J-A22035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NATHAN RICHARD WILSON,

Appellant No. 2117 MDA 2014

Appeal from the Judgment of Sentence August 4, 2014

in the Court of Common Pleas of York County

Criminal Division at No.: CP-67-CR-0004392-2013

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2015

Appellant, Nathan Richard Wilson, appeals from the judgment of 

sentence imposed after his conviction, following a jury trial, of driving under 

the influence (DUI) (general impairment), second offense; DUI (controlled 

substance), second offense; DUI (controlled substance combination alcohol 

and drug), second offense; failure to obey traffic control devices; and 

endangering the welfare of a child.1 We affirm.

We take the following facts and procedural history from the trial 

court’s February 6, 2015 opinion and our own independent review of the 

record. On May 6, 2013, at approximately 11:40 p.m., Penn Township 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(a)(1), (d)(2), (3), 3111(a), and 18 Pa.C.S.A. § 

4304(a)(1), respectively.
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Police Officer Joseph O’Brien initiated a traffic stop when a gray Toyota 

Camry made an illegal left turn and ignored “Do Not Enter” and “No Left 

Turn” signs. Once Officer O’Brien stopped the vehicle, Appellant, the driver, 

stumbled and almost fell out of it. Officer O’Brien ordered Appellant back 

into the car. Upon approaching, Officer O’Brien detected an odor of alcohol, 

and observed a female passenger in the front seat and an infant in a car 

seat in the rear. Appellant exhibited slow and slurred speech, his eyes 

seemed heavy, he admitted to consuming beer earlier in the evening, and he 

performed poorly on field sobriety tests. Penn Township Police Sergeant 

Jedadiah Shearer arrived on the scene and conducted the Romberg balance 

test on Appellant. Sergeant Shearer believed that Appellant was on a 

depressant.

The police arrested Appellant and transported him to Hanover General 

Hospital for a blood draw. After receiving Miranda2 warnings, Appellant 

admitted to taking several pills: Aleve; Xanax; and an unknown yellow pill, 

later determined to be headache medicine. He remained silent for over ten 

minutes and then refused to have his blood drawn.

On July 25, 2013, the Commonwealth filed an information charging 

Appellant with failing to obey traffic control devices, endangering the welfare 

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966).
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of a child, and three counts of DUI. Appellant’s first jury trial resulted in a 

mistrial on March 7, 2014.

On June 5, 2014, another jury convicted Appellant of all five counts 

and the trial court ordered a pre-sentence investigation. On August 4, 2014, 

the court sentenced Appellant to an aggregate term of not less than six 

months’ nor more than twelve months’ incarceration, a $2,500.00 fine, and 

one hundred hours of community service.3 Appellant timely filed postsentence motions on August 6, 2014.

The court denied all but one of Appellant’s post-sentence motions on 

September 26, 2014.4 On December 12, 2014, Appellant requested an 

order denying the remaining post-sentence motion and filed a notice of 

appeal. On December 18, 2014, the court denied the remaining postsentence motion by operation of law and ordered Appellant to file a Rule 

1925(b) statement.5

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3 The court originally sentenced Appellant on July 29, 2014. (See N.T. 

Sentence, 7/29/14, at 8-9). On August 4, 2014, at the Commonwealth’s 

request, the court amended the sentence to merge the sentences for counts 

one (DUI: general impairment) and four (DUI: controlled substance) into the 

sentence for count five (DUI: controlled substance combination alcohol and 

drug). (See Motion to Amend Sentence, 8/01/14; Order, 8/04/14).

4 The court denied Appellant’s post-sentence motions on weight and 

sufficiency of the evidence; and took under advisement endangering welfare 

of a child. (See N.T. Post-Sentence Motion, 9/26/14, at 5-6).

5 Appellant filed his notice of appeal while his post-sentence motion was 

pending. However, because the court subsequently entered the final order, 

(Footnote Continued Next Page)
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Appellant timely filed his Rule 1925(b) statement on January 8, 2015. 

See Pa.R.A.P. 1925(b). The court entered its Rule 1925(a) opinion on 

February 6, 2015. See Pa.R.A.P. 1925(a).

Appellant raises the following questions for our review:

1. Did the Commonwealth, as a matter of law, provide 

insufficient evidence to meet its burden of proof in regard to 

Count 3—Endangering the Welfare of Children where [Appellant] 

did not exhibit unsafe driving as the only violation committed 

was one that Sergeant Shearer had observed from several other 

unimpaired motorists, and the Commonwealth could not 

establish any other tangible indicia of unsafe driving that would 

have violated a duty of care or created a substantial risk of 

injury to the child who was fastened in a child’s safety seat in 

the rear of the car[?]

2. Whether the trial court’s verdict of guilt as to Count 3—

Endangering the Welfare of Children was against the weight of 

the evidence as [Appellant] had the child in a car safety seat, 

drove in an unimpaired manner, and neither officer could qualify 

how [Appellant] was impaired due to alcohol alone, a drug or 

combination of drugs, or alcohol and a drug or combination of 

drugs[?]

3. Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A. 

§3802(a)(1)—DUI: General Impairment was against the weight 

of the evidence as the [o]fficers were unable to link any 

observations of unsafe driving to [Appellant] and the 

Commonwealth’s evidence did not establish that [Appellant’s] 

mental and physical faculties were impaired by alcohol to such a 

degree that he could not safely operate a motor vehicle[?]

4. Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A. 

§3802(d)(2)—DUI: Controlled Substance—Impaired Ability was 

against the weight of the evidence as the [o]fficers were unable 

(Footnote Continued) _______________________

the notice of appeal is deemed filed on the same date as the final order. 

See Pa.R.A.P. 905(a).
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to link any observations of unsafe driving to [Appellant] and the 

Commonwealth’s evidence did not establish that [Appellant’s] 

mental and physical faculties were impaired by a drug or 

combination of drugs to such a degree that he could not safely 

operate a motor vehicle[?]

5. Whether the trial court’s verdict of guilt as to 75 Pa.C.S.A. 

§3802(d)(3)—DUI: Controlled Substance—Combination of 

Alcohol and a Drug or Combination of Drugs was against the 

weight of the evidence as the [o]fficers were unable to link any 

observations of unsafe driving to [Appellant] and the 

Commonwealth’s evidence did not establish that [Appellant’s] 

mental and physical faculties were impaired by alcohol and a 

drug or combination of drugs to such a degree that he could not 

safely operate a motor vehicle[?]

(Appellant’s Brief, at 1-2).

In his first issue, Appellant challenges the sufficiency of the evidence 

to sustain an endangering the welfare of a child conviction. (See id. at 28-

39). He argues that “[w]ithout first establishing any evidence of 

impairment, the Commonwealth could not possibly have met its burden . . . 

[and] wishes to impose liability upon [him] based solely upon the fact that 

he was driving while intoxicated.” (Id. at 29). Further, he “suggests that a 

defendant does not automatically endanger a child knowingly when [he] 

operate[s] a vehicle under the influence of an intoxicating beverage without 

more.” (Id. at 37). We disagree.

It is well-settled that:

In challenges to the sufficiency of the evidence, our 

standard of review is de novo, however, our scope of review is 

limited to considering the evidence of record, and all reasonable 

inferences arising therefrom, viewed in the light most favorable 

to the Commonwealth as the verdict winner. Evidence is 

sufficient if it can support every element of the crime charged 

beyond a reasonable doubt. The evidence does not need to 
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disprove every possibility of innocence, and doubts as to guilt, 

the credibility of witnesses, and the weight of the evidence are 

for the fact-finder to decide. We will not disturb the verdict 

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.

Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (citations 

and quotation marks omitted).

As charged in this case, “[a] parent, guardian or other person 

supervising the welfare of a child under 18 years of age . . . commits an 

offense if he knowingly endangers the welfare of the child by violating a duty 

of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).

The statute does not require the actual infliction of 

physical injury. Nor does it state a requirement that the child or 

children be in imminent threat of physical harm. Rather it is the 

awareness by the accused that [his] violation of [his] duty of 

care, protection and support is practically certain to result in the 

endangerment to [the] children’s welfare, which is proscribed by 

the statute.

Further, a person must take affirmative, reasonable steps 

to protect the child:

The affirmative performance required by 

[Section] 4304 cannot be met simply by showing any 

step at all toward preventing harm, however 

incomplete or ineffectual. An act which will negate 

intent is not necessarily one which will provide a 

successful outcome. However, the person charged 

with the duty of care is required to take steps that 

are reasonably calculated to achieve success. 

Otherwise, the meaning of the duty of care is 

eviscerated.

Commonwealth v. Winger, 957 A.2d 325, 329-30 (Pa. Super. 2008) 

(citations and quotation mark omitted; emphasis in original). The Court in 
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Winger found a grossly intoxicated driver properly charged with 

endangering the welfare of a child where a car seat secured the child and 

there was no evidence of erratic driving. See id. at 331.

Here, Officer O’Brien initiated a traffic stop when Appellant made an

illegal left turn and ignored “Do Not Enter” and “No Left Turn” signs. (N.T. 

Trial, 6/05/14, at 67; see id. at 69-70). Appellant stumbled and almost fell 

out of the vehicle when Officer O’Brien ordered him back into the car. (See 

id. at 71). Officer O’Brien detected an odor of alcohol and observed an 

infant in a car seat. (See id. at 72). Appellant exhibited slow and slurred 

speech, his eyes seemed heavy, he admitted to consuming beer earlier in 

the evening, and he performed poorly on field sobriety tests. (See id. at 72, 

76-77). Sergeant Shearer conducted the Romberg balance test on Appellant 

and believed that he was on a depressant. (See id. at 129-30). Appellant 

admitted to taking several pills: Aleve; Xanax; and an unknown yellow pill, 

later determined to be headache medicine. (See id. at 83-84, 131).

Accordingly, viewing the evidence in the light most favorable to the 

Commonwealth, we conclude that it was sufficient to sustain the jury’s 

conviction of endangering the welfare of a child. See Forrey, supra at 897; 

Winger, supra at 329-30.
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In his remaining four issues, Appellant challenges the weight of the 

evidence. (See Appellant’s Brief, at 39-48).6 These issues lack merit.

Our standard of review is well-settled:

The weight given to trial evidence is a choice for the 

factfinder. If the factfinder returns a guilty verdict, and if a 

criminal defendant then files a motion for a new trial on the 

basis that the verdict was against the weight of the evidence, a 

trial court is not to grant relief unless the verdict is so contrary 

to the evidence as to shock one’s sense of justice.

When a trial court denies a weight-of-the-evidence motion, 

and when an appellant then appeals that ruling to this Court, our 

review is limited. It is important to understand we do not reach 

the underlying question of whether the verdict was, in fact, 

against the weight of the evidence. We do not decide how we 

would have ruled on the motion and then simply replace our own 

judgment for that of the trial court. Instead, this Court 

determines whether the trial court abused its discretion in 

reaching whatever decision it made on the motion, whether or 

not that decision is the one we might have made in the first 

instance.

Moreover, when evaluating a trial court’s ruling, we keep 

in mind that an abuse of discretion is not merely an error in 

judgment. Rather, it involves bias, partiality, prejudice, ill-will, 

manifest unreasonableness or a misapplication of the law. By 

contrast, a proper exercise of discretion conforms to the law and 

is based on the facts of record.

____________________________________________

6 We note that in his second issue, Appellant states he “believes that the 

established case law clearly goes to the sufficiency of the evidence. 

However, out of an abundance of caution he argues in the alternative that 

the verdict was against the greater weight of the evidence.” (Appellant’s 

Brief, at 39). In his third, fourth, and fifth issues, Appellant argues 

sufficiency rather than weight. (See id. at 40-48).
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. . . [W]e note that the jury is free to believe all, part, or 

none of the evidence and to determine the credibility of the 

witnesses. . . .

Commonwealth v. Ferguson, 107 A.3d 206, 212-13 (Pa. Super. 2015) 

(citations and quotation marks omitted).

In his second issue, Appellant claims that “[t]he trial court’s verdict of 

guilt was against the weight of the evidence because the Commonwealth did 

not establish that [he] [e]ndangered the [w]elfare of a [c]hild.” (Appellant’s 

Brief, at 39). Specifically, he argues that “[t]he [] only support for this 

offense was that [he] was charged with DUI while a minor was . . . properly 

fastened in a child’s safety seat . . . [and] there was nothing to suggest 

erratic or reckless driving.” (Id.). We disagree.

As previously discussed, endangering the welfare of a child does not 

require evidence of erratic driving. See Winger, supra at 329-30. 

Moreover, our independent review of the record reflects that there was 

ample evidence for the jury to convict Appellant of endangering the welfare 

of a child.

Accordingly, we discern no abuse of discretion in the trial court’s 

determination that the jury’s verdict did not shock one’s sense of justice. 

See Ferguson, supra at 212-13. Therefore, Appellant’s second issue lacks 

merit.

In his third, fourth, and fifth issues, Appellant claims that his 

convictions of DUI were against the weight of the evidence because the 

evidence did not establish that his mental and physical faculties were 
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impaired to prevent him from safely operating a motor vehicle. (See

Appellant’s Brief, at 40-48). Specifically, he asserts there was a “lack of 

sufficiently articulating any link between the observations and perceptions 

Officer O’Brien and Sergeant Shearer made to [Appellant’s] impairment.” 

(Id. at 42; see id. at 43, 46). We disagree.

Our independent review of the record reflects that Officer O’Brien 

observed Appellant disregard traffic signs and make an illegal left turn, (see

N.T. Trial, 6/05/14, at 67, 69-70), and “stumble[], almost [fall] out of the 

car[.]” (Id. at 71). Both Officer O’Brien and Sergeant Shearer testified 

about Appellant’s poor performance on field sobriety tests, and their 

observations of his slow and slurred speech, and heavy eyes. (See id. at 

71, 76-77, 128-30). Therefore, there was ample evidence for the jury to 

convict Appellant of three counts of DUI.

Accordingly, we discern no abuse of discretion in the trial court’s 

determination that the jury’s verdict did not shock one’s sense of justice. 

See Ferguson, supra at 212-13. Therefore, Appellant’s third, fourth, and 

fifth issues lack merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/17/2015