Com. v. Helman, H., Jr. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HARRY EUGENE HELMAN, JR.,
Appellant No. 345 MDA 2015
Appeal from the Judgment of Sentence January 21, 2015
in the Court of Common Pleas of Franklin County
Criminal Division at No.: CP-28-CR-0001008-2014
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 22, 2015
Appellant, Harry Eugene Helman, Jr., appeals from the judgment of
sentence imposed following his bench conviction of driving under the
influence (DUI)-general impairment, 75 Pa.C.S.A. § 3802(a)(1).
Specifically, he challenges the sufficiency of the evidence. We affirm.
We take the following facts from the trial court’s March 26, 2015
opinion and our independent review of the record. On the evening of April
11, 2014, Corporal Lloyd Perkins of the Washington Township Police
Department responded to a call from a mobile home park resident about a
single vehicle crash at 12222 Polktown Road, in the area of Lot twenty-five.
He found an unattended truck stuck in the embankment, just off the paved
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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road that runs through the mobile home park. After determining that the
truck belonged to Appellant, Corporal Perkins went to his home at lot forty-
one, but there was no answer at the door. (See N.T. Trial, 10/23/14, at
19). Eventually, Corporal Perkins found Appellant hiding nearby in a briar
patch down an embankment between lots twenty-five and twenty-six. (See
id. at 19-20). When the officer asked him what happened with the truck, he
responded, “I don’t know . . . I lost control.” (Id. at 20). Appellant later
told Corporal Perkins that he actually had not been driving, but he would not
provide the name of the alleged driver, or complete a written statement.
(See id. at 20, 31).1
The Commonwealth filed an information on June 27, 2014, charging
Appellant with DUI-general impairment. The one-day non-jury trial occurred
on October 23, 2014.
At trial, Corporal Perkins and Appellant’s neighbor, Travis Hutchinson,
testified on behalf of the Commonwealth. Appellant and his nephew, Nathan
Stroman, testified on behalf of Appellant.
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1
Corporal Perkins arrested Appellant for DUI on the bases that his eyes
were glassy, his breath smelled of alcohol, he admitted he had been drinking
alcohol, and he failed the field sobriety tests. (See N.T. Trial, 10/23/14, at
21-23, 30). When Appellant was transported to Waynesboro Hospital, he
refused to submit to chemical testing or sign a form that he had been
informed about the consequences of failing to do so. (See id. at 30-31).
Appellant does not allege that he was not drinking on the night in question.
(See Appellant’s Brief, at 10-16).
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Mr. Hutchinson testified that, on the night in question, he saw a truck
hanging from a hill near his house in the mobile home park. (See id. at 5-
6). The truck’s tail lights were on, the wheels were spinning, and the engine
was revving. (See id. at 7). When Appellant got out of the driver’s seat
and asked for assistance, Mr. Hutchinson noticed that he smelled of alcohol.
(See id. at 8-10). He did not see anyone other than Appellant and their
neighbor, Jen Bair, in the area of the truck. (See id. at 7). On cross-
examination, Mr. Hutchinson confirmed that he saw the truck on the grassy
hill with spinning tires, but did not see how it came to be off of the
pavement. (See id. at 12).
Mr. Stroman and Appellant both testified that, on the subject night,
Mr. Stroman offered to drive Appellant home from his sister’s house in St.
Thomas, Pennsylvania, because he had been drinking a lot. (See id. at 40-
41, 52). They stated that the truck ended up on the embankment when Mr.
Stroman turned quickly. (See id. at 41, 42, 44, 56). Mr. Stroman then left
his uncle at the truck, and got a ride home from a friend. (See id. at 44-
45). Appellant stated that he hid in the weeds when he saw Corporal
Perkins arrive because he was afraid of being arrested for public intoxication.
(See id. at 53, 55). Although Appellant mentioned his nephew at the police
station, he did not give the police Mr. Stroman’s name as the person who
had been driving the truck when the accident occurred. (See id. at 55).
Also, Mr. Stroman did not go to the police or the District Attorney, because
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he was concerned he would get in trouble for driving without a license. (See
id. at 45-46).
In addition to testifying about the night in question, Corporal Perkins
stated that, when he returned to the scene of the incident the next day to
complete his accident investigation, he noted striation marks on the
pavement that appeared to be the result of a rapid right hand turn and
vehicle acceleration. (See id. at 25, 27). Photographs that he took of the
scene showed numerous residences and several vehicles parked adjacent to
the road. (See Commonwealth Exhibits, 8, 11, 12).
At the conclusion of trial, the court found the testimony of Appellant
and Mr. Stroman incredible, and convicted Appellant of DUI-general
impairment. On January 21, 2015, the court sentenced Appellant to not less
than thirty days nor more than six months’ incarceration. It granted
Appellant bail pending appeal.
Appellant filed a timely notice of appeal on February 20, 2015. On
February 23, 2015, the court ordered him to file a Rule 1925(b) statement,
which he did on March 9, 2015. See Pa.R.A.P. 1925(b). The court filed an
opinion on March 26, 2015. See Pa.R.A.P. 1925(a).
Appellant raises one issue for this Court’s review:
Was the [t]rial [c]ourt’s verdict supported by sufficient evidence
to convict the Appellant of Driving Under the Influence where the
only witness who saw Appellant behind the wheel of a vehicle
was a lay witness who [saw] Appellant trying to get the vehicle
unstuck from an area that was not either a “highway or
trafficway” as those terms are defined in the vehicle code[?]
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(Appellant’s Brief, at 7). Specifically, Appellant maintains “there was
insufficient evidence that he ‘drove, operated, or was actual physical control
of the movement of a motor vehicle’ on either a highway or trafficway.” (Id.
at 10; see id. at 15-16). Appellant’s issue is waived and lacks merit.
“It is well settled that the argument portion of an appellate brief must
be developed with pertinent discussion of the issue, which includes citations
to relevant authority. Pa.R.A.P. 2119(a).” Commonwealth v. Knox, 50
A.3d 732, 748 (Pa. Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013)
(case citation omitted). Here, although Appellant provides citations to the
Vehicle Code and to boilerplate law for our standard of review, he only
provides one citation, Commonwealth v. McFadden, 547 A.2d 774 (Pa.
Super. 1988), in support of his argument that the evidence was insufficient
to support his conviction. (See Appellant’s Brief, at 11-16).
However, “McFadden is a plurality decision and, therefore, is not
binding.” Commonwealth v. Zabierowsky, 730 A.2d 987, 991 (Pa. Super.
1999) (citation omitted); see also Commonwealth v. Wilson, 553 A.2d
452, 454 (Pa. Super. 1989), appeal denied, 562 A.2d 826 (Pa. 1989)
(“McFadden is a plurality opinion with one judge concurring in the result
and one judge dissenting. It’s interpretation of [75 Pa.C.S.A.] § 3101 has
no precedential value in this Commonwealth.”). Therefore, Appellant has
failed to provide pertinent argument, and this issue is waived. See Knox,
supra at 748. Moreover, Appellant’s claim would not merit relief.
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Our standard of review of sufficiency of the evidence challenges is
well-settled:
The standard we apply in reviewing the
sufficiency of the evidence is whether viewing all the
evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the
above] test, we may not weigh the evidence and
substitute our judgment for the fact-finder. 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 [finder] 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.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations omitted).
The trial court convicted Appellant of DUI-general impairment. The
Vehicle Code provides, in pertinent part, that: “An individual may not drive,
operate or be in actual physical control of the movement of a vehicle after
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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.” 75 Pa.C.S.A. § 3802(a)(1). The prohibition
applies “upon highways and trafficways throughout this Commonwealth.” 75
Pa.C.S.A. § 3101(b). A highway is: “The entire width between the
boundary lines of every way publicly maintained when any part thereof is
open to the use of the public for purposes of vehicular travel. . . .” 75
Pa.C.S.A. § 102. A trafficway is defined as: “The entire width between
property lines or other boundary lines of every way or place of which any
part is open to the public for purposes of vehicular travel as a matter of right
or custom.” Id.
In this case, Appellant argues that the evidence was insufficient to
support his conviction because, “[e]ven viewing [it in] the light most
favorable to the Commonwealth, there was not one witness who testified
that they saw Appellant drive on either a highway or trafficway.”
(Appellant’s Brief, at 15). This argument would lack merit.
We first observe that “the suspect location of an automobile supports
an inference that it was driven[.]” Commonwealth v. Woodruff, 668 A.2d
1158, 1161 (Pa. Super. 1995) (citation omitted). Therefore, Appellant’s
allegation that the Commonwealth failed to establish that he “‘drove,
operated, or was in actual physical control of the movement of a motor
vehicle’ on either a highway or trafficway[,”] because his truck was only
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seen “off the road, down an embankment[,]” lacks merit. (Appellant’s Brief,
at 10); see also Woodruff, supra at 1161.
Second, we find any attempted argument that the Commonwealth
failed to establish the elements of DUI because the trailer park road is not a
traifficway or roadway to be contradicted by relevant Pennsylvania caselaw.
(See id. at 10-16).
For example, in Commonwealth v. Cameron, 668 A.2d 1163 (Pa.
Super. 1995), this Court concluded that a person on a private parking lot
could be liable for DUI because:
[T]enants, employees, and others who have the advantage of a
restricted parking facility still deserve and expect to be protected
from incidents involving serious traffic offenses. Thus, the public
use component of Section 102 can be satisfied even where
access to a parking lot is restricted, but where there are a
sufficient number of users[.]
Cameron, supra at 1164; see also Zabierowsky, supra at 991 (finding
that public parking garage allowing parking through taking of ticket upon
entrance and payment of fee upon exit was trafficway, for purposes of DUI
statute); Commonwealth v. Karenbauer, 574 A.2d 716, 718 (Pa. Super.
1990) (finding alleyway that accessed three residences and led to
government building was highway or trafficway for DUI purposes); Wilson,
supra at 454 (parking lot of club was trafficway for purposes of DUI
statute); Commonwealth v. Baughman, 516 A.2d 390, 391 (Pa. Super.
1986), appeal denied, 527 A.2d 534 (Pa. 1987) (concluding dirt track with
no signs or barriers prohibiting access was trafficway).
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Here, our review of the record does not reveal that the trailer park
road was restricted in any way. Also, testimony established that there were
several residential lots, there were other trailer park residents identified, and
Corporal Perkins found Appellant, who lived in lot forty-one, hiding in a briar
patch between lots twenty-five and twenty-six, thus further evidencing the
existence of several residences. (See N.T. Trial, 10/23/14, at 17, 19-20).
Indeed, photographs of the crash scene show numerous homes and several
vehicles parked adjacent to the trailer park road. (See Commonwealth’s
Exhibits 8, 11, 12). Based on the foregoing, we conclude that the
Commonwealth established that the trailer park road was a trafficway for
purposes of section 102. See Zabierowsky, supra at 991; Cameron,
supra at 1164; Karenbauer, supra at 718; Wilson, supra at 454;
Baughman, supra at 391.
Accordingly, viewing the evidence in the light most favorable to the
Commonwealth, we conclude that it was sufficient to support a conviction of
DUI-general impairment. See Harden, supra at 111. Appellant’s issue,
even if not waived, would not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2015
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