized that [a] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed. Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (citation omitted). Where the trial court has ruled on a weight claim, an appellate court s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, [our] review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert. denied, Tharp v. Pennsylvania, 541 U.S (2004). Instantly, the jury, sitting as fact-finder, found Lieutenant Hunt s testimony with regard to whether Appellant knew M.L. was a minor, credible, and elected not to believe Appellant s version of the events. See N.T., 7/10/13, at 31-32, It is well established that this Court is precluded from reweighing the evidence and substituting our credibility determination for that of the fact-finder. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted) (stating, [t]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses[] ), cert. denied, Champney v. Pennsylvania, 542 U.S. 939 (2004). Moreover, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding an - 9 -

10 [Appellant] s guilt 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. Emler, 903 A.2d 1273, 1276 (Pa. Super. 2006). Accordingly, we decline to reweigh the evidence and disturb the jury s credibility determinations on appeal. Lastly, Appellant argues the [t]rial [c]ourt abused its discretion in allowing the Commonwealth to admit evidence pertaining to sexual intercourse that occurred between Appellant and [M.L.] on [the evening in question]. Appellant s Brief at 15. Appellant avers that said evidence was both irrelevant and unduly prejudicial. Id. at 16. In support of this claim, Appellant contends that, [i]n today s society, one does not need to know another personally in order for the two to engage in sexual intercourse. Rather, there are many instances in which two strangers engage in sexual intercourse without knowing the other s name, let alone the individual s age. More importantly there was un-rebutted testimony that Appellant purchased beer[,] which he and [M.L] consumed. Additionally, there was unrebutted testimony that [M.L.] was eighteen years old at the time of the incident. Based upon these facts and the additional evidence regarding sexual intercourse, a jury could reasonably infer that Appellant s intention that evening was to get [M.L.] intoxicated and subsequently take advantage of her. This evidence could have had a negative effect in the way that the jury perceived Appellant, as it potentially called into question Appellant s integrity and morality

11 Id. at In reviewing a trial court s ruling on the admissibility of evidence, our standard of review is one of deference. Questions concerning the admissibility of evidence are within the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion. Commonwealth v. Selenski, 18 A.3d 1229, 1232 (Pa. Super. 2011) (citation omitted). As noted, [a]n abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005) (internal citations and quotation marks omitted), appeal denied, 928 A.2d 1289 (Pa. 2007). Furthermore, if in reaching a conclusion the trial court over-rides [sic] or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error. Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009). This Court has long recognized that [t]he threshold inquiry with admission of evidence is whether the evidence is relevant. Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008) (citations and bracket omitted). Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable

12 or supports a reasonable inference or presumption regarding a material fact. Commonwealth v. Edwards, 903 A.2d 1139, 1156 (Pa. 2006) (citation and internal quotation marks omitted), cert. denied, Edwards v. Pennsylvania, 549 U.S (2007); accord Pa.R.E In the instant matter, our careful review of the record reveals that the evidence that Appellant and M.L. were engaged in sexual intercourse on the evening in question was relevant and admissible. See N.T., 7/10/13, at 19. Specifically, we conclude that said evidence was relevant in establishing that the nature and extent of Appellant s relationship with M.L. was such that he was undoubtedly aware of her age. In support of this conclusion, we adopt the following well-reasoned conclusions of the trial court as our own for purposes of this appellate review. [Appellant s] sexual relationship with M.L. was presented for a specific purpose to circumstantially establish the degree of intimacy that existed between M.L. and [Appellant]. According to the Commonwealth, M.L. was not simply a casual one-night acquaintance of [Appellant]; M.L. considered herself to be within a boyfriendgirlfriend relationship. According to the Commonwealth, such a relationship presupposes that both parties know basic biographical information about the other, including their age. Given the dispute over whether [Appellant] knew M.L. was under the age of 21, we erred on the side of permitting the jury to hear as much relevant information as possible to help them discern the truth. In our opinion, the nature, extent and details of the relationship between M.L. and [Appellant] were of critical importance

13 To be sure, the existence of sexual relations between M.L. and [Appellant] could not, by itself, establish [Appellant] s guilt of the crime charged. However, that is not the standard by which admissibility of evidence is assessed. The standard is whether the information was relevant whether it could assist the jury in determining the [Appellant] s knowledge of M.L. s age. In the opinion of this [trial c]ourt, the fact that [Appellant] s relationship with M.L. had progressed to the point of sexuality was relevant with respect to his knowledge of her and her age. Trial Court Opinion, 11/27/13, at Additionally, we disagree with Appellant s contention that this evidence was so prejudicial as to warrant a new trial. See Appellant s Brief at Specifically, Appellant argues the admission of said testimony was prejudicial because the jury could make the inference that it was his intention to get M.L. drunk and take advantage of her, therefore calling into question his integrity and morality. Id. at 17. Evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact. Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (citation omitted); accord Pa.R.E Evidence will not be prohibited merely because it is harmful to the [Appellant]. Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009) (citation omitted), appeal denied, 74 A.3d 125 (Pa. 2013). Rather, exclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case. Id.; see also

14 Pa.R.E. 403 Comment (defining undue prejudice as, a tendency to suggest decision on an improper basis or to divert the jury s attention away from its duty of weighing the evidence impartially[] ). Herein, Lieutenant Hunt s testimony that Appellant and M.L. engaged in sexual intercourse on the evening in question was probative in that it demonstrated the nature and extent of Appellant s relationship with M.L. The probative value of this testimony outweighed any prejudicial inference the jury may have drawn about Appellant s character. Accordingly, Appellant s claim that the trial court abused its discretion in permitting the Commonwealth to elicit testimony that Appellant and M.L. engaged in sexual intercourse on the evening in question must fail. For all the foregoing reasons, we conclude that Appellant is not entitled to relief in the instant appeal. Accordingly, we affirm the July 10, 2013 judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/14/