Com. v. Garcia, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
AMADOR CURIEL GARCIA
Appellant No. 2112 MDA 2016
Appeal from the Judgment of Sentence November 22, 2016
In the Court of Common Pleas of Fulton County
Criminal Division at No(s): CP-29-CR-0000018-2016
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 15, 2017
Amador Curiel Garcia appeals from his judgment of sentence of sixty
months county intermediate punishment, including ninety days
incarceration, imposed after the trial court convicted him of one count of
driving under the influence (“DUI”) – general impairment, one count of DUI
– highest rate of alcohol, and careless driving. We affirm.
The following facts underlie this matter. At approximately 4:45 p.m.,
on October 25, 2015, Trooper Richard Hughes responded to a reported
domestic dispute occurring at the Downes Motel in Fort Littleton, Fulton
County. Upon arriving at the scene, Trooper Hughes observed Appellant
sitting in the driver’s seat of a black Dodge Durango, which was still running
while parked in the motel parking lot. Appellant indicated that he was
* Former Justice specially assigned to the Superior Court.
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transporting his daughter to State College, where she attended Pennsylvania
State University.
While conversing with Appellant, Trooper Hughes detected the odor of
alcohol emanating from the vehicle. He noted that Appellant’s breath also
smelled of alcohol, that he had glassy, bloodshot eyes, and that his speech
was slurred. Appellant denied imbibing any alcohol. Nevertheless, based on
his observations, Trooper Hughes suspected that Appellant could not safely
operate the vehicle, and asked him to exit the vehicle. Following field
sobriety tests, Appellant agreed to take a preliminary breath test. As a
result of these assessments, Trooper Hughes transported Appellant to the
Fulton County Medical Center. A blood test was administered, and the
subsequent results revealed that Appellant had a blood alcohol content of
.162% within two hours of operating the vehicle.
Following a bench trial, Appellant was convicted of the aforementioned
offenses. He filed a timely notice of appeal and complied with the trial
court’s order to file a Rule 1925(b) concise statement of errors complained
of on appeal. The trial court authored a Rule 1925(a) opinion and this
matter is now ready for our review.
Appellant raises a single question for our consideration: “Was the trial
court’s finding that Appellant was seated in the driver’s seat of a running
vehicle sufficient to find that he was in actual physical control of the vehicle,
when the record established that Appellant was joined by another licensed
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driver, the vehicle was appropriately parked in a motel parking space, and
Appellant was engaged in a telephone conversation with his wife?”
Appellant’s brief at 5.
Appellant contests the sufficiency of the evidence underpinning his DUI
convictions. A challenge to the sufficiency of the evidence raises a question
of law. Thus, our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super. 2017).
Further, “[i]n assessing Appellant’s sufficiency challenge, we must determine
whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that the Commonwealth proved
[each] element of the crime beyond a reasonable doubt.” Id. (citation
omitted). In addition, “[t]he evidence need not preclude every possibility of
innocence and the fact-finder is free to believe all, part, or none of the
evidence presented.” Id. (citation omitted).
Appellant asserts that there was insufficient evidence to convict him of
DUI. The relevant statute reads, in pertinent part, as follows:
(a) General Impairment.--
(1) 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.
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....
(c) Highest rate of alcohol.--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
alcohol concentration in the individual’s blood or breath is
0.16% or higher within two hours after the individual has
driven, operated or been in actual physical control of the
movement of the vehicle.
75 Pa.C.S. § 3802(a) and (c).
Specifically, Appellant argues that the Commonwealth failed to
establish that he was in actual physical control of the vehicle as required by
the Crimes Code.1 He maintains that, under the totality of the
circumstances, the Commonwealth did not adduce any proof that Appellant,
rather than his daughter, was driving the vehicle. He asserts that his
daughter was a licensed driver, that the car was parked in the motel parking
lot when the police arrived, and, although Appellant was sitting in the
driver’s seat, he was merely talking on the phone with his wife at the time.
Appellant further questions the reliability of Trooper Hughes’ testimony that
the vehicle was running during the traffic stop, and downplays the
implication that he himself conceded that he was “taking” his daughter to
State College. Appellant’s brief at 10. Thus, he concludes that the record
does not support his convictions for DUI.
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1
During the bench trial, the parties stipulated that Appellant’s blood was
drawn at 5:45 p.m., and that subsequent testing revealed he had a blood
alcohol content of .162%. N.T. Trial, 8/30/16, at 16-17.
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We observe that the term “operate” as used in § 3802 “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. Lees, 135 A.3d 185, 189
(Pa.Super. 2016) (citation omitted). When determining whether the
Commonwealth proffered evidence that an individual was operating or in
actual physical control of the vehicle, we consider the following factors: “the
motor running, the location of the vehicle, and additional evidence showing
that the defendant had driven the vehicle.” Commonwealth v. Toland,
995 A.2d 1242, 1246 (Pa.Super. 2010) (citation omitted). We make this
determination based on the totality of the circumstances. Id.Instantly, Trooper Hughes testified that, when he approached
Appellant’s vehicle, the car was running and Appellant was sitting in the
driver’s seat. N.T. Trial, 8/30/16, at 7-9. During questioning, Appellant
stated that “he was taking his daughter to college in State College, PA.” Id.
at 10, 13. The trooper also noted that the parking lot was open to the
public. Id. at 13-14. The record further reveals that the two were traveling
from Fredrick, Maryland, and had a dispute during that trip which gave rise
to the police being called.
Upon review of the certified record, we find that, when viewing the
evidence in the light most favorable to the Commonwealth as verdict winner,
there is sufficient evidence to support Appellant’s convictions for DUI beyond
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a reasonable doubt. Under the totality of the circumstances, the trier-of-fact
could have reasonably inferred from Appellant’s location in the driver’s seat,
with the engine running, that he had been in actual physical control of the
vehicle as he and his daughter traveled from Maryland to State College.
This inference is corroborated by Appellant’s concession that he was “taking
his daughter to college.” Id. at 10. Further, although Appellant did not
directly challenge this aspect of the crime, it is well-established that a
parking lot that is used by the public constitutes a “trafficway” for the
purposes of the Vehicle Code. Lees, supra at 189 (observing, “Even if
restricted by signs, if a parking lot is used by members of the public, it is a
trafficway for purposes of 75 Pa.C.S. § 3101.” (citing Commonwealth v.
Wilson, 553 A.2d 452, 454 (Pa.Super. 1989)).
Moreover, we note that Appellant’s argument that another licensed
driver was present is of no moment, as the evidence adduced at trial need
not preclude every possibility of innocence. Giron, supra. Finally, the court
credited the testimony of Trooper Hughes, and that testimony is supported
by the evidence of record. Hence, when considering the totality of the
circumstances in the light most favorable to the Commonwealth as verdict
winner, there was sufficient evidence to support Appellant’s conviction for
DUI. As such, Appellant’s claim fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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