Commonwealth vs. Peck No. CP-38-CR-0854-2012

Crimes – Appeal – Sufficiency of Evidence – Required View of Evidence – Beyond a Reasonable Doubt – DUI – Actual Physical Control of Vehicle – No Movement Required – Circumstantial Evidence.

A claim challenging the sufficiency of the evidence is a question of law.

The evidence adduced at trial must be viewed in the light most favorable to the verdict winner to determine whether there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. 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 is entitled to all reasonable inferences arising from the evidence and all facts which the Commonwealth’s evidence tends to prove are treated as admitted. Only where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, is the evidence deemed insufficient as a matter of law.

The task of the appellate court in reviewing the sufficiency claim is to determine whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.

An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

In order for a defendant to be in “actual physical control”, a vehicle need not be in actual movement. The Commonwealth may prove that a defendant was in “actual physical control” through circumstantial evidence. A determination as to whether a defendant was in “actual physical control” is based upon the totality of the circumstances.

The Court reviewed the numerous facts established at trial and held that this evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support the finding that Defendant was in actual physical control of the vehicle.

Opinion. C.P. of Lebanon County, Criminal Action-Law, No. CP-38-CR-0854-2012.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

COMMONWEALTH OF PENNSYLVANIA : NO. CP-38-CR-0854-2012

v.

PHILLIP C. PECK

ORDER OF COURT

AND NOW, this 5^th day of March, 2014, upon consideration of Defendant’s Post-Sentence Motion and the Briefs submitted by the parties, it is hereby Ordered that said Motion is denied.

Pursuant to Pa.R.Crim.P. 720(B), Defendant is advised that he has the right to appeal from this denial to the Superior Court of Pennsylvania. An appeal must be filed in writing no later than thirty (30) days from the date of this Order. Defendant has the right to the assistance of counsel in the preparation of an appeal. In the event that Defendant is indigent, he has the right to appeal in forma pauperis and to proceed with assigned counsel as provided by Pa.R.Crim.P.

122. Defendant has the qualified right to bail under Pa.R.Crim.P. 521(B).

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

SARAH K. HART, ESQUIRE FOR THE COMMONWEALTH

DISTRICT ATTORNEY

TIMOTHY M. BARROUK, ESQUIRE FOR PHILLIP C. PECK

THE MCSHANE FIRM, LLC

OPINION, TYLWALK, P.J., MARCH 5, 2014.

Defendant Phillip C. Peck was charged with one count of Driving Under the Influence: Highest Rate of Alcohol – Third Offense, one count of Driving Under the Influence: General Impairment – Third Offense for an incident which occurred on March 2, 2012. After being found guilty of these offenses following a jury trial on August 8, 2013, he was sentenced to a term of incarceration of one to five years on October 30, 2013. On November 6, 2013, Defendant filed a timely Post Sentence Motion in Arrest of Judgment contending that the verdict was against the weight of the evidence on both counts of Driving under the Influence. He contends that the finding that he was “in actual physical control” of his vehicle is contrary to the evidence presented at trial. Both parties have submitted Briefs and the Motion is presently before us for disposition.

Challenges to the weight of the evidence and sufficiency of the evidence are discrete inquiries. Commonwealth v. Davis, 799 A.2d 860 (Pa.Super. 2002). A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain a verdict but contends that the verdict is against the weight of the evidence. Id. The decision whether to grant a new trial on this basis rests within the discretion of the trial court. Commonwealth v. Holmes, 663 A.2d 771 (Pa.Super. 1995). In reviewing the weight of the evidence, all the evidence should be examined. Commonwealth v. Gonce, 466 A.2d 1039 (Pa.Super. 1983).

The role of the trial judge in reviewing claims that the verdict is against the weight of the evidence is to determine that “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore that or to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000). A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the verdict is so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Gonce, supra. The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995). The function of the trier of fact is to pass on the credibility of witnesses and determine the weight to be accorded to a particular piece of evidence. Id. After reviewing the evidence in this case in its entirety, we find that the jury’s finding as to Defendant’s guilt was not contrary to the weight of the evidence.

The Driving Under the Influence offenses with which Defendant was charged are defined in the Pennsylvania Vehicle Code as follows:

§ 3802. Driving under influence of alcohol or controlled substance

75 Pa.C.S.A. §3802(a)(2), (c).

In order for a defendant to be in “actual physical control,” a vehicle need not be in actual movement. Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994). The Commonwealth may prove that a defendant was in “actual physical control” through circumstantial evidence. Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008). A determination as to whether a defendant was in “actual physical control” is based upon the totality of the circumstances. Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa.Super.2005)

Under Pennsylvania law, an eyewitness is not required to establish one was driving, operating, or in actual physical control of a motor vehicle, but, rather, the Commonwealth may establish the same through wholly circumstantial evidence. Id. ” ‘Our precedent indicates that a combination of the following factors is required in determining whether a person had ‘actual physical control’ of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle. ” Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa.Super.2005) citing Commonwealth v. Woodruff, , 668 A.2d 1158, 1161 (1995)). In addition, when the location of the vehicle supports an inference that it was driven, this inference will serve as a key factor in a finding of actual control; conversely, where the location of a vehicle supports an inference that it was not driven, this Court has rejected the inference of actual control. Brotherson, 888 A.2d at 905. In Brotherson, we determined that “[t]he highly inappropriate location of the car—on the basketball court of a gated children’s playground—created a strong inference that it was an already intoxicated [a]ppellant who had driven the car to that spot.” Id.

The Commonwealth may sustain its burden of proving every element of the charged crimes beyond a reasonable doubt by means of wholly circumstantial evidence. Johnson, 833 A.2d at 263.

Commonwealth v. Young, 904 A.2d 947, 954-955 (Pa. Super. 2006), appeal denied 916 A.2d 633 (Pa. 2006).

At trial, Scott Herneisey testified that during the early morning hours of March 2, 2012, he was at home in his apartment at 224 West Main Avenue in Annville. (N.T. 11) He was attempting to sleep but was kept awake by loud music blaring outside of his apartment. (N.T. 11) After twenty to thirty minutes, he went downstairs to the street and approached the vehicle from which the music was coming. (N.T. 12) The vehicle’s engine was running and Defendant was sitting in the driver’s seat. (N.T. 12) When Herneisey knocked on the driver’s side window and motioned for Defendant to turn down the music, Defendant looked at Herneisey for a few seconds but did not turn the music down. (N.T. 12) Herneisey testified that since Defendant appeared to be “drunk or messed up” and Herneisey did not want any trouble, he contacted the police. (N.T. 12, 13)

On cross-examination, Herneisey testified that he only knew that the vehicle had been parked in the street for as long as the music had been playing and that he had noticed that the brake lights were on. (N.T. 15)

Corporal Steven Werner of the Pennsylvania State Police testified that he and Trooper Day were dispatched for a report of a vehicle parked on West Main Street with loud music playing and that they arrived at the scene at approximately 3:27 that morning. (N.T. 18) Upon arriving at the scene, they found Defendant’s vehicle facing east on Main Street with the engine running, the headlights and brake lights on, and Defendant sitting in the driver’s seat slumped over. (N.T. 19-20) The Troopers parked directly in front of Defendant’s vehicle and activated the overhead lights of the cruiser. (N.T. 20-21) When they approached the vehicle, Trooper Werner observed that the music was very loud, that the windows were rolled up, and that Defendant was the sole occupant. (N.T. 21) Defendant was slumped over holding a cigarette in his hand. (N.T. 21) When Corporal Werner knocked on the driver side window, Defendant woke up, appeared disoriented, and stared at Trooper Day, who was on the other side of the vehicle. (N.T. 22) When Corporal Werner told him to turn the radio down, Defendant continued to look at the Trooper “with a blank stare.” (N.T. 22) Corporal Werner was able to open the door, reach in to turn off the engine, and remove the key from the ignition. (N.T. 23)

After a time, Corporal Werner was able to awaken Defendant and have him step out of the car. (N.T. 26) When Corporal Werner asked Defendant where he was coming from, Defendant looked in an easterly direction. (N.T. 26) Upon further questioning, Defendant told Corporal Werner that he had been drinking beer and shots at the Corvette Bar, which was located a short distance away, until between 1:30 and 2:30 a.m. (N.T. 41, 46) He informed Corporal Werner that he had intended to walk home from the bar, but that he was sitting in his car to keep warm. (N.T. 41) Trooper Werner also recalled Defendant informing him that he had a colostomy bag and a bag to catch his urine, that he had decided he couldn’t walk home and was going to “sleep it off” in his car. (N.T. 49) Corporal Werner testified that the temperature was cold that morning. (N.T. 48)

Defendant first gave his address as 720 Main Street in Annville. (N.T. 27) However, when Corporal Werner obtained his license, Defendant’s address was indicated as being on Railroad Street in Annville. (N.T. 28) Corporal Werner testified that Railroad Street was close by, almost directly across the street from where Defendant’s car was parked. (N.T. 28, 43) Corporal Werner also noted that both the addresses on Main Street and Railroad Street were in walking distance of the bar where Defendant had been drinking. (N.T. 47)

Defendant contends that the jury’s verdict with regard to both counts of Driving Under the Influence is against the weight of the evidence because the Commonwealth’s only evidence of his being in actual physical control of his vehicle was Corporal Werner’s testimony that the engine was running. He relies on Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994), arguing that this matter is factually identical to the situation at issue in that case. In Byers, the defendant was found asleep in the driver’s seat of his car in the parking lot of a bar. The motor of the car was running, the doors were locked, and the headlights were on, but the car was not moving. He testified that after he left the bar where he had been consuming alcohol, he went out into the parking lot, got into his car and fell asleep. When he woke up, he started the engine to turn on the air conditioner. He testified that he turned on the headlights in order to see the knobs for the air conditioner. He then fell asleep again until the police knocked on the car window and woke him up. The engine was still running, the doors were still locked, and the headlights were still on. A panel of the Superior Court held that the Commonwealth did not introduce enough evidence to show actual physical control and that the Commonwealth was required to show some additional facts to demonstrate that the defendant was a danger to public safety beyond having merely started a parked car. After noting that the purpose of the Driving Under the Influence laws is to keep intoxicated drivers off of the road and to protect the public at large, the court stated: “In the present case, Byers never got onto the road and was not a threat to public safety. The Commonwealth is trying to encourage intoxicated people to ‘sleep it off’ before attempting to drive, yet it wants us to punish Byers for doing just that.” Id. at 471.

We find that Byers is distinguishable on its facts. As in Byers, Defendant here was in the driver’s seat of a parked car with the engine running and headlights on. When asked where he had been coming from, Defendant looked in an easterly direction and later informed Corporal Werner that he had been at the Corvette Bar which was a short distance away. Unlike Byers, Defendant here was not in the parking lot of the bar, but was pulled over on the side of a street heading in the direction from the bar toward his home on Railroad Street with his one working brake light illuminated. These are all facts which indicate use of the vehicle. Also, unlike Byers, Defendant had left the vehicle doors unlocked. It is reasonable to assume that Defendant would not have had the radio blaring, would not have left the doors unlocked and would not have been smoking a cigarette if he had been simply sleeping off his intoxication.

Under these circumstances, there was ample evidence of Defendant being in actual physical control of his vehicle. Although this type of situation may present a close call, the jury obviously found the Commonwealth’s evidence to be credible and attributed greater weight to that evidence. Its finding does not shock our conscience and we will therefore deny Defendant’s Post Sentence Motion.