J

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

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID NELSON SPERAW

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

PENNSYLVANIA

No. 1381 MDA 2023 Appeal from the Judgment of Sentence Entered August 29, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- CR

- 0006823

- 2018

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: MAY 21, 202 4

David Nelson Speraw (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of driving under the influence of

alcohol or controlled substance (DUI)

— general impairment , 1 and accidents

involving damage to attended vehicle or property ( AID ) ; 2 the trial court

separately convicted him of three summary offenses. 3 As the trial court

concedes it imposed an illegal sentence on Appellant’s AID conviction , w e

_________________ __________ ______ ____ _______

1 75 Pa.C.S.A. § 3802(a)(1)

.

2 Id. § 3743(a).

3 Id. §§ 1543(b)(1) (driving while operat ing privilege is suspended or revoked) , 3744(a) (duty to give information and render aid) , 3745(a) (accidents involving damage to unattended vehicle or property). We hereinafter collectively refer to these offenses as “the summary convictions.”J

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vacate his judgment of sentence , in part, and remand for resentencing. In all

other respects, we affirm.

The trial court detailed the underlying facts in its opinion:

Martina Gustin testified that on August 21, 2018, she was stopped at a traffic light at the intersection of Progress Ave [nue] and Union Deposit Road [in Susquehanna Townsh ip ] , returning to work at about 12:45 p.m. N.T., 5/23

- 24 /23, p. 40

- 41

.... Ms. Gustin looked in her rear

- view mirror and saw a white car driving fast and zig

- zagging in and out of lanes. Id. at 42. She was hit by the car [, a white 2006 Mercury Montego ( the car ) , ] from behind; however, the car continued to travel and [struck] other cars before it hit a curb and ultimately hit a porch of a residence. Id. at 43. Ms. Gustin pulled over by where the car had come to [] rest after hitting the porch and saw a man get out of the car. Id. She explained that the man was hopping on one foot and had
a [medical] boot on the other foot; he appeared to be injured. Id. Ms. Gustin did not see anyone else get out of the car. Id. at 46. During cross

- examination, Ms. Gustin acknowledged that [in] her testimony at [Appellant’s] preliminary hearing, she stated that she did not see the man get out of the car following the crash, but assumed the man she saw had been driving the car. Id. at 48. Ms. Gustin saw the man as he was leaving the scene and going towards an alley[,] where he ultimately disappeared. Id. at 50.

* * *

Sheila Jones testified that she [was inside her house at the time of the collision,] heard a crash and felt her house shake. Id. at 21. She saw that a car had smashed into her neighbor’s house. Id. She called out to a man “ hobbling ” down the alley. Id. She took pictures of the man [,] who was wearing a T

- shirt that said “David” on it. Id. at 22. Further, [ Susquehanna Township Police] Officer Clee Til [] man [(Officer Tilman)] testified that shortly after the crash [, he immediately responded to the scene and] encountered a man matching the [police broadcast] description of the person involved in the crash. Id. at 72. This occurred about two blocks from the crash site. Id. at 74.

Trial Court Opinion, 12/1/23, at 4

- 5 (citations and formatting modified).J

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- 3

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Officer Tilman testified Appellant “ran” towards him upon noticing his

patrol vehicle

. N.T., 5/23

- 24/23, at 74. Officer Tilman stated that Appellant,

[u] pon running up to me, [] looked right and left, came directly to my position, [and] I exited my patrol car. Then he immediately put his hands behind his back and I asked why he was putting his hands behind his back. He said because he recently got into an accident and ran on foot

.
Id. at 75. Officer Tilman further testified that Appellant , prior to running

away, verbally identified himself by stating his f irst and last name. Id.
The following exchange occurred upon the prosecutor’s questioning of

Officer Tilman:

Q. [The Commonwealth:] Did you observe any indications that [Appellant] was under the influence?

A. [Officer Tilman:] I did.

Q. What, if anything, did you observe?

A. That [Appellant] was sweating profusely. While he was sweating I could smell the alcohol coming off of his person. I could also see bloodshot and glassy eyes

....
Id. at 75

- 76. The direct e x amination of Officer Tilman continued:

Q. Based on your observations and everything that you just laid out for us, did you believe that [Appellant] was under the influence?

A. I do.

Q. What do you believe he was under the influence of?

A. Alcohol.J

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Id. at 76. Officer Tilman explained that he did not ask Appellant to perform

field sobriety tests, “ due to the fact that he stated that he was injured from

the accident itself .” Id.

Finally, Officer Tilman testified that he requested that Appellant submit

to a blood test, and advised him of his rights and the Penn

- DOT DL

- 26 implied

consent chemical testing w arnings form. Id. at 77. Appellant refused to

consent to a blood draw. Id. at 76

- 77

. Appellant briefly testified a s the sole defense witness

. Appellant denied

being the operator of the car

. N.T., 5/23

- 24/23, at 93

- 94

. Appellant’s counsel

questioned him on direct examination as follows:

Q. [Defense Counsel:] Now, I want to bring your attention to the actual day of the incident. There ’ s some testimony that you were seen limping away from the car accident. Why exactly was it that you were limping that day?

A. [Appellant:] I had a torn [ anterior cruciate ligament]

. Q. And were you on any kind of medications for that injury?

A. Yes.

Q. Why

– A. I just had surgery. So I was medicated.

Q. So it would have been unsafe at that point for you to be driving?

A. Yes.
Q. After being in the accident why did you run away from the accident?J

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A. Well, I was sleeping at the time and I don ’ t even really recall what happened. I just

-- my fight or flight kicked in and I saw my friend take off and

... I just took off.

Id

. 4

On cross

- examination, Appellant conceded he (1) was inside the car at

the time of the collision ; (2) had previously purchased the car for his daughter ;
and (3) was depicted on surveillance video taken near the scene of the

collision

. Id. at 95

- 98.

A t the close of a bifurcated trial, the jury found Appellant guilty of DUI

and AID, and the trial court found him guilty of the summary convictions

. The

trial court deferred sentencing for the preparation of a pre

- sentence

investigation report.

On August 29, 2023, the trial court sentenced Appellant 5 to one to three

years in prison for his DUI conviction

. 6 With respect to Appellant’s AID

conviction, the trial sentenced him to 6 to 24 months in prison , to run
concurrently with the sentence imposed for DUI. The court imposed no further

penalty f or Appellant’s summary convictions

.

_________________ __________ ______ ____ _______

4 Appellant never identi fied the driver of the car , or the “ friend ” whom Appellant referenced in his testimony

.

5 The trial court also ordered Appellant to pay fi nes and costs on his (1) DUI conviction of $1,500 ; and (2) summary convictions of $1,050. The court also ordered Appellant to pay approximately $4,000 in restitution.

6 At sentencing, the Commonwealth observed that Appellant’s DUI conviction constituted his third DUI offense in ten years , and his fourth lifetime DUI. N.T. , 8/29/23, at 3.J

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-

On September 8, 2023, Appellant timely filed a p ost

- s entence m otion

(PSM) , through his public defender counsel. Appellant challeng ed the verdicts

as being against the weight of the evidence

. 7 See PSM, 9/8/23, ¶¶ 4

- 9.

Appellant claimed the verdicts were predicated “on evidence so unreliable and

contradictory that it shocks conscious [ sic ] that [Appellant] was the driver. ”

Id. ¶ 6. According to Appellant, Gustin, “the main witness who stated

[Appellant] was the driver[,] was so contradictory and hyperbolic that to credit

her testimony shocks the conscious [ sic ].” Id. ¶ 9; see also id. ¶ 8(d )

(“During trial, Ms. Gustin stated she knew that [Appellant] was the striking

driver[,] when she had [previously] stated she had never seen him prior to

the initial [preliminary] hearing. ”)

. The trial court denied Appellant’s PSM on September 11, 2023 , without

holding a hearing. T his timely appeal followed. 8 Appellant and the trial court

have complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

_________________ __________ ______ ____ _______

7 We note Appellant’s weight challenge appeared under the heading, “Motion for J udgment of Acquittal.” PSM, 9/8/23, at 3 (capitalization modified); but see also id. at 5 (stating that Appellant seeks the relief of, inter alia , “a new trial”). Compare Pa.R.Crim.P. 607(A) (providing the remedy for a challenge to the weight of the evidence is a new trial) with Pa.R.Crim.P. 606 (providing the remedy for a challenge to the sufficiency of the evidence is a judgment of acquittal ).

8 Appellant also filed a m otion for bail p ending a ppeal, which the trial court denied on October 11, 2023

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A. Whether the trial court erroneously sentenced [Appellant] to two years of [prison] for an offense graded as a misdemeanor of the third degree?

B. Whether the trial court committed an abuse of discretion in denying [Appellant’s] weight of the evidence challenge when a significant detail regarding identity was presented?
Appellant’s Brief at 6.

Appellant first argues the trial court imposed an unlawful sentence for

his conviction of AID

. Id. at 13

- 14

. T he trial court concedes it s err or in this

regard

. See Trial Court Opinion, 12/1/23, at 2

- 3 (discussed infra ). T he

Commonwealth agrees. See Commonwealth Brief at 4 (“The Commonwealth

concedes that the sentence of two years exceeds the statutory maximum for

a third [

- ] degree misdemeanor.”).

Our standard of review is well settled: “ The determination as to whether

the trial court imposed an illegal sentence is a question of law; our standard

of review in cases dealing with questions of law is plenary. ” Commonwealth

v. Carrera , 289 A.3d 1127, 1131 n.6 (Pa. Super. 2023) (citation omitted).

“ If no statutory authorization exists for a particular sentence, that sentence is

illegal and subject to correction. ” Commonwealth v. Hughes , 986 A.2d 159,

160 (Pa. Super. 2009) (citation omitted).

Instantly, Appellant argues the trial court imposed an illegal sentence

on his AID conviction , graded as a third

- degree misdemeanor, where the court

imposed “ a maximum penalty of 24 months , which exceeds the statutory

limit of the offense

. ” Appellant’s Brief at 14 (emphasis added )

. AppellantJ

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correctl y cites 75 Pa.C.S. A. § 3743(b) , the penalties provision of the AID

statute , which provides as follows: “ Any person violating this section commits

a misdemeanor of the third degree, punishable by a fine of $2,500 or
imprisonment for not more than one year , or both. ” Id. (emphasis added);
Appellant’s Brief at 14. Appellant also cites 18 Pa.C.S. A. § 1104(3) ( govern ing

sentences for misdemeanor offenses ) ; it provides , A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than :

* * *

One year in the case of a misdemeanor of the third degree.

Id. (emphasis added); Appellant’s Brief at 14.

T he trial court concede s in its opinion that it imposed an illegal sentence
on Appellant’s AID conviction, citing section 3743(b) , supra

. Trial Court

Opinion, 12/1/23, at 2. The court stated,

Appellant is correct that the sentence imposed was illegal and, therefore, [the trial court] request[s] that the [Superior] Court vacate the judg[]ment of sentence solely on that basis, and remand for resentencing.

Id. at 2

- 3.
Based on the foregoing , it is undisputed Appellant’s sentence is illegal

. Hughes , 986 A.2d at 160. Upon review, we agree. We therefor e vacate
Appellant’s judgment of sentence for AID and remand for resentencing ; we
leave Appellant’s DUI sentence intact. See Commonwealth v. Ali , 197 A.3d

742, 759 (Pa. Super. 2018) (“[A] vacated sentence is a legal nullity.

...J

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[W] here the appellate [court’s] disposition [] upset [s] the trial court ’ s original

sentencing scheme, remanding for a new sentencing proceeding is

appropriate. ”).

We next address Appellant’s second issue, where he claims the trial

court abused its discretion in denying without a hearing his PSM and weight

of the evidence claim

. See Appellant’s Brief at 14

- 19. Appellant “ points to
the only identifying witness, [] Gustin, as being inherently unreliable given

her testimony, how she testified, and her embellishment. ” Id. at 17

(emphasis in original). Acc ording to Appellant,

Ms. Gustin editorialized during trial, did not remember her prior testimony and ultimately acknowledged her identification was based solely on assumptions.

Id. at 1 8 (citing N.T. 5/23

- 24/23, at 44, 48

- 49).

Appellant further argues
[t] he case shows that [he] was involved in the crash, but his specific involvement is unknown. Thus, any determination, on this record, that he was the driver is spurious.

Id. at 19

.

T he Commonwealth counters the trial court properly exercised its
discretion in rejecting Appellant’s weight challenge

. See Commonwealth Brief

at 4

- 5. The Commonwealth states, “ although there was a putative

discrepancy with [Gustin’s] preliminary hearing testimony, [] the jury was

within its province to resolve ” any conflicts

. Id. at 4. Further, “police

encountered Appellant near the scene and matching the description [of theJ

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driver of the car] , and he admitted to being in the accident.” Id. at 5
(capitalization modified).
“Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict is against the
weight of the evidence.” Commonwealth v. Watkins , A.3d , 800 MDA

2023 (Pa. Super. April 19, 20 2 4 ) (citation omitted). “ [ A ] weight of the

evidence claim concedes that the evidence is sufficient to sustain the verdict

but seeks a new trial on the grounds that the evidence was so one

- sided or
so weighted in favor of acquittal that a guilty verdict shocks one’s sense of

justice.” Commonwealth v. Landis , 277 A.3d 1172, 1183 (Pa. Super. 2022)

(citation omitted).

Our Supreme Court has emphasized that , [b] ecause the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination of whether th e verdict is against the weight of the evidence. One 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 g ranted in the interest of justice.

Commonwealth v. Widmer , 744 A.2d 745, 753 (Pa. 2000) ( emphasis

added; citation s omitted) ; see also Commonwealth v. Talbert , 129 A.3d

536, 545 (Pa. Super. 2015) (stating the “weight of the evidence is exclusively

for the finder of fact[,] who is free to believe all, none, or some of the evidence
and to determine the credibility of the witnesses.” (citation omitted) )

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Instantly, in i ts opinion, the trial court concluded it properly exercised

its discretion in denying Appellant’s PSM and weight claim, where “ the record
overwhelmingly supports the jury’s determination ” of his guilt. Trial Court

Opinion, 12/1/23, at 5. The court elaborated , with respect to Appellant’s

challenge to the credibility of Gustin :

During cross

- examination, Ms. Gustin acknowledged that during her testimony at a preliminary hearing, she stated that she did not see the man get out of the car following the crash, but assumed the man she saw had been driving the car. [N.T., 5/23

- 24/23,] at 48. Ms. Gustin saw the man as he was leaving the scene and going towards an alley[,] where he ultimately disappeared. Id. at 50.

When questioned about the testimony she gave during the preliminary hearing in this matter, Ms. Gustin explained that she did not remember her testimony. Id. at 48. Further, when asked whether reviewing her testimony would refresh her recollection, she answered that it did not. Id. at 49. Ms. Gustin explained that she assumed that the man she saw leaving the scene was the man who had been operating the vehicle. In any event, where evidence is conflicting, the issue of credibility of witnesses and a
res olution of the conflict is a matter solely of the trier of fact. Commonwealth v. Russell , 665 A.2d 1239, 1247 ([Pa. Super.] 1995). Here, it is clear that the jury accepted Ms. Gustin’s conclusion that the man she saw leaving the scene, who was identified as Appellant, had been the operator of the vehicle. Additionally, the other evidence presented at trial indicating that Appellant was the driver of the ve hicle corroborated Ms. Gustin’s testimony[,] and was also accepted by the jury

. Trial Court Opinion, 12/1/23, at 4

- 5 (emphasis added) ; see also id. ( detailing

the above

- described testimonies of Officer Tilman and Jones)

. Upon review of the record and Appellant’s arguments, we discern no
abuse of the trial court’s discretion in rejecting Appellant’s weight claim. SeeJ

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id. It was within the f act

- finder ’s purview to assess the credibility of the

witnesses, and to “ believe all, none, or some of the evidence....” Talbert ,
129 A.3d at 545. We decline Appellant’s invitation to act as fact

- finder,

reweigh the evidence, and disturb credibility findings based on a cold record.

See Commonwealth v. Sanchez , 262 A.3d 1283, 1288

- 89 (Pa. Super.

2021) ( “[I] t is not the function of the appellate court to substitute its judgment

based on a cold record for that of the trial court. The weight to be accorded

conflicting ev idence is exclusively for the fact finder, whose findings will not

be disturbed on appeal if they are supported by the record.” (citations

omitted))

. Judgment of sentence vacated in part ; case remanded for resentencing

as to Appellant’s AID conviction

. Judgment of sentence affirmed in all other

respects. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 05/21/2024