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

v.

ANTHONY MICHAEL JOHNSON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1489 EDA 2017 Appeal from the Judgment of Sentence Entered April 5, 2017 In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP

- 23

- CAR

- 0000889

- 2016 BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E. JUDGMENT ORDER BY McLAUGHLIN, J.: FILED SEPTEMBER 1 2 , 2018 Following a bench trial, the trial court found Anthony Michael Johnson guilty of Driving Under the Influence of Alcohol or Controlled Substance (general impairment) (DUI) , but acquitted him of Drivers Required to Be Licensed , Driving Vehicle at Safe Speed , and Careless Driving

. 1 Johnson
argues on appeal that the guilty verdict was against the weight of the evidence because of a claimed inconsistency between the conviction and the acquittals

. Johnson waived his weight claim, and we therefore affirm. An appellant may not challenge the weight of the evidence in the first instance on appeal. See Pa.R.Crim.P. 607(A); Commonwealth v. Roche , 153 A.3d 1063, 1071 (Pa.Super. 2017), appeal denied , 169 A.3d 599 ( Pa. 2017). Although Johnson raised a weight claim before the trial court in a

_________________ __________ ______ ____ _______ * Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(a)(1), 1501(a), 3361, and 3714(a), respectively.J

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Motion for Extraordinary Relief and/or Arrest of Judgment, he withdrew the
motion before the court ruled on it

. The withdrawal is memorialized in bot h a
notation on the trial court docket and a signed document in the certified record. Johnson did not otherwise raise the issue in the trial court and he does
not make any argument that he did not commit waiver despite having withdrawn the motion

. Johnson waived his weight challenge. Even if Johnson had properly preserved the issue, we would nonetheless affirm. The trial court addressed Johnson’s weight

- of

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- evidence argument because he asserted it in his Pa.R.A.P 1925(b) Statement. Johnson ’s Rule 1925(b) Statement claimed that “the verdict of guilty to the charge of DUI in light of the acquittals to the remaining traffic summary offenses [was] aga inst the weight of the evidence ” and “shock[s] the conscience[,] [t]hereby necessitating vacating the guilty v erdict or alternatively, granting a new trial[.]” Johnson ’s Br., Ex. B. The trial court explained that it had disbelieved Johnson’s testimony at trial that he was not the one driving at the time of the incid ent giving rise to the charges at issue in this appeal . The court then concluded that, in view of the other evidence against Johnson

– in particular the testimony of other witnesses whom the court found credible

– the verdict was not objectively shocking

. That conclusion was not an abuse of discretion

. See Commonwealth v. Clay , 64 A.3d 1049, 1054

- 55 (Pa. 2013) (stating standard of review of an order denying a motion for a new trial based on a weight claim is abuse of discretion). To the extent Johnson attempts toJ

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reframe his weight argument as a challeng e to the sufficiency of the evidence, he waived th at argument by not raising it in his Rule 1925(b) Statement. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/12/18