J-A04016-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PATRICK J. DOHENY, JR.

Appellant No. 28 WDA 2014

Appeal from the Judgment of Sentence of June 24, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0001734-2012

BEFORE: OLSON, WECHT AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 09, 2015

Appellant, Patrick Doheny, appeals pro se from the judgment of 

sentence entered on June 24, 2013 in the Criminal Division of the Court of 

Common Pleas of Allegheny County, as made final by the denial of 

post-sentence motions on December 16, 2013. We affirm.1

____________________________________________

1 On March 13, 2015, Appellant filed an application for relief requesting that 

we remand this matter to the trial court for consideration of a petition for 

post-conviction relief or, alternatively, an evidentiary hearing. As grounds 

for relief, Appellant argues that materials obtained through discovery in two 

civil actions filed against the City of Pittsburgh show that witnesses who 

testified on behalf of the Commonwealth committed perjury at Appellant’s 

trial. See Application for Relief, 3/13/15, at ¶ 16. Appellant’s application 

did not attach the discovery materials but, instead, attached a confidentiality 

agreement executed by Appellant and a representative of the City of 

Pittsburgh. According to the confidentiality agreement, Appellant may use 

the materials in litigation so long as he gives 20 days’ notice to the City.

(Footnote Continued Next Page)
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The trial court summarized the testimony introduced at trial as follows:

The evidence adduced at trial demonstrated that Lorenz 

Neureuter was operating his motorcycle on Baum Boulevard in 

the Bloomfield section of the City of Pittsburgh on October 5, 

2011 during the evening hours. He was travelling approximately 

30 miles per hour in an area that had a speed limit of 35 miles 

per hour. As he was heading west in the curb lane on Baum 

Boulevard, a car in the oncoming lane operated by [Appellant] 

began swerving out of control across the double yellow line in 

the center of the road. [Appellant’s] vehicle crossed into the left 

lane and then the curb lane of oncoming traffic and collided with 

Mr. Neureuter’s motorcycle. Mr. Neureuter was thrown from the 

motorcycle. He was wearing a helmet, boots and a jacket. He 

was not able to get up from the street and he could not move his 

left arm and left leg. His motorcycle caught fire. The front fork 

and wheel of the motorcycle became separated from the 

motorcycle. Soon, help arrived and he was taken to UPMC 

Presbyterian Hospital. He sustained a compound fracture of the 

left tibia, a shattered, broken left elbow, a dislocated leg, a 

fractured hip and various other injuries. He remained at UPMC 

Presbyterian hospital for a week. He spent an additional three 

(Footnote Continued) _______________________

This Court recognizes a litigant’s right to raise after-discovered evidence 

during the direct appeal process. See Commonwealth v. Perrin, 108 A.3d 

50 (Pa. Super. 2015); Pa.R.Crim.P. 720, Comment (“[A]fter-discovered 

evidence discovered during the direct appeal process must be raised 

promptly during the direct appeal process, and should include a request for a 

remand to the trial judge....”). We also recognize that,

To obtain relief based on after-discovered evidence, appellant 

must demonstrate that the evidence: (1) could not have been 

obtained prior to the conclusion of the trial by the exercise of 

reasonable diligence; (2) is not merely corroborative or 

cumulative; (3) will not be used solely to impeach the credibility 

of a witness; and (4) would likely result in a different verdict if a 

new trial were granted.

Perrin, supra. Because Appellant has not attached the newly-discovered 

materials to his petition, and since he expressly averred that the materials 

will be used for the purpose of impeachment, we deny Appellant’s 

application for relief.
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weeks in a nursing home. As of the time of trial, Mr. Neureuter 

had residual effects of his injuries. He has permanent limited 

range of motion in his left elbow, he has a loss of feeling in two 

fingers and he walks with a limp. He is no longer able to run. 

Mr. Neureuter did not consume any alcohol, drugs or prescribed 

medication prior to the incident.

Officer William Kunz of the City of Pittsburgh Bureau of Police 

testified that he responded to the scene. Officer Kunz has made 

between 200 and 250 arrests for DUI. Upon arriving at the 

scene, he identified [Appellant] as the driver of the car involved 

in the accident. He approached [Appellant, who] appeared 

confused and disoriented. His eyes were glassy, bloodshot and 

unfocused. He noted an odor of alcohol emanating from 

[Appellant]. [Appellant] advised Officer Kunz that he was 

driving eastbound on Baum Boulevard and he attempted to pass 

a vehicle in front of him by entering the left passing lane. He 

related to Officer Kunz that as he began to pass the vehicle, he 

felt an impact. He wasn’t sure he hit something or if something 

hit him. Officer Kunz looked into [Appellant’s] car, which was 

parked down the street, and he observed a cardboard container 

for a six-pack of beer and there were three loose bottles of beer 

in the vehicle which were cold. Due to the fact that an accident 

reconstruction team was called to the scene and Officer Kunz 

believed somebody else would be administering them, field 

sobriety tests were not immediately requested. Accident 

reconstruction indicated that the collision occurred in the west 

bound curb lane of Baum Boulevard and that [Appellant’s] car 

had been sliding sideways across Baum Boulevard prior to the 

accident. This conclusion was consistent with Mr. Neureuter’s 

testimony.

City of Pittsburgh Police Officer Glen Aldridge responded to the 

scene. Officer Aldridge testified that he had made approximately 

200 prior DUI arrests. Officer Aldridge was qualified as an 

expert in accident reconstruction and an expert in alcohol 

recognition. In addition to investigating the actual accident to 

perform a reconstruction of the accident, Officer Aldridge 

encountered [Appellant]. [Appellant’s] eyes were glassy and 

glazed and he had alcohol on his breath. He observed 

[Appellant’s] gait as he walked and it appeared wobbly. Based 

on his observations of [Appellant], he believed [Appellant] was 

under the influence of alcohol and that he was not able to safely 

operate a motor vehicle due to the effects of the alcohol. During 
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the course of his interaction with [Appellant], [Appellant] 

indicated to Officer Aldridge that he [Appellant] didn’t know what 

happened to cause the accident.

City of Pittsburgh Police Officer Kevin Walters testified as an 

expert in accident reconstruction and in alcohol recognition. He 

has made numerous DUI arrests and has observed over 100 

people to determine whether they are under the influence of 

alcohol. He responded to the accident scene and did encounter 

[Appellant]. He observed [Appellant’s] bloodshot and glassy 

eyes. [Appellant] appeared to be slow in answering questions 

posed to him by Officer Walters. [Appellant] swayed as he 

stood. Officer Walters believed that [Appellant] was under the 

influence of alcohol and was not able to safely operate a motor 

vehicle.

[Appellant’s] blood alcohol reading was .139[% whole blood 

ethanol], at 1:10 a.m., roughly over an hour after the accident.

[Appellant] presented the testimony of an expert in accident 

reconstruction. The expert testified that there could have been 

other causes of the accident unrelated to [Appellant’s] alcohol 

consumption, namely an underinflated tire. He could not, 

however, offer any opinion as to whether alcohol played any role 

in the accident in this case.

Additionally, [Appellant] presented the testimony of his mother. 

She testified that she received a phone call from [Appellant] at 

approximately midnight on [October 6, 2011] indicating that he 

had been in an accident. His mother and father appeared at the 

accident scene at approximately 12:15 a.m. She testified that 

[Appellant] was excited, not slurring his words, and that she did 

not smell an odor of alcohol on him and that he did not exhibit 

any signs of intoxication.

Trial Court Opinion, 7/18/14, at 1-4.

The procedural history of this case is as follows. Following the 

accident, the Commonwealth charged Appellant with: one count of 

aggravated assault by vehicle while driving under the influence (AA-DUI), 75 

Pa.C.S.A. § 3735.1(a); driving under the influence of alcohol resulting in 
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bodily injury, 75 Pa.C.S.A. § 3804(b); driving under the influence of 

alcohol – blood alcohol .10% to less than .16%, 75 Pa.C.S.A. § 3802(b); 

driving under the influence of alcohol – general impairment, 75 Pa.C.S.A. 

§ 3802(a)(1); reckless driving, 75 Pa.C.S.A. § 3736(a); and, driving on the 

right side of roadway, 75 Pa.C.S.A. § 3301(a).

Appellant proceeded to a bench trial on January 18, 2013. On January 

23, 2013, at the conclusion of trial, the court acquitted Appellant of reckless 

driving but found him guilty of all other offenses. On June 24, 2013, 

Appellant received an aggregate sentence of 18 months of intermediate 

punishment, followed by four years’ probation.

On July 17, 2013, the trial court denied the Commonwealth’s request 

for restitution beyond a nominal amount and granted Appellant a 60-day 

extension of time to file post-sentence motions. The trial court also 

extended the period for deciding post-sentence motions by 30 days. Trial 

counsel obtained leave to withdraw on September 9, 2013 and Appellant 

filed pro se post-sentence motions on September 16, 2013. The trial court 

denied Appellant’s motions by order dated December 16, 2013. Appellant 

filed a pro se notice of appeal on January 2, 2014. Thereafter, pursuant to 

an order of court under Pa.R.A.P. 1925(b), Appellant filed a concise 

statement of errors complained of on appeal on January 23, 2014. The trial 

court filed its opinion on July 18, 2014.

Appellant’s brief raises the following questions for our review:
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Was the evidence submitted at trial insufficient as matter of law 

to sustain Appellant’s conviction for [AA-DUI] pursuant to 75 

Pa.C.S.A. § 3735.1?

Did the [t]rial [c]ourt commit an error of law or abuse of 

discretion by improperly shifting the burden of proof to Appellant 

to disprove that his alleged alcohol consumption was the cause 

of the victim’s injuries, where the Commonwealth failed to 

establish a prima facie case that Appellant’s alleged alcohol 

consumption was the cause of the victim’s injuries?

Did the [t]rial [c]ourt commit an error of law by convicting 

Appellant of [AA-DUI] pursuant to 75 Pa.C.S.A. § 3735.1, while 

acquitting Appellant of the lesser-included offense of [r]eckless 

[d]riving pursuant to 75 Pa.C.S.A. § 3736(a), thereby 

constituting an inconsistent verdict mandating a judgment of 

acquittal on the [AA-DUI] charge?

Did the Trial Court commit an error of law or abuse of discretion 

by failing to order a new trial on the basis of the 

Commonwealth’s repeated and bad faith discovery violations, 

including but not limited to inexcusably failing to produce the 

Commonwealth’s toxicologist expert report until sixteen (16) 

days after the Trial Court-ordered deadline and less than a 

month before trial, and failing to disclose, until the middle of 

trial, two critical accident scene measurements that Appellant’s 

then-counsel had repeatedly requested and that Appellant’s 

expert required prior to trial to complete expert analysis and 

reconstruction of the accident?

Appellant’s Brief at 4.

Appellant’s first issue alleges that the evidence introduced by the 

Commonwealth was legally insufficient to support his conviction for AA-DUI. 

Specifically, Appellant’s challenge asserts that the Commonwealth failed to 

prove that his intoxication caused the victim’s injuries. Appellant’s second 

claim contends that, because the Commonwealth failed to establish a prima 

facie case that Appellant’s alcohol consumption caused the victim’s injuries, 
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the trial court erroneously shifted the burden of proof to Appellant to 

disprove that alcohol consumption harmed the victim. Since these claims 

are logically related, we dispose of them in a single discussion.

Our standard of review on a challenge to the sufficiency of the 

evidence is well settled.

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.

Commonwealth v. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014) 

(emphasis in original).

The statutory definition of AA-DUI is as follows:

§ 3735.1. Aggravated assault by vehicle while driving 

under the influence

Offense defined.--Any person who negligently causes 

serious bodily injury to another person as the result of a 

violation of section 3802 (relating to driving under influence 

of alcohol or controlled substance) and who is convicted of 
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violating section 3802 commits a felony of the second 

degree when the violation is the cause of the injury.

75 Pa.C.S.A. § 3735.1.

Appellant’s sufficiency claim does not dispute the severity of the 

victim’s injuries or the sufficiency of the evidence related to his intoxication. 

Instead, Appellant alleges that the Commonwealth failed to prove that 

alcohol-related impairment caused the victim’s injuries.

This Court has previously observed that,

The Crimes Code provides that the negligence required for 

commission of the offense of aggravated assault by vehicle DUI 

is present “when [a person] should be aware of a substantial and 

unjustifiable risk ... [that is] of such a nature and degree that 

the actor's failure to perceive it ... involves a gross deviation 

from the standard of care that a reasonable person would 

observe in that actor's situation.” 

Commonwealth v. Miller, 810 A.2d 178, 181 (Pa. Super. 2002) (internal 

quotation and punctuation marks in original), appeal denied, 825 A.2d 638 

(Pa. 2003); see also 18 Pa.C.S.A. § 302(b)(4). “Criminal responsibility is 

properly assessed against one whose conduct was a direct and substantial 

factor in producing the [injury] even though other factors combined with 

that conduct to achieve the result.” Commonwealth v. Ketterer, 725 A.2d 

801, 806 (Pa. Super. 1999) (citation omitted). “As long as the defendant's 

conduct started the chain of causation which led to the victim's injuries, 

criminal responsibility may properly be found.” Id. The role of the 

accused’s inebriation in causing a traffic collision is an issue that the 

factfinder may resolve. Miller, 810 A.2d at 182.
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Our review of the certified record in this case convinces us that the 

Commonwealth introduced sufficient evidence to establish, beyond a 

reasonable doubt, that Appellant committed the offense of AA-DUI. Three 

Pittsburgh police officers experienced in conducting alcohol-related traffic 

arrests encountered Appellant at the accident scene. Each officer testified 

that Appellant emitted an odor of alcoholic beverage, that his speech was 

slurred, that his eyes were glassy, bloodshot and unfocused, and that he 

was unstable on his feet. One of the officers observed a cardboard six-pack 

container in Appellant’s vehicle and three loose beer bottles, which were cold 

to the touch. Appellant eventually consented to a blood draw that revealed 

a blood alcohol level of .139%.

The evidence, including Appellant’s own statements, also established 

that Appellant encountered a parked car while he was driving in an easterly 

direction on Baum Boulevard.2 While attempting to circumvent this obstacle, 

Appellant’s car skidded into an oncoming traffic lane where he collided with 

the victim’s motorcycle. Combining the testimony of the officers with the 

evidence relating to the reconstruction of the accident, the trial court had 

ample evidence from which to conclude that Appellant’s intoxication 

impaired his ability perform a routine traffic maneuver, which ultimately 

____________________________________________

2 Although the accident occurred at night, the record shows that the road 

surface where the collision occurred is straight and flat. There is no 

evidence that Appellant’s vehicle encountered a mechanical problem.
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caused the collision with the victim’s motorcycle. We perceive no error in 

the trial court’s causation analysis, as we have repeatedly held that a 

factfinder may infer that alcohol diminished a motorist’s judgment and ability 

to perceive, process, and adapt to changing road conditions and traffic 

hazards. Cf. Miller, supra, Ketterer, supra, and Commonwealth v. 

Johnson, 545 A.2d 349 (Pa. Super. 1988). Since we have determined that 

the Commonwealth proved causation beyond a reasonable doubt, we agree 

with the trial court that Appellant’s burden-shifting claim is frivolous.

In his third claim, Appellant asserts that, because the trial court 

acquitted him of reckless driving, the verdict rendered against him in this 

case was inconsistent and, therefore, his conviction on the charge of AA-DUI 

must be discharged. This claim is meritless.

In rejecting this claim, the trial court aptly distinguished the mens rea

for reckless driving from the mens rea for AA-DUI. See Trial Court Opinion, 

7/18/14, at 13-14. To prove reckless driving, the Commonwealth must 

demonstrate beyond a reasonable doubt that Appellant operated his vehicle 

with a wanton and willful disregard for the safety of others. 75 Pa.C.S.A. 

§ 3736; Commonwealth v. Billick, 830 A.2d 998, 1001-1002 (Pa. Super. 

2003). This standard entails a showing of recklessness or, in other words, a 

conscious disregard of a substantial and unjustifiable risk. Id.; 18 Pa.C.S.A. 

§ 302(b)(3). By contrast, the mens rea for AA-DUI is criminal negligence. 

This standard requires proof that the defendant should have been aware of a 
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substantial and unjustifiable risk. See Miller, 810 A.2d at 181. Since the 

trial court found that Appellant should have been aware of the risks that his 

conduct involved, and not that Appellant acted with conscious disregard of a 

substantial and unjustifiable risk, the verdicts rendered in this case were not 

inconsistent. Nevertheless, even if the verdicts were inconsistent, they 

would not be subject to attack so long as sufficient evidence supported the 

conviction. See Commonwealth v. Miller, 35 A.3d 1206, 1208 (Pa. 2012) 

(“acquittal cannot be interpreted as a specific finding in relation to some of 

the evidence, and that even where two verdicts are logically inconsistent, 

such inconsistency alone cannot be grounds for a new trial or for reversal”).

Appellant’s final claim alleges that he is entitled to a new trial because 

of the Commonwealth’s discovery violations. In support of this claim, 

Appellant points out that the Commonwealth failed to produce the report of 

its expert toxicologist until December 21, 2012, in violation of an order 

directing the parties to exchange expert reports no later than December 5, 

2012. Appellant also notes that the Commonwealth failed to produce two 

accident scene measurements until the middle of trial. These contentions 

merit no relief as Appellant has failed to show an abuse of discretion on the 

part of the trial court.

Decisions involving discovery matters are within the sound discretion 

of the trial court and will not be overturned absent an abuse of that 

discretion. Commonwealth v. Hemingway, 13 A.3d 491, 502 (Pa. Super. 
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2011), appeal denied, 24 A.3d 864 (Pa. 2011). An abuse of discretion is not 

established unless the defendant can show that he was prejudiced by a 

discovery ruling. See Commonwealth v. Williams, 863 A.2d 505, 516 

(Pa. 2004).

In rejecting Appellant’s claim with respect to the Commonwealth’s 

toxicology expert, the trial court explained that, because of the untimely 

nature of the Commonwealth’s disclosure, the toxicologist was precluded 

from testifying “about the effect of alcohol on the brain and the effects of 

alcohol as applied to the facts of this case.” Trial Court Opinion, 7/18/14, at 

12-13. Nevertheless, the trial court permitted the toxicologist to testify 

about Appellant’s blood alcohol level since the Commonwealth produced that 

information during pretrial discovery. Thus, the trial court determined that 

there was no discovery violation as to Appellant’s blood alcohol reading. We 

agree with the trial court’s assessment and discern no abuse of discretion in 

the court’s treatment of the permitted scope of the toxicologist’s testimony.

We also conclude that the trial court did not abuse its discretion in 

refusing to grant a new trial based upon the untimely production of the 

accident scene measurements. At trial, the Commonwealth stipulated that it 

did not intend to rely on excessive speed as a causative factor in the 

accident. Thus, while the trial court agreed that the late disclosure 

constituted a surprise, the court declined to grant relief because Appellant 

did not demonstrate actual harm based upon the prosecutor’s conduct. On 
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appeal, Appellant has not articulated how his trial strategy would have been 

different if the Commonwealth produced the accident scene measurements 

earlier. Therefore, because Appellant has not demonstrated how he was 

harmed by the trial court’s discovery ruling, we decline to grant the 

requested relief.

Judgment of sentence affirmed. Application for relief denied. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/2015