J-S01022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PAUL ASHMUNN

Appellant No. 813 WDA 2014

Appeal from the Judgment of Sentence April 8, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000716-2013

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 24, 2014

Appellant Paul Ashmunn appeals from the judgment of sentence 

entered in the Erie County Court of Common Pleas following his jury trial 

convictions for driving under the influence (“DUI”), general impairment, DUI, 

highest rate of alcohol, and the summary offenses of careless driving, failing 

to keep a vehicle to the right side of the road, and failing to yield.1 We 

affirm. 

The trial court sets forth the relevant facts and procedural history of 

this appeal as follows:

On November 16, 2012 at approximately 8:30 p.m., Mr. 

Guy Medved, an employee of Mayer Brothers Construction 

Company, was towing a truck east on Main Street, in 

Springfield Township, Erie County, Pennsylvania. This is a 

____________________________________________

1 75 Pa.C.S. §§ 3802(a)(1), 3802(c), 3714(a), 3301(a), 3302, respectively.
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two[-]lane highway. Near the Federated Church[,] he 

encountered [Appellant] traveling in the opposite 

direction[,] who passed him and then struck Mr. Medved’s 

trailer.[2] He spoke to [Appellant] and attempted to 

exchange insurance information. [Appellant] did not 

provide any. Mr. Medved began to call 911 when 

[Appellant’s] friend (and a passenger in [Appellant’s] 

vehicle) said that was not necessary. After [Appellant] left 

[in his vehicle], Mr. Medved called 911 and later met with 

Trooper Samuel Laureto, who responded within minutes 

after the accident. As Medved wanted [Appellant’s] 

insurance information, he searched for [Appellant’s] 

vehicle. He found it approximately 20-30 minutes after 

the accident. Trooper Laureto did likewise. [Appellant’s] 

van was found approximately 100 yards from the scene in 

the vicinity of a house. 

As Trooper Laureto approached the house, [Appellant] 

opened the door, holding a plate of food. He stumbled on 

the stairs. Laureto asked him if he was the driver of the 

vehicle and [Appellant] said no. When asked if he had a 

license[,] he said yes. (This is not what he had told Mr. 

Medved earlier.) Trooper Laureto asked [Appellant] for his 

name and background information. He noticed that he had 

glassy eyes and there was an odor of alcoholic beverage 

emanating from him. [Appellant] was swaying and 

slurring his words. Laureto concluded that [Appellant] was 

heavily intoxicated and asked him if he had been drinking. 

[Appellant] said that he had consumed four (4) beers. 

[Appellant] told Laureto that he couldn’t prove that he 

____________________________________________

2 At trial, Mr. Medved described the accident as follows:

There was a guy driving, and he drove over into my lane 

making a turn.... He was over in my lane coming at me. 

I’m slowing down, and he drives past me and then 

hits...the side of my trailer.... But the corner of his van was 

almost in the grass, just right on the edge of the grass.... 

He went back over to his lane, missed my truck, and then 

run back into my trailer....

N.T., 7/7/14, at 17, 27.
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([Appellant]) was driving. Laureto ran [Appellant’s] 

background information and found that [Appellant’s] 

license had been suspended. This conversation with 

[Appellant] took place at approximately 8:50 p.m., 

approximately 29 minutes after the 911 call had been 

made by Mr. Medved. Throughout the interview, 

[Appellant] was confrontational, cursed and called the 

trooper a "dick". He also told the trooper he did not do 

field sobriety tests. At that time, Laureto placed 

[Appellant] under arrest and transported him to the Girard 

Barracks of the Pennsylvania State Police. There he 

Mirandized[

3

] [Appellant] and questioned him concerning 

his drinking. [Appellant] responded by cursing. He 

continued to berate Laureto and other troopers present. 

The officers had a long and difficult time with him. 

[Appellant] was administered his O'Connell[

4

] warnings 

which he indicated he understood. He agreed to chemical 

testing which was conducted by way of a blood draw at 

2155 hours or 9:55 p.m. His blood alcohol level was 

.198%. 

[Appellant] presented the testimony of his friend Jason 

DeSantis[.] He testified that [Appellant] was on the way 

to his house for drinks and arrived at approximately 7:15 

____________________________________________

3 Miranda v. Arizona, 384 U.S. 436, 16 L.Ed 2d 694 (U.S.1966).

4 O’Connell warnings concern a refusal to submit to chemical testing by a 

motorist suspected of DUI. Our Supreme Court has discussed O’Connell

warnings as follows:

[A] proper O'Connell warning must include the following 

information: first, a motorist must be informed that his 

driving privileges will be suspended for one year if he 

refuses chemical testing; second, the motorist must be 

informed that his Miranda rights do not apply to chemical 

testing. This is by no means a mantra that the police must 

recite like automatons. The subject matter, however, 

should be covered in warnings issued by the police.

Com. Dep't of Transp., Bureau of Driver Licensing v. Ingram, 648 A.2d 

285, 294-95 (Pa.1994).
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p.m. He said [Appellant] was upset regarding the accident 

and began drinking whiskey and beer. The two shared the 

alcohol and both he and [Appellant] had a ‘buzz going.’ 

DeSantis stated that the state police arrived about 8:45 

p.m., at which time [Appellant] stated he would take care 

of it. 

On April 9, 2014, [Appellant] was sentenced to a period of 

incarceration of 13 to 26 months at Count 2. Count 1 

merged. Fines and costs were assessed on the summary 

offenses. This sentence was to be served concurrently and 

overlapping with another sentence [Appellant] was serving 

at the time. On April 15, 2014, he filed a post sentence 

motion which was denied by this [c]ourt the same day. 

Trial Court Opinion, filed July 1, 2014, at 1-3.

On May 13, 2014, Appellant timely filed a notice of appeal. The next 

day, the court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). After the court 

granted Appellant’s motion to extend the time to file his Rule 1925(b) 

statement to July 3, 2014, Appellant timely complied with the court’s order 

on June 30, 2014. 

Appellant raises the following issue for our review:

[WHETHER] THE VERDICT WAS AGAINST THE WEIGHT OF 

THE EVIDENCE IN THAT NO EVIDENCE WAS PRESENTED 

THAT APPELLANT WAS INTOXICATED AT THE TIME HE 

WAS DRIVING[?]

Appellant’s Brief at 2.

Appellant only raises one question for our review, that the verdict was 

against the weight of the evidence. His argument, however, challenges both 

the sufficiency of the evidence and the weight of the evidence. To address 
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his weight claim, we must first address his implicit challenge to the 

sufficiency of the evidence. 

Appellant argues that “no evidence” was presented that Appellant was 

intoxicated while he was driving. Appellant contends the officers failed to 

provide information regarding the calibration of scientific equipment used for 

testing the alcohol in his blood and failed to show Appellant was driving the 

vehicle while the alcohol was in his system. Appellant concludes the 

Commonwealth did not present enough evidence to prove that he was 

legally intoxicated while driving. We disagree. 

When examining a challenge to the sufficiency of evidence, our 

standard of review is as follows:

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 [the above] 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.
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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal 

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874 

A.2d 108, 120-21 (Pa.Super.2005)).

The DUI offenses for which Appellant was charged are defined by 

statute as follows:

§ 3802. Driving under influence of alcohol or 

controlled substance

(a) General impairment.--

(1) An individual may not drive, operate or be in actual 

physical control of the movement of a vehicle after 

imbibing a sufficient amount of alcohol such that the 

individual is rendered incapable of safely driving, operating 

or being in actual physical control of the movement of the 

vehicle.

* * *

(c) Highest rate of alcohol.--An individual may not 

drive, operate or be in actual physical control of the 

movement of a vehicle after imbibing a sufficient amount 

of alcohol such that the alcohol concentration in the 

individual's blood or breath is 0.16% or higher within two 

hours after the individual has driven, operated or been in 

actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802.

Instantly, the jury was presented with enough evidence to find all of 

the elements of these DUI offenses beyond a reasonable doubt. Specifically, 

the Commonwealth presented Appellant’s blood test results, the testimony 

of Mr. Medved, who was involved in an automobile accident with Appellant, 
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and the testimony of Trooper Laureto, who arrested Appellant soon after the 

accident. Mr. Medved testified that Appellant drove into his lane of traffic 

and struck Mr. Medved’s vehicle. Further, Mr. Medved testified that either 

Appellant or his passenger asked Mr. Medved not to call 911, and that 

Appellant wrote down a phone number in an illegible manner. After 

Appellant left the accident scene, Mr. Medved followed him to obtain 

insurance information and called 911 to report the accident. Trooper

Laureto then encountered Appellant at his home and found him to be 

stumbling and belligerent only twenty-nine minutes after the accident. 

Trooper Laureto also testified that Appellant’s speech was slurred and his 

eyes appeared to be glassy. Appellant’s blood test that indicated a BAC of 

.198% was conducted at 9:55 p.m., which was less than one and a half 

hours after he was seen driving the vehicle at 8:30 p.m. Further, both 

parties stipulated to the results of Appellant’s chemical tests, and Appellant 

did not raise any challenge to the timing or the equipment used for testing 

at trial.5 

Mr. Medved testified that he did not notice Appellant smelling of 

alcohol or exhibiting other physical manifestations of intoxication at the 

____________________________________________

5 Because Appellant did not challenge the timing or the equipment used for 

testing at trial, this argument is waived. See Commonwealth v. Ballard, 

80 A.3d 380, 400 (Pa.2013) cert. denied, 134 S.Ct. 2842 (2014) (holding 

appellant’s arguments were waived because appellant failed to object at 

trial). See also Pa.R.A.P. 302.
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accident scene. Mr. Medved also testified, however, that Appellant was 

driving erratically, struck his automobile, and wrote down an illegible phone 

number. This testimony, together with Trooper Laureto’s testimony about 

Appellant’s obvious intoxication twenty-nine minutes after the accident and 

Appellant’s blood test results, were circumstantial evidence that Appellant 

was intoxicated while he was driving a vehicle. The jury was free to believe 

this evidence, and it obviously chose to do so. Thus, Appellant’s implicit 

challenge to the sufficiency of the evidence fails. See Hansley, supra. 

We now address Appellant’s contention that the jury’s verdict was 

contrary to the weight of the evidence. Appellant argues the jury should 

have believed Appellant’s friend, who testified that Appellant only drank 

alcohol while visiting him after the accident. Appellant claims the jury’s 

decision to credit the circumstantial evidence of Appellant’s intoxication while 

driving, instead of the direct evidence of his friend, was shocking. We 

disagree. 

We review challenges to the weight of the evidence as follows:

The 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. An appellate court cannot substitute its 

judgment for that of the finder of fact. Thus, we may 

only reverse the...verdict if it is so contrary to the 

evidence as to shock one's sense of justice. 

Commonwealth v. Small, 741 A.2d 666, 672–73 

(Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42 

(U.S.2000)]. Moreover, where the trial court has ruled on 

the weight claim below, an appellate court’s role is not to 
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consider the underlying question of whether the verdict is 

against the weight of the evidence. Rather, appellate 

review is limited to whether the trial court palpably abused 

its discretion in ruling on the weight claim. 

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal 

denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted). 

Accordingly, “[o]ne of the least assailable reasons for granting or 

denying a new trial is the lower court’s conviction that the verdict was or 

was not against the weight of the evidence and that a new trial should be 

granted in the interest of justice.” Commonwealth v. Clay, 64 A.3d 1049, 

1055 (Pa.2013). A trial judge should not grant a new trial due to “a mere 

conflict in the testimony or because the judge on the same facts would have 

arrived at a different conclusion.” Id. Instead, the trial court must examine 

whether “‘notwithstanding all the facts, certain facts are so clearly of greater 

weight that to ignore them or to give them equal weight with all the facts is 

to deny justice.’” Id. Only where the jury verdict “is so contrary to the 

evidence as to shock one's sense of justice” should a trial court afford a 

defendant a new trial. Id. A weight of the evidence claim concedes that the 

Commonwealth introduced sufficient evidence. Commonwealth v. 

Charlton, 902 A.2d 554, 561 (Pa.Super.2006), appeal denied, 911 A.2d 933 

(Pa.2006).

Here, the jury had the opportunity to assess the credibility of the 

witnesses and consider all the evidence presented. As previously 

mentioned, the Commonwealth provided sufficient evidence for the jury to 
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find all elements of Appellant’s crimes beyond a reasonable doubt. The 

verdict was not so contrary to the evidence as to shock one’s sense of 

justice. Therefore, the trial court properly exercised its discretion in denying 

Appellant’s challenge to the weight of the evidence. See Devine, supra. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/2014