Commonwealth v. Gooseby-Byrd , 188 A.3d 1186 ( 2018 )

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2018 PA Super 134COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
V. :
:
:
YVONNE DONNA GOOSEBY-BYRD, :
:
Appellant : No. 2786 EDA 2017
Appeal from the Judgment of Sentence May 25, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007267-2016
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
OPINION BY MURRAY, J.: FILED MAY 23, 2018
Yvonne Gooseby-Byrd (Appellant) appeals from the judgment of
sentence imposed after the trial court convicted her of driving under the
influence (DUI) of alcohol, 75 Pa.C.S.A. § 3802(a)(2). We affirm.
The trial court recounted the facts as follows:
On August 19, 2016 at about 1:38 a.m., Officer Jonathan
McGowan of the Lansdowne Borough Police Department was
called to 73 East Greenwood Avenue to investigate a disturbance
in the area. N.T., 5/25/17, p. 5, 25. He arrived at the location
about two minutes after [the] initial call. Id. at 26. Upon his arrival
he saw a silver sedan parked and occupied by three women who
were arguing loudly. [Appellant] was in the driver’s seat and two
passengers were in the rear of the vehicle. Id. at 7-8, 26. Officer
McGowan approached [Appellant] and told her that he was called
to the area due to a complaint about noise and asked her to
produce her driver’s license, registration and proof of insurance.
She provided her driver’s license and a rental agreement for the
vehicle bearing her name. Id. at 9, 31. Officer McGowan testified
credibly that the vehicle was running with the keys in the ignition.
Id. at 97. As he approached he saw that the vehicle’s windshield
was severely cracked. He asked about the damage and [Appellant]
told him that a pedestrian jumped on the vehicle earlier when the
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* Former Justice specially assigned to the Superior Court.
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group was leaving a club in West Philadelphia. Id. at 10, 27.
[Appellant] told him that she did not drink alcohol at the club but
that her sisters had. Id. at 9-10. She stated that they were in the
neighborhood looking for a relative’s house. During this
interaction the officer detected the strong odor of alcohol coming
from the passenger compartment. He also observed that
[Appellant’s] eyes were glassy and bloodshot and her speech was
slurred. Her passengers exhibited the same features. Id. at 11.
Officer McGowan asked [Appellant] to exit the vehicle. She
was unsteady on her feet, had a staggered gait as she walked to
the back of her vehicle, [and was] using the vehicle for support.
Three field sobriety tests followed and [Appellant] failed each of
the tests. She participated in a preliminary breath test. The officer
concluded that [Appellant] was incapable of safe driving and
placed her under arrest. Id. at 11-16. Thereafter he read her an
Implied Consent form which she signed, agreeing to blood testing.
A blood test measured her BAC at .088%. Id. at 19-20.
Throughout this entire episode, at no time did either [Appellant]
or her sisters say that [Appellant] was not the driver of the
vehicle. Id. at 32.
[At trial, Appellant] testified in her own defense and also
offered the testimony of her sister, Linese, who was in the vehicle.
Both women admitted that during the course of their interaction
with McGowan, before and after the arrest, no one ever said that
Linese was the driver of vehicle, not [Appellant]. Id. at 50, 87-
90.
Trial Court Opinion, 9/20/17, at 4-6.
Appellant was charged with DUI and a bench trial commenced on May
25, 2017. The same day, the trial court rendered its guilty verdict and
sentenced Appellant to six months of probation plus costs and community
service. N.T., 5/25/17, at 103-104. Appellant filed a motion for post-trial
relief assailing the sufficiency of the evidence, as well as a motion for
reconsideration of sentence. After a hearing on July 18, 2017, the trial court
denied the motions. Appellant filed this timely appeal.
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Appellant presents a single issue for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO CONVICT
[APPELLANT] OF DUI BEYOND A REASONABLE DOUBT WHERE THE
TRIAL TESTIMONY PRECLUDED ANY LAWFUL INFERENCE THAT
SHE WAS OPERATING, OR IN CONTROL OF THE VEHICLE IN
QUESTION WHEN THE POLICE ARRIVED ON THE SCENE.
Appellant’s Brief at 7.
In reviewing a sufficiency claim, our Supreme Court has summarized:
When reviewing a challenge to the sufficiency of the evidence, we
must determine if the Commonwealth established beyond a
reasonable doubt each of the elements of the offense, considering
the entire trial record and all of the evidence received, and
drawing all reasonable inferences from the evidence in favor of
the Commonwealth as the verdict-winner. The Commonwealth
may sustain its burden of proof by wholly circumstantial evidence.
Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009) (citations
omitted).
Instantly, Appellant was convicted under the following provision of the
Vehicle Code:
(a) General impairment.--
...
(2) 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 0.08% but less than 0.10%
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.A. § 3802(a)(2).
Appellant states that “[t]he factual issue contested in the present case
was whether Appellant ever operated the automobile she was found in on the
evening of August 19, 2016 after she had ingested the alcohol measured in
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her blood.”1 Appellant’s Brief at 12. Appellant emphasizes that police “never
saw her operating the vehicle” and argues there was “insufficient evidence
that she had driven the car to the location to which the police were called.”
Id. at 13. Appellant asserts “it was incumbent upon the prosecution to prove
[Appellant] was the one who drove the vehicle to the location” and “they
completely failed to do so as the only testimony relevant to the issue was that
of Linese Byrd who forthrightly told the court that she was the one who drove
the car there.” Id. at 14. Appellant concludes “there existed no factual basis
from which to infer that Appellant ever operated the vehicle in question while
her BAC was above the legal limit.” Id. We disagree.
The trial court convicted Appellant of DUI-general impairment under 75
Pa.C.S.A. § 3802(a)(2). Our Supreme Court has stated that the statute
“defines the offense to include two elements: that the individual drove after
drinking alcohol, and that the amount of alcohol ingested before driving was
enough to cause the individual’s BAC level to be at least 0.08 percent and
below 0.10 percent within two hours after driving.” Commonwealth v.
Duda, 923 A.2d 1138, 1147 (Pa. 2007) (emphasis in original, footnote
deleted).
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1 Appellant’s sole argument is that she was not the driver of the vehicle; she
does not contest the taking of the blood draw, the results, or the two-hour
timeframe prescribed in 75 Pa.C.S.A. § 3802(a)(2).
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Instantly, in addition to introducing into evidence the BAC results from
Appellant’s blood draw, the Commonwealth presented circumstantial evidence
which led police to believe that Appellant drove the vehicle after drinking
alcohol. Officer Jonathan McGowan testified to responding to a call of
“subjects arguing out front possibly in a vehicle.” N.T., 5/25/17, at 5. Officer
McGowan did not see Appellant drive the vehicle, nor did he see the vehicle in
motion. Id. at 29-30. Rather, when Officer McGowan arrived, three women
were sitting in the car and Appellant was in the driver’s seat; Officer McGowan
testified that the vehicle “was running.” Id. at 6-10. Officer McGowan noticed
that the vehicle’s windshield was “severely damaged, spidered and cracked.”
Id. at 10. When Officer McGowan inquired, Appellant told the officer that the
women were coming from a club in West Philadelphia, and a pedestrian
jumped onto the vehicle as they were leaving the club. Id. at 9-10, 32.
Officer McGowan testified:
At the time I could smell a strong odor of alcohol beverage
emanating from the vehicle itself, and I observed [Appellant]
displaying glassy, bloodshot eyes, and her speech was slurred.
Id. at 10. He added that when he asked Appellant to exit the vehicle, “[w]hile
she was stepping out of the vehicle and walking to the rear, she appeared to
be very unsteady on her feet. She had a staggered gait, and she wasn’t able
to stand up straight and walk normally.” Id. at 11. Appellant also failed field
sobriety tests. Id. at 13-15. Thus, Officer McGowan asked Appellant to
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consent to a blood draw. Appellant agreed and signed the appropriate
paperwork; the test showed Appellant’s blood alcohol content to be .088. Id.
at 21.
Appellant’s sister, Linese Byrd, testified that she was one of the
individuals with Appellant when Officer McGowan arrived. Id. at 34-39. Ms.
Byrd stated that she and Appellant and their other sister had been celebrating
Appellant’s birthday, but pulled over and got out of the car because Appellant
and her other sister were arguing. Id. at 38-39. Ms. Byrd claimed that she
had been driving until the three sisters exited the car. Id. at 39. She said
that the women were outside of the car when the police arrived and instructed
the women to get back inside of the car. Id. at 40. Ms. Byrd testified that
Appellant never drove the vehicle. Rather, Ms. Byrd drove because she was
not drinking and “knew [Appellant] would be drinking.” Id. at 41, 45, 59.
She conceded that even after Appellant was arrested, Ms. Byrd never told the
police that Appellant had not been driving. Id. at 50, 53. She explained that
she was reluctant to admit to driving because she did not have a license. Id.
at 53-54, 56. It was not until trial that Ms. Byrd indicated that she was the
driver of the vehicle. Id. at 63.
Appellant also testified that her sister, Linese Byrd, was the driver of the
vehicle. Id. at 69. She corroborated her sister’s testimony that the sisters
were arguing and exited the vehicle. Id. at 71. She stated that the police
arrived and asked the women to get back into the vehicle; Appellant stated
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that even though she had not been driving, she got into the driver’s seat
because “the vehicle is rented to me, it’s in my name, and I didn’t feel [any]
need to not get into the driver’s seat.” Id. at 73. She added that she
“absolutely” felt okay to drive. Id. at 76. Appellant testified that Officer
McGowan told her to exit the vehicle because he “smelled liquor.” Id. at 87.
She admitted that she never told him that she was not driving because he did
not ask, and “[i]t wasn’t about whether I was driving. I think that he could
see that I wasn’t driving.” Id. at 87-88.
On this record, the trial court found Appellant guilty of DUI-general
impairment. In rejecting Appellant’s sufficiency claim, the court expressly
found the testimony of Ms. Byrd and Appellant to be “completely lacking in
credibility as it was riddled with inconsistencies throughout.” Trial Court
Opinion, 9/20/17, at 6. The court concluded that “[t]heir self-serving
testimony was incredulous.” Id. Accordingly, the evidence was sufficient for
the trial court to establish beyond a reasonable doubt that Appellant drove a
vehicle under the influence of alcohol as proscribed by Section 3802(a)(2).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/18
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