Com. v. Maldonado, R.

J-S04024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROSEANNA MALDONADO :
:
Appellant : No. 1477 EDA 2021
Appeal from the Judgment of Sentence Entered June 29, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0000655-2020
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 17, 2022
Roseanna Maldonado (Appellant) appeals from the judgment of
sentence imposed following her conviction of driving under the influence of
alcohol (DUI), 75 Pa.C.S.A. § 3802(b). We affirm.
The trial court summarized the relevant facts as follows:
On December 11, 2019, at approximately 12:00 a.m.,
Trooper Thomas G. Spurlock, Jr. was traveling near the Valley Fair
Shopping Center and noticed [Appellant’s] vehicle partially on a
grass hill in the parking lot of a hibachi restaurant [(the
restaurant),] located at 240 West Swedesford Road, Berwyn,
Chester County, Pennsylvania. The vehicle was stuck on a
[concrete] parking barrier, partially on the grass, and could not
be moved. [Upon approaching the vehicle, Trooper Spurlock saw
Appellant, the only occupant, in the driver’s seat.] The vehicle
was not in motion or damaged; however, the vehicle was still
running with the headlights turned on. Since the vehicle was
stuck, [Appellant] testified [at the January 21, 2021, non-jury
trial,] that she called Allstate insurance company at 11:35 p.m.,
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* Former Justice specially assigned to the Superior Court.
J-S04024-22
… after she left the restaurant.[1] Upon making contact with
[Appellant], Trooper Spurlock observed glassy eyes and an odor
of alcohol coming from [Appellant’s] breath. He asked whether
[Appellant had consumed] any alcoholic beverages that evening
and [she] replied that she had three drinks. [Appellant] agreed
to perform [standardized field] sobriety tests which produced
unsatisfactory results. [Appellant] also submitted to a chemical
test of her breath[, which revealed she had a blood alcohol
content] … of 0.113%.
At trial, Trooper Spurlock testified to the above facts. The
Commonwealth also presented for the court Trooper Spurlock’s
body camera [video] recording of the events that evening [(the
video)]. Based on the facts and the evidence presented at trial,
[Appellant] was found guilty of [DUI,] with the amount of alcohol
by weight in [her] blood being at least 0.10% but less than .16%
(75 Pa.C.S.A. § 3802(b)).
Trial Court Opinion, 8/18/21, at 1-2 (footnote added).
On June 29, 2021, the trial court sentenced Appellant to six months of
probation and a concurrent 10-days of electronic home confinement.
Appellant timely appealed. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
On appeal, Appellant presents a single issue: “Was the evidence
sufficient to support the conviction?” Appellant’s Brief at 4.
In reviewing a sufficiency challenge, the standard of review we apply is
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1 Appellant testified that her vehicle got stuck on the parking barrier when she
arrived at the restaurant hours earlier and was not intoxicated. N.T., 1/21/21,
at 31-32. It was only after she entered the restaurant to attend a holiday
party that she consumed alcohol. Id. at 32. When Appellant left the
restaurant at approximately 11:00 p.m., she returned to her vehicle and
discovered the vehicle was still immobilized; she then fell asleep until 11:30
p.m. Id. at 32-33.
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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. … 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.
Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019) (citations
omitted).
Appellant challenges her conviction under 75 Pa.C.S.A. § 3802(b), which
states:
(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.
Id. (emphasis added).
Our Supreme Court has explained:
With respect to what constitutes “actual physical control” in this
Commonwealth, the courts have held that whether a person is in
actual physical control of a motor vehicle is determined based on
the totality of the circumstances, including the location of the
vehicle, whether the engine was running and whether there was
other evidence indicating that the defendant had driven the
vehicle at some point prior to the arrival of police on the scene.
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Commonwealth v. Wolen, 685 A.2d 1384, 1385 (Pa. 1996) (plurality).
Furthermore, “an eyewitness is not required to establish that a defendant was
driving, operating, or was in actual physical control of a motor vehicle. The
Commonwealth can establish through wholly circumstantial evidence that a
defendant was driving, operating or in actual physical control of a motor
vehicle.” Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super.
2003).
Here, Appellant argues that although she “admitted to drinking, she was
not in physical control of the movement of the vehicle during the time when
she was under the influence. The location of the car supports the inference
that it had not been driven.” Appellant’s Brief at 12; see also id. at 19 (“there
was no corroborating evidence to support the court’s finding of control.”).
Appellant asserts:
The lack of damage to Appellant’s vehicle, the absence of any
tracks or marks on the parking lot with the weather conditions,[2]
and the absence of any witnesses defies the court’s position that
[Appellant] operated her vehicle after consuming alcohol and
drove forward over the barrier when she was leaving.
Id. at 19-20 (footnote added). Appellant emphasizes Trooper Spurlock’s
testimony that although the vehicle’s engine was running, he never saw the
vehicle in motion. Id. at 12 (citing N.T., 1/21/21, at 23-24).
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2 Trooper Spurlock testified the weather was cold and rainy. N.T., 1/21/21,
at 9.
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The trial court found no merit to Appellant’s sufficiency challenge. The
court explained:
[Appellant’s] vehicle was found stuck on a parking barrier, and
could not be moved by [Appellant] alone without roadside
assistance. The vehicle was clearly not capable of being in
motion; however, the headlights were turned on and the
vehicle’s motor was running. [Appellant] appeared upset on
the video produced at trial, and based on the [field sobriety and
chemical breath] tests, and by her own admission, intoxicated.
Equally important, these events occurred at midnight. The court
was not persuaded by [Appellant’s] version which relies on
the idea that [she] would wait until midnight to call
roadside assistance, hours after going over the barrier, and
simply leave the car on the grass for hours in the evening.
The totality of the circumstances established that [Appellant]
operated her vehicle after consuming alcohol and drove forward
over the barrier when she was leaving, getting stuck on the grass
hill.
Trial Court Opinion, 8/18/21, at 4-5 (emphasis added).
The evidence of record supports the trial court’s reasoning, and we
agree with its conclusion. Sitting as the factfinder, the trial court was free to
believe some, all, or none of the evidence presented at trial. See Smith,
supra. Appellant essentially asks us to substitute our judgment for that of
the trial court, and credit Appellant’s version of events over that of the
Commonwealth. This request implicates the weight of the evidence, not
sufficiency. See, e.g., Commonwealth v. Perez, 93 A.3d 829, 840 (Pa.
2014) (appellant’s claim that “his explanation of the events … negated the
Commonwealth’s theory of the case” went to weight of the evidence, not
sufficiency). Notably, Appellant did not raise a weight claim. To the extent
she attempts to present a weight claim on appeal, it is waived. See
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Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (failure
to preserve a weight claim at sentencing or in a post-sentence motion results
in waiver); see also Pa.R.A.P. 1925(b)(4)(vii) (any issues not raised in a Rule
1925(b) statement will be deemed waived).3
To the extent Appellant’s issue goes to the sufficiency of the evidence,
we, like the trial court, find that the issue lacks merit. The evidence of record
and all reasonable inferences drawn therefrom, viewed in a light most
favorable to the Commonwealth, was sufficient for the trial court to conclude
that Appellant had been in “actual physical control” of her vehicle while
intoxicated. See Commonwealth v. Peck, 242 A.3d 1274, 1279 (Pa. 2020)
(in reviewing a sufficiency challenge, an appellate court must view “all
reasonable inferences derived” from the evidence “in favor of the
Commonwealth,” not the defendant); see also Johnson, supra (the
Commonwealth may establish actual physical control through wholly
circumstantial evidence). We note our Supreme Court’s collected cases
concerning “actual physical control”:
Commonwealth v. Trial, 438 Pa. Super. 209, 652 A.2d 338(1994) (actual physical control found where defendant’s car was
diagonally across a roadway, defendant was in the car with his
seatbelt on, the parking lights were on and the keys were in the
ignition in the “on” position, although the engine was not
running); Commonwealth v. Wilson, 442 Pa. Super. 521, 660
A.2d 105 (1995) (actual physical control found where defendant’s
car was down an embankment by the roadside, no keys were
found, but the hood of the car was still warm on a winter night);
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3 Appellant raised only sufficiency in her Rule 1925(b) statement.
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Commonwealth v. Leib, 403 Pa. Super. 223, 588 A.2d 922,
alloc. denied, 528 Pa. 642, 600 A.2d 194 (1991) (actual physical
control found where defendant was asleep in the car in the middle
of the road with the engine off); Commonwealth v. Bobotas,
403 Pa. Super. 136, 588 A.2d 518 (1991) (actual physical control
found where defendant was parked in an alley on his way home
with his engine running); Commonwealth v. Crum, 362 Pa.
Super. 110, 523 A.2d 799 (1987) (actual physical control found
where defendant was sleeping in his car on the side of the road
with the engine and headlights on); Commonwealth v. Kloch,
230 Pa. Super. 563, 327 A.2d 375 (1974) (actual physical control
found where defendant was asleep behind the wheel of a car
parked along the side of the highway, protruding into a traffic lane
with the engine and headlights on); Commonwealth, Dep’t of
Transp., Bureau of Traffic Safety v. Farner, 90 Pa. Commw.
201, 494 A.2d 513 (1985) (actual physical control found where
defendant was behind the wheel in a traffic lane with the motor
running and the brake lights activated); cf. Commonwealth v.
Price, 416 Pa. Super. 23, 27, 610 A.2d 488, 490 (1992) (no actual
physical control established where the defendant was sitting
behind the wheel of a parked car; the engine was not running
and the defendant had the keys in his hands).
Wolen, 685 A.2d at 1386 (emphasis added).
Finally, Appellant’s reliance on Commonwealth v. Byers, 650 A.2d
468, 471 (Pa. Super. 1994) is unavailing. Cf. Appellant’s Brief at 14 (claiming
Byers “is controlling”). Byers is not controlling. In Byers, this Court
reversed the appellant’s DUI conviction, and held that “a defendant is not in
actual physical control of a vehicle merely because the vehicle has been
started.” Byers, 650 A.2d at 471. The Supreme Court abrogated the Byers
decision in Wolen. Justice Castille observed:
The Byers Court reasoned that penalizing a person for “sleeping
it off” with the engine running for a purpose other than driving the
vehicle (for example, to provide heat, operate the radio or power
a car phone) would defeat this laudable purpose [of not driving
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impaired].
However, nowhere in the statute is there a requirement that the
fact-finder should consider whether or not one in actual physical
control of a vehicle and under the influence of alcohol or controlled
substances poses a threat to public safety. The legislature has
reasonably determined that one driving a motor vehicle on the
public streets and highways of the Commonwealth while under the
influence of alcohol or controlled substances constitutes a threat
to public safety per se, even if there are no other members of the
public immediately endangered. While it may be laudable that one
who realizes that he is incapable of safe driving pulls over to “sleep
it off,” the legislature has made no exception to the reach of the
statute to such individuals. Accordingly, such a person’s threat to
public safety is not a relevant consideration under the drunk
driving statutes.
Wolen, 685 A.2d at 1386 n.4.
For the above reasons, Appellant’s challenge to the sufficiency of the
evidence does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date2/17/2022
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