Com. v. Leister, A. ( 2021 )

J-S50005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHLEY ESTHER LEISTER :
:
Appellant : No. 2717 EDA 2019
Appeal from the Judgment of Sentence Entered August 20, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001257-2019
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 20, 2021
Appellant, Ashley Esther Leister (“Leister”), appeals from the judgment
of sentence of an aggregate term of 72 hours to 6 months’ imprisonment,
imposed after she was convicted of three counts of driving under the influence
of a controlled substance.1 Appellant challenges the sufficiency of the
evidence to sustain her convictions and the imposition of prosecution costs at
sentencing. We affirm.
The trial court provided the following factual summary in its Pa.R.A.P.
1925(a) opinion:
On November 24, 2018[,] at approximately 8:20 p.m.,
Leister was observed walking through Wawa, a convenience store,
located at 145 West DeKalb Pike, Upper Merion, Montgomery
County. Robert Dubuc, a manager at Wawa, testified that Leister
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(d)(1)(ii), (d)(1)(iii), (d)(2).
J-S50005-20
appeared to be intoxicated while in the store. Mr. Dubuc testified
that he saw her exit the store and approach the driver’s side of
her car. Because she appeared to be intoxicated, Mr. Dubuc
directed Leister towards the passenger door and into the
passenger’s seat. Mr. Dubuc started her car, since it was cold
outside. He then called [the] police.
Officer Brian Manion of the Upper Merion Police Department
responded to the scene. Upon arriving at the scene, Leister was
in the front passenger seat. She appeared to have glassy and
bloodshot eyes. When he spoke with Leister, she slurred her
speech, nodding in and out during their conversation. She also
seemed confused. The officer testified that based upon these
observations[,] Leister appeared to be intoxicated. Leister told
him that she drove to Wawa.
Officer Manion asked Leister to step out of her car and to
consent to a field sobriety test, which she did. The officer
administered the one leg stand and balance test, the alphabet
test, and the step-walk-and-turn test. Her performance on these
tests coupled with her glassy eyes, slurred speech, confusion and
falling asleep, indicated to the officer that her ability to safely drive
her car was impaired and that she would be a danger on the road.
Leister was taken into custody on suspicion of DUI. The officer
read the DL-26 form to Leister, and then transported her to
Suburban Community Hospital for a blood draw.
A[ National Medical Services (“NMS”)] lab report was
generated analyzing the blood draw. According to the NMS report,
there was a presence of amphetamine, methamphetamine,
Clonazepam, 7-Amino Clonazepam, and Oxycodone-Free in
Leister’s blood. The report listed Oxycodone as a DEA Schedule
II drug.
Trial Court Opinion (“TCO”), 11/27/19, at 1-2 (citations to record omitted).
Based on the evidence presented at a bench trial on August 20, 2019,
Leister was found guilty of the aforementioned offenses and was sentenced to
72 hours to 6 months’ imprisonment. She was also ordered to pay the costs
of prosecution and a $1,000 fine. Leister filed a post-sentence motion, which
was denied by the trial court on August 26, 2019. On September 13, 2019,
-2-
J-S50005-20
she filed a timely notice of appeal, followed by a timely, court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Herein, Leister presents the following issues for our review:
1. Was there sufficient evidence to convict … Leister of driving
under the influence when she was seen leaving a store on foot,
appearing intoxicated, and then rested in the passenger seat
of a parked vehicle?
2. Did the sentencing court err in imposing costs and a
supervision fee without taking into consideration … Leister’s
ability to pay?
Leister’s Brief at viii.
First, Leister challenges the sufficiency of the evidence to support her
convictions. The standard of review of a sufficiency claim is well-established:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39, A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted).
Specifically, Leister argues that “[o]bservations of an inebriated person
returning to the passenger side of a parked car are insufficient evidence on
which to sustain driving under the influence convictions.” Leister’s Brief at 5.
She contends that the Commonwealth’s case is “based entirely on the
supposition that [she] was inebriated when she first drove her car to Upper
Merion and parked near … Wawa[,]” but that all of its evidence pertains to
-3-
J-S50005-20
actions she took when she returned to the car. Id. She asserts that no
evidence was presented regarding any of her activities prior to the moment
she was seen exiting Wawa by foot. Id. After careful review, we conclude
Leister is not entitled to relief on this claim.
Section 3802 of the Vehicle Code provides, in relevant part:
(d) Controlled substance.—An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in the act of
April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance, as
defined in The Controlled Substance, Drug, Device and
Cosmetic Act, which has not been medically prescribed for
the individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the individual’s
ability to safely drive, operate or be in the actual physical
control of the movement of the vehicle.
75 Pa.C.S. §§ 3802(d)(1) – (d)(2).
Contrary to Leister’s claim, the Commonwealth asserts that it proved by
the totality of the circumstances that Leister was in actual physical control of
her vehicle while intoxicated. Commonwealth’s Brief at 6. According to the
Commonwealth, the totality of the circumstances includes:
(1) [Leister’s] own statement that she drove to … Wawa; (2) the
location of the vehicle at … Wawa; (3) multiple failed field sobriety
tests; (4) the common sense inference that [Leister] could not
have ingested the intoxicants while inside … Wawa because the
-4-
J-S50005-20
degree of her inebriation was so severe as to fail three field
sobriety tests; and (5) eyewitness testimony that [Leister] tried
to get into the driver’s seat.
Id. at 6-7 (citations to record omitted) (citing Commonwealth v. DiStefano,
782 A.2d 574, 582 (Pa. Super. 2001) (stating, inter alia, that “[t]he
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence”)).
Moreover, Leister does not dispute that she drove her car to Wawa on
the night of the incident. Rather, her argument is premised on her assertion
that there is no evidence she was inebriated at the time she drove, operated,
or was in control of the vehicle, because no timeframe was established for
when she parked the vehicle at Wawa and/or when she ingested the
substances that caused her inebriation. Id. at 8. As the Commonwealth
points out, this Court has previously determined:
“The term ‘operate’ requires evidence of actual physical control of
either the machinery of the motor vehicle or the management of
the vehicle’s movement, but not evidence that the vehicle was in
motion.” Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa.
Super. 2003). “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.
Woodruff, … 668 A.2d 1158, 1161 ([Pa. Super.] 1995). A
determination of actual physical control of a vehicle is based upon
the totality of the circumstances. [Commonwealth v.]
Williams, [871 A.2d 254,] 259 [(Pa. Super. 2005)]. “The
Commonwealth can establish through wholly circumstantial
evidence that a defendant was driving, operating or in actual
physical control of a motor vehicle.” Johnson, supra at 263.
-5-
J-S50005-20
Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super. 2010) (quoting
Commonwealth v. Brotherson, 888 A.2d 901, 904-05 (Pa. Super. 2005)).2
“In a majority of cases, the suspect location of the vehicle, which supports an
inference that it was driven, is a key factor in a finding of actual control.”
Brotherson, 888 A.2d at 905 (citing Commonwealth v. Bobotas, 588 A.2d
518, 521 (Pa. Super. 1991) (finding actual physical control when the
defendant was found parked in an alley, where he had pulled over on the way
home, with the motor running); Commonwealth v. Crum, 523 A.2d 799,
800 (Pa. Super. 1987) (finding actual physical control when the defendant was
found sleeping in his parked car, along the side of the road, with the headlights
on and the motor running)).
Instantly, Leister declares that “[i]t is anyone’s guess as to when [she]
parked her car and what she did between the moment she exited the car and
the moment she was seen leaving Wawa on foot.” Leister’s Brief at 7. She
argues that, “although a fact finder may draw inferences from circumstantial
evidence, a verdict of guilt cannot be based on surmise or conjecture.” Id.(citing Commonwealth v. Stanley, 309 A.2d 408 (Pa. 1973)). She also cites
____________________________________________
2 In Brotherson, we analyzed the “actual physical control” component of
Section 3731, the predecessor to Section 3802. The Pennsylvania Legislature
repealed Section 3731 on September 30, 2003, effective February 1, 2004,
and replaced it with Section 3802 of the Vehicle Code. Although levels of
impairment were modified in the latter enactment, both statutes provide that
a person may not “drive, operate or be in actual physical control of the
movement of a vehicle” while under the influence.
-6-
J-S50005-20
to Commonwealth v. New, 47 A.2d 450 (Pa. 1946), in which the Court
stated:
When two equally reasonable and mutually inconsistent inferences
can be drawn from the same set of circumstances, a jury must not
be permitted to guess which inference it will adopt, especially
when one of the two guesses may result in depriving [the]
defendant of his life or his liberty. When a party on whom rests
the burden of proof in either a criminal or a civil case, offers
evidence consistent with two opposing propositions, he proves
neither.
Leister’s Brief at 7 (quoting New, 47 A.2d at 468; emphasis added). Relying
on New, Leister poses that the possibility she parked her car and immediately
went into Wawa, leaving shortly thereafter, “sits in equipoise with the
possibility that she parked and then engaged in other activities during a
passage of time before she was seen leaving … Wawa.” Id. at 8-9. We remain
unconvinced that these two scenarios are equally reasonable.
As the trial court opined, “people who drive to Wawa typically purchase
something and then drive away. It is not a final destination. It is not a location
where amphetamine, clonazepam, 7-Amino Clonazepam, and Oxycodone are
purchased over the counter and then used in public.” TCO at 5. Given that
Leister admitted she drove to Wawa and that she was seen “heavily
intoxicated” inside Wawa, suggesting that she had ingested the various
substances in her system with sufficient time for them to take effect, it is
reasonably inferred that Leister had driven to Wawa while under the influence
of the controlled substances. See Toland, 995 A.2d at 1246 (where the
defendant, as the sole occupant of a vehicle, was found asleep in the driver’s
-7-
J-S50005-20
seat with the engine running, while parked in the lot of a store that was not
known to sell alcoholic beverages, and appeared visibly intoxicated to the
officer after he was awakened, we determined that “a reasonable inference
could be made that [the defendant] drove to that location[,]” and concluded
that the evidence, while circumstantial, was sufficient for the fact-finder to
conclude that the defendant was “in actual physical control of the movement
of the motor vehicle” in support of his DUI conviction). See also
Commonwealth v. Saunders, 691 A.2d 946, 950 (Pa. Super. 1997),
abrogated on other grounds, Commonwealth v. Dantzler, 135 A.3d 1109(Pa. Super. 2016) (determining that the Commonwealth presented sufficient
evidence to support an inference that the defendant drove his car while
intoxicated where the defendant was found asleep in his car with the motor
running, parked in front of a store that did not sell alcoholic beverages, and
the defense stipulated that the defendant was intoxicated at the time the
officer removed him from the car).
After reviewing the evidence presented in this case, the trial court
determined,
the evidence showed that Leister[,] who was seen heavily
intoxicated in the convenience store, had driven to Wawa in her
car intoxicated. It was clearly established that she drove herself
to Wawa in her car. She was seen intoxicated in Wawa. She
drove nowhere else. The observations of the responding officer
and the blood draw results also showed that she was heavily
intoxicated by various substances…. This [c]ourt as fact-finder
considered the totality of the direct evidence and circumstantial
evidence presented, and common sense interferences [sic] from
-8-
J-S50005-20
this evidence; and properly inferred that Leister was only at …
Wawa for a short period of time after driving there while impaired.
TCO at 5. We discern no abuse of discretion or error of law by the trial court.
Next, Leister claims the trial court erred in ordering her to pay costs
without first considering her ability to pay, in violation of Pa.R.Crim.P. 706(C).
Leister’s Brief at 9. This issue implicates the interpretation of the Rules of
Criminal Procedure, which presents a question of law. Therefore, our standard
of review is de novo, and our scope of review is plenary. See
Commonwealth v. Dowling, 959 A.2d 910, 913 (Pa. 2008).
Leister states that she was “wrongly ordered to pay the costs of
prosecution and supervision fees as part of her sentence.” Leister’s Brief at
9. She argues that the sentencing court should have considered her ability to
pay before imposing such costs, but that it failed to inquire about her financial
situation. Id. at 10.3 In support of her argument, Leister cites to Pa.R.Crim.P.
706(C), which provides that the court, “in determining the amount and
method of payment of a fine or costs shall, insofar as is just and practicable,
consider the burden upon the defendant by reason of the defendant’s financial
means….” Id. at 9 (quoting Rule 706(C)) (emphasis added). Leister asserts
that this provision applies at sentencing. Id. (citing Commonwealth v.
Martin, 335 A.2d 424 (Pa. Super. 1975) (en banc) (invalidating the imposition
of a fine where the trial court did not determine the ability to pay under Rule
706 (then Rule 1407))). Because the sentencing court did not make an ability-
____________________________________________
3 “Leister is indigent and currently receives the services of the public
defender.” Id. at 13.
-9-
J-S50005-20
to-pay determination in this matter, Leister concludes that the assignment of
costs was an illegal sentence and should be vacated. Id. at 14.
Contrarily, the trial court opined:
There is no requirement in Pennsylvania that a trial court consider
a criminal defendant’s ability to pay the costs of prosecution
and/or fees attendant to that prosecution. Commonwealth v.
Childs, 63 A.3d 323, 326-27 (Pa. Super. 2013). While Rule 706
“permits a defendant to demonstrate financial inability either after
a default hearing or when costs are initially ordered to be paid in
installments,” the Rule only requires such a hearing prior to any
order directing incarceration for failure to pay the ordered costs.
Commonwealth v. Hernandez, 917 A.2d 332, 337 (Pa. Super.
2007) (emphasis added); see also[] Childs, 63 A.3d at 325-26.
Therefore, it was not required that this [c]ourt make a finding that
Leister had the ability to pay costs before their imposition.
TCO at 7-8 (emphasis in original).
Leister attacks the trial court’s ruling, arguing that Hernandez and
Childs wrongly determined that Rule 706 does not apply at sentencing,
ignoring the en banc precedent of Martin, as well as the plain text of Rule
706(C). Leister’s Brief at 10. The Commonwealth argues, however, that
Leister’s reliance on Martin is misplaced. Commonwealth’s Brief at 18. The
Commonwealth asserts that Martin is distinguishable from this matter,
primarily because Martin focused on the imposition of fines, not mandatory
costs. Id. at 19. “Because Martin did not address the issue of costs, it should
not be read to extend to costs. Accordingly, the trial court did not err when it
imposed costs without first ascertaining [Leister’s] ability to pay.” Id. We
agree with the Commonwealth.
- 10 -
J-S50005-20
In fact, this very issue of the legality of imposition of mandatory costs
at sentencing, without first holding an ability-to-pay hearing, was recently
decided by an en banc panel of this Court in Commonwealth v. Lopez, 2021
WL 1096376 (Pa. Super. Mar. 23, 2021) (en banc). There, the defendant
similarly appealed from a judgment of sentence, which included the imposition
of mandatory court costs. Lopez argued that he was entitled to a hearing
under Rule 706(C) to determine his ability to pay those court costs before the
court imposed them at sentencing. The Lopez Court held that “while a trial
court has the discretion to hold an ability-to-pay hearing at sentencing, Rule
706(C) only requires the court to hold such a hearing when a defendant faces
incarceration for failure to pay court costs previously imposed on him.” Id.
at *1.
The Lopez Court expressly rejected the argument that Section C can be
read in isolation from the rest of Rule 706, noting that it is critical to look at
the Rule in its entirety. Id. at *2. To that end, Rule 706 provides:
(A) A court shall not commit the defendant to prison for failure
to pay a fine or costs unless it appears after hearing that
the defendant is financially able to pay the fine or costs.
(B) When the court determines, after hearing, that the
defendant is without the financial means to pay the fine or
costs immediately or in a single remittance, the court may
provide for payment of the fines or costs in such
installments and over such period of time as it deems to be
just and practicable, taking into account the financial
resources of the defendant and the nature of the burden its
payments will impose, as set forth in paragraph (D) below.
(C) The court, in determining the amount and method of
payment of a fine or costs shall, insofar as is just and
- 11 -
J-S50005-20
practicable, consider the burden upon the defendant by
reason of the defendant’s financial means, including the
defendant’s ability to make restitution or reparations.
(D) In cases in which the court has ordered payment of a fine
or costs in installments, the defendant may request a
rehearing on the payment schedule when the defendant is
in default of a payment or when the defendant advises the
court that such default is imminent. At such hearing, the
burden shall be on the defendant to prove that his or her
financial condition has deteriorated to the extent that the
defendant is without the means to meet the payment
schedule. Thereupon the court may extend or accelerate
the payment schedule or leave it unaltered, as the court
finds to be just and practicable under the circumstances of
record. When there has been default and the court finds the
defendant is not indigent, the court may impose
imprisonment as provided by law for nonpayment.
Pa.R.Crim.P. 706. “When the sections of Rule 706 are read sequentially and
as a whole, as the rules of statutory construction direct, it becomes clear that
Section C only requires a trial court to determine a defendant’s ability to pay
at a hearing that occurs prior to incarceration, as referenced in Sections A and
B.” Lopez at *2.
Lopez further argued, as does Leister, that the trial court’s reliance on
Childs was improper because it is inconsistent with this Court’s decision in
Martin. The Lopez Court rejected this argument because Martin solely
addressed the issue of whether the trial court could impose a fine without
considering the ability to pay, and reaffirmed the Childs Court’s holding that
a defendant is not entitled to an ability-to-pay hearing before a court imposes
court costs at sentencing. Id. at *5. The Lopez Court added:
To be clear, nothing in this opinion is meant to strip the trial court
of its ability to exercise its discretion to conduct such a hearing at
- 12 -
J-S50005-20
sentencing. There is no doubt that it is the trial court, and not
this Court, which is in the best position to evaluate its own docket
and schedule this hearing. We merely hold that nothing in the
Rules of Criminal Procedure, the Sentencing Code[,] or
established case law takes that discretion away from the trial court
unless and until a defendant is in peril of going to prison for failing
to pay the costs imposed on him. It is only at that point that the
mandate for an ability-to-pay hearing arises. Because [the
appellant] had not yet been threatened with incarceration as a
result of a default, we hold that the trial court did not err by
imposing mandatory court costs upon [him] without first holding
an ability-to-pay hearing.
Id.
Here, Leister has only been sentenced to pay the costs of prosecution.
She is not facing incarceration for failure to pay those costs. Accordingly, we
uphold the trial court’s determination that she was not entitled to an ability-
to-pay hearing.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2021
- 13 -