Com. v. Peters, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH O. PETERS
Appellant No. 1287 WDA 2014
Appeal from the Judgment of Sentence July 11, 2014
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000514-2012
CP-62-CR-0000585-2012
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2015
Kenneth O. Peters appeals from the judgment of sentence imposed by
the Court of Common Pleas of Warren County following his convictions for
several offenses arising out of a motor vehicle accident and the subsequent
discovery by police of Peters in control of a vehicle while intoxicated. After
careful review, we affirm.
On September 28, 2012, at approximately 10:00 p.m., Justin Justice
was driving his vehicle in Glade Township, Warren County, with his
passenger, T.J. Danielson (T.J.). As they went around a corner, at thirty
miles per hour, a dark-colored Ford pickup truck hit the side of the vehicle
behind the driver’s side headlight, and continued along the driver’s side of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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the car up to the taillight. The truck drove off without stopping. When
Trooper Gregory Murphy arrived on the scene, he found a piece of a red
taillight, with distinctive red duct tape, along the side of the road and a foot-
long piece of plastic that appeared to be part of the top of a pickup truck
bumper. Justice’s vehicle was taken to an impound lot.
That evening, T.J. told his brother, C.D. Danielson (C.D.), about the
accident. At approximately 12:30 a.m. on September 29, 2012, Justice
received a phone call from C.D. telling him that he saw a dark colored Ford
pickup that matched the description of the one involved in the accident,
parked partially in the road near 5th Avenue Extension and Jackson Avenue
Extension. Someone was sleeping on the bench seat in the cab of the truck
with his head toward the passenger door.
C.D. left the scene, picked up Justice and T.J. and drove them to the
spot where he found the truck. When Justice saw the damage on the truck,
he called the police.
When Officer Nicholas Bryan of the Warren City Police Department
arrived at approximately 1:30 a.m., he saw that the lights and dome light of
the truck were on, and that the engine was running. He looked inside and
saw Peters “lying on his side in the area of the front seat of the truck, with
his head towards the passenger’s seat, and within reach of the controls of
the pickup truck.” Trial Court Opinion, 10/1/14, at 4. When Peters failed to
respond to Officer Bryan knocking on the window, the officer opened the
door, noticed the smell of alcohol, and woke Peters. Peters did not know
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where he was or how he got there. Office Bryan directed Peters to turn off
the engine and removed the keys.
Trooper Andrew Goss arrived on the scene, and recognized signs that
Peters was intoxicated. During the course of their interaction, he noticed
that Peters had a can of beer stuffed into his pant leg and another in his
sock. He also determined that Peters had defecated on himself. The trooper
administered field sobriety tests, which Peters failed, and at 1:50 a.m. the
trooper placed Peters in his police vehicle to transport him to Warren
General Hospital for a blood draw. The blood draw occurred at
approximately 2:39 a.m., and revealed that Peters’ blood alcohol content
was between .14 and .17 percent
Police took Peters’ truck to the same impound lot as Justice’s vehicle.
There, “Trooper Murphy was able to match the pieces of the vehicle left [at]
the scene of the hit and run the previous night with the damage he observed
on [Peters’] vehicle.” Id. at 5.
On May 12, 2014, at the conclusion of a one-day trial, a jury convicted
Peters of accident with damage to attended vehicle/property. 1 The court
then found Peters guilty of violating statutes regarding driving on roadways
laned for traffic,2 driving a vehicle at safe speed,3 and immediate notice of
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1
75 Pa.C.S. § 3743(a).
2
75 Pa.C.S. § 3309(1)(a).
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accident to police department.4 The court also found him guilty of careless
driving,5 driving under the influence of alcohol high rate BAC,6 and driving
under the influence of alcohol general impairment.7
On July 11, 2014, the court sentenced Peters to five days to six
months in the Warren County Prison for DUI, with credit for time served and
immediate eligibility for parole. On the count of accident with damage to
attended vehicle/property, the court imposed a consecutive sentence of one
year’s probation. The court also suspended Peters’ operating privileges for
eighteen months and imposed fines and mandatory surcharges for the
summary offenses.
Peters filed a notice of appeal and in response to an order from the
trial court, he filed a statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b) on August 15, 2014. On October 1, 2014, the trial
court filed its Rule 1925(a) opinion.
This timely appeal followed in which Peters raises the following issues
for our review:
_______________________
(Footnote Continued)
3
75 Pa.C.S. § 3361.
4
75 Pa.C.S. § 746(a)(2).
5
75 Pa.C.S. § 3714(a).
6
75 Pa.C.S. § 3802(b).
7
75 Pa.C.S. § 3802(a)(1),
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1. Is the evidence sufficient to prove beyond a reasonable doubt
that [Peters] was the driver of his vehicle at the time of the
motor vehicle accident giving rise to the charges under
Warren County Docket No, 585 of 2012?
2. Is the evidence sufficient to prove beyond a reasonable doubt
that [Peters] drove, operated, or was in actual physical
control of the movement of his truck on the occasion giving
rise to the DUI charges?
3. Were the cases improperly consolidated as the facts giving
rise to the case were several hours apart in time and there is
insufficient evidence between the two cases?
Appellant’s Brief, at 9.
Where an appellant challenges the sufficiency of the evidence, this
Court “must determine whether the evidence and all reasonable inferences
deducible therefrom, when viewed in the light most favorable to the verdict-
winner . . . are sufficient to establish all elements of the crime charged
beyond a reasonable doubt.” Commonwealth v. Rakowski, 987 A.2d
1215, 1217 (Pa. Super. 2010) (quoting Commonwealth v. Parker, 957
A.2d 311, 317 (Pa. Super. 2008) (citations omitted)). Further, “the
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)
(citations omitted). “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.” Id. at 26-27.
Peters argues that because no one testified that they saw him driving
at the time of the accident, there was insufficient evidence that he
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committed any offenses arising out of the accident. He relies primarily on
the fact that at trial, both Peters and his sister testified that on the night in
question their stepfather, who died prior to trial, drove the truck. However,
Trooper Goss testified that Peters volunteered that “nobody had driven his
vehicle, but him.” N.T. Trial, 5/12/14, at 118.
Justice testified that a dark colored truck crossed into his lane of traffic
striking his Honda Civic on the driver’s side and rendering the vehicle
inoperable. The truck drove away without the driver stopping to exchange
information with Justice. Trooper Murphy later testified that when he arrived
at the accident scene he recovered a piece of a rear tail light with red duct
tape on it and a section of a rear bumper cover. The next day he matched
those pieces up to missing portions of Peters’ vehicle.
Officer Bryan testified that when he opened the cab of Peter’s truck,
there was “a moderate to strong odor of alcohol within the vehicle and when
[Peters] was speaking with me. I also inquired if he had been drinking that
night. And, he said, not for a while.” Id. at 48. Trooper Goss testified that
when he arrived on the scene, Peters “was definitely under the influence of
alcohol at that point.” Id. at 99.
John Graves, the laboratory manager at Warren General Hospital
testified that the blood sample drawn from Peters revealed a BAC between
.14 and .17 percent.
Viewed in the light most favorable to the Commonwealth as verdict
winner, Rakowski, supra, the evidence was sufficient for the finder of fact
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to conclude that Peters, while intoxicated, drove his truck into the opposing
lane of traffic, struck Justice’s vehicle causing significant damage, and fled
the scene. The fact that the Commonwealth’s case relied heavily on
circumstantial evidence does not compromise the integrity of the verdicts
reached by the jury and the trial court. Abed, supra. The testimony cited
above, which the finders of fact credited, was sufficient to establish that
Peters committed the offenses that arose out of the motor vehicle accident.
Peters next argues that the Commonwealth failed to present sufficient
evidence to support his conviction for driving under the influence.
Section 3802 of the Motor Vehicle Law provides, in relevant part:
§ 3802. Driving under the influence of alcohol or controlled
substance
(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.
...
(b) High 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 at least 0.10% but less than 0.16% 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)(1),(b).
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Peters argues that even if he was the driver when the accident
occurred, the Commonwealth did not prove that he was under the influence
of alcohol at that time nor that he was in actual physical control of the truck
when the police arrived. Appellant’s Brief, at 12-13.
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 (Pa. Super. 2003). “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) (citation omitted).
In Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), this
Court held that the Commonwealth presented sufficient evidence to establish
actual physical control by the appellant of a vehicle “which appeared to be
stationary in front of . . . a . . . store,” id. at 1244, with the engine running
and the headlights illuminated while the defendant was sleeping in the
driver’s seat. The appellant had a cold, unopened six-pack of beer on the
floor behind the driver’s seat, and the store he was in front of did not sell
alcoholic beverages. This Court held that a reasonable inference could be
made that the appellant drove to the location.
Although Peters does not address Toland, he refers to two other cases
which have similar facts, Commonwealth v. Woodruff, 668 A.2d 1158
(Pa. Super. 1995) (defendant sleeping while slumped over steering wheel as
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car running and lights on) and Commonwealth v. Crum, 523 A.2d 799 (Pa.
Super. 1987) (defendant sleeping behind steering wheel in running vehicle
on side of road). Peters distinguishes these cases from the instant matter
because rather than slumping over the steering wheel, he tipped over
sideways onto the bench seat of his truck. We find this difference to be
immaterial, and agree with the trial court that the Commonwealth proved
beyond a reasonable doubt that Peters was in actual physical control of the
vehicle while intoxicated.
Peters next asserts that the court by consolidating the two cases for
trial. Pa.R.Crim.P. 582 provides in relevant part:
Rule 582. Joinder – Trial of Separate Indictments or
Informations
(A) Standards
(1) Offenses charged in separate indictments or informations
may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so there is no
danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582(A)(1)(a-b).
Because the record reflects that Peters failed to raise a timely
objection to the consolidation of the cases, we agree with the trial court that
the issue is waived and cannot be addressed for the first time on appeal.
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See Pa.R.A.P. 302(a) (“Issues not raise in the lower court are waived and
cannot be raised on appeal.”)
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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