J-S14040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID NELSON SPERAW 

Appellant

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 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, 2024

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, we 

____________________________________________

1 75 Pa.C.S.A. § 3802(a)(1).

2 Id. § 3743(a).

3 Id. §§ 1543(b)(1) (driving while operating 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.”
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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 Township], 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).
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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 first 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 examination 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.
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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 warnings form. Id. at 77. Appellant refused to

consent to a blood draw. Id. at 76-77. 

Appellant briefly testified as 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?
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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.

At 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 Appellant5to 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 for Appellant’s summary convictions.

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4 Appellant never identified the driver of the car, or the “friend” whom

Appellant referenced in his testimony.

5 The trial court also ordered Appellant to pay fines 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.
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On September 8, 2023, Appellant timely filed a post-sentence motion

(PSM), through his public defender counsel. Appellant challenged 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. This timely appeal followed.8 Appellant and the trial court 

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

Appellant presents two issues for our review:

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7 We note Appellant’s weight challenge appeared under the heading, “Motion 

for Judgment 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 motion for bail pending appeal, 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. The trial court concedes its error in this 

regard. See Trial Court Opinion, 12/1/23, at 2-3 (discussed infra). The 

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). Appellant
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correctly 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) (governing

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. 

The trial court concedes 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 therefore 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. ...
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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). According 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 18 (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.

The 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 the 
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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, 2024) (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 the 

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 granted in the interest of justice.

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

added; citations 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 its 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 

resolution 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 vehicle 

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. See 
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id. It was within the fact-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 evidence 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