Com. v. O'Black

• Decision Date: 13 April 2006
• Citation: 897 A.2d 1234
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. John E. O'BLACK, Appellant.
• Court: Pennsylvania Superior Court

897 A.2d 1234

COMMONWEALTH of Pennsylvania, Appellee v. John E. O'BLACK, Appellant.

Superior Court of Pennsylvania.

Argued December 6, 2005.

Filed April 13, 2006.

COPYRIGHT MATERIAL OMITTED

Peter J. Daley, II, California, for appellant.

John W. Peck, Asst. Dist. Atty., and James R. Hopson, Asst. Dist. Atty., Greensburg, for Com., appellee.

BEFORE: KLEIN, PANELLA, and JOHNSON, JJ.

OPINION BY JOHNSON, J:

¶ 1 John E. O'Black appeals the judgment of sentence imposed following his convictions for one count of each of the following: Driving Under the Influence of Alcohol, Driving Vehicle at Safe Speed, Careless Driving, and Driving While Operating Privilege is Suspended or Revoked, see 75 Pa.C.S. §§ 3731(a)(1), 3361, 3714, 1543(b), respectively. On appeal, O'Black argues that there is insufficient evidence to support the convictions, that the convictions are against the weight of the evidence, and that the trial court erred in failing to grant O'Black's motion to suppress certain statements made by O'Black. None of O'Black's contentions have merit. Consequently, we affirm the trial court's judgment of sentence.

¶ 2 The trial court set forth the following factual summation:

On December 1, 2003 Mr. Michael Cursi was on his way home after visiting a friend. At approximately 2:30 a.m. he was on State Route 70 traveling west. Mr. Cursi noticed a truck on the guardrail on the off ramp of the Monessen exit. He stopped his vehicle, backed up, and then got out and walked over to the truck. The truck was wobbling on the guardrail, was completely off the road, and its back tires were spinning. The motor of the vehicle was still running and Mr. Cursi identified the Defendant as the driver of the truck. The Defendant exited the truck and Mr. Cursi asked the Defendant if he was okay. The Defendant, whose head or face was bleeding, responded that he did not need any help. Mr. Cursi could smell alcohol on the Defendant.

Trooper Frederick Gregg of the Pennsylvania State Police was working the midnight shift on December 13, 2003 with his partner, Trooper Eric Zona. Trooper Gregg testified that when they got to the scene the truck was sitting on top of the guardrail and that the Defendant was out of the vehicle. The Defendant was bleeding from the bridge of his nose. The Defendant was holding a single key and a cell phone. Trooper Gregg detected a strong odor of alcohol coming from the Defendant and [noticed] that the Defendant's speech was slurred. The Defendant initially indicated that the truck on the guardrail was not his and that he had not been in an accident. The Defendant stated that he had been in a fight. Trooper Gregg indicated that the truck was registered to the Defendant. The Defendant then indicated that [ ] he was driving the vehicle and that Mr. Cursi ran him off the road.

Trooper Zona indicated that it was 19 degrees that evening but that the roads were dry. He further indicated that there were no adverse weather conditions. He spoke to Mr. Cursi and detected no signs of intoxication. Trooper Zona indicated that the key in the Defendant's possession fit the truck and that the hood of the truck was warm to the touch. The troopers requested that the Defendant do field sobriety tests and noted that he made several mistakes in an attempt to complete the tests. The Defendant refused to submit to chemical testing.

Trial Court Opinion, 03/14/05, at 2-3.

¶ 3 Following a jury trial, O'Black was convicted of Driving Under the Influence of Alcohol, Driving Vehicle at Safe Speed, Careless Driving and Driving While Operating Privilege is Suspended or Revoked. On January 27, 2005, O'Black was sentenced to a period of incarceration not less than 6 months' nor more than 23 months' for the DUI charge and 90 days' incarceration for driving while his operating privilege was suspended or revoked. The remainder of the counts were reduced to fines and costs. O'Black then filed a post sentence motion, which the trial court denied.

¶ 4 O'Black then filed this appeal and raised the following questions for our review:

1. WHETHER THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT BECAUSE THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT OPERATED HIS VEHICLE ON A ROADWAY[?]

2. WHETHER THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT BECAUSE THE VERDICT THAT THE DEFENDANT OPERATED A VEHICLE ON A ROADWAY WHILE UNDER THE INFLUENCE WAS AGAINST THE WEIGHT OF THE EVIDENCE[?]

3. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO THE POLICE OFFICERS AT THE SCENE OF THE ACCIDENT[?]

4. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO PRESENT DEFENDANT'S VERBAL

STATEMENTS AT THE SCENE OF THE ACCIDENT BECAUSE THEIR PROBATIVE VALUE WAS OUTWEIGHED BY RISK OF PREJUDICE TO THE JUDGE [sic][?]

Brief for Appellant at 4.

¶ 5 Preliminarily, we note that there are no notes of testimony or transcript from the trial in this case. It is well established in this Commonwealth that it is "the appellant's responsibility to order the transcript required and ascertain its presence in the record prior to certification for appeal." Commonwealth v. Osellanie, 408 Pa.Super. 472, 597 A.2d 130, 131 (1991). This Court contacted the Prothonotary in an attempt to ascertain the whereabouts of a transcript and also reviewed the docket to determine whether a transcript was docketed, but our searches were fruitless. We note that although there appears to be an Order from O'Black to produce the transcript, there is nothing in the docket showing O'Black paid for the transcript. Consequently, "we are compelled to remind defense counsel that it is not the responsibility of this court to obtain a copy of the trial transcript for the purposes of reviewing the client's claims." Id. at 132.

¶ 6 We note that this is a far different situation than where there are notes of testimony in the reproduced record, or the notes are referred to by the parties or listed in the record inventory sent to this Court, when we know the transcript or notes of testimony exist but are not in the certified record. In those situations, we well might make an informal inquiry to the trial court to see if there was an error in transmission to this Court or otherwise remand to see if the transcript or notes of testimony can be located and transmitted. Indeed, this is not a situation where O'Black alleged error on the part of the clerk in transmitting the record.

¶ 7 Finally, we note that the Commonwealth pointed out the lack of a transcript in its brief and suggested that the issues in O'Black's brief were, therefore, waived. Nonetheless, O'Black did not file a reply brief or take any steps to ascertain if the transcript could be included in the record or if a Statement in Absence of Transcript under Pa.R.A.P.1923 could be supplied. To the extent that we are unable to review O'Black's claims on appeal because we do not have an adequate record, we find those claims waived. See Osellanie, 597 A.2d at 132.

¶ 8 O'Black's first contention on appeal is that the evidence is insufficient to support the verdict. Brief for Appellant at 7. In reviewing a sufficiency claim, we must view all of the evidence in the light most favorable to the Commonwealth as the verdict winner to determine if the fact-finder could have found each element of the crime proven beyond a reasonable doubt. See Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267 (1989). We may not weigh the evidence, nor substitute our judgment for that of the fact-finder. See Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa.Super.2003).

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. Bullick, 830 A.2d 998, 1000 (Pa.Super.2003) (quoting Commonwealth v. Gooding, 818 A.2d 546, 549 (Pa.Super.2003)).

¶ 9 In this case, however, we do not have a trial transcript by which we could determine whether the evidence was sufficient to sustain O'Black's conviction. Indeed, "absent an adequate record, there is no support for appellant's arguments that the evidence was insufficient . . ." Commonwealth v. Hyde, 406 Pa.Super. 445, 594 A.2d 703, 705 (1991). See also Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352, 354 (1986) (finding that where appellant failed to provide notes of testimony, this Court could not undertake a meaningful review of appellant's sufficiency claim). In this case, O'Black makes general comments regarding the testimony of certain witnesses and makes similarly vague statements about his own testimony. O'Black has failed to provide any support for his argument that the evidence was insufficient to support his conviction.

¶ 10 In his second question presented, O'Black argues that the verdict was against the weight of the evidence. Brief for Appellant at 12. Pursuant to Pa.R.Crim.P. 607, a challenge to the weight of the evidence must be raised before the trial court. In order for this Court to review a weight of the evidence claim, we must determine whether the trial court abused its discretion in refusing to grant O'Black a new trial. See Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 753 (2000) ("Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying...