Com. v. Muinde, N.

J-S33026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NYIVA K. MUINDE :
:
Appellant : No. 1626 EDA 2017
Appeal from the Judgment of Sentence Entered April 13, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007454-2015
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 26, 2018
Nyiva Muinde appeals from the judgment of sentence entered on April
13, 2017, after the trial court found her guilty of driving under the influence
of alcohol or controlled substance (“DUI”).1 Muinde contends that there was
insufficient evidence to support the trial court’s guilty verdict. We affirm.
The following evidence was presented at trial. On October 11, 2015,
Officer Michael Golden was working for the Eddystone Borough Police
Department. N.T., Trial, 4/13/17, at 7-8. By 2015, Officer Golden had eight
years of experience as a police officer, ten years of experience as a part-time
Emergency Medical Technician (“EMT”), and five years of experience as a Red
Cross instructor in emergency medical services. Id. While on patrol on October
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1).
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11, 2015, at around 11:20 p.m., he noticed a gray Honda sedan in a
McDonald’s parking lot. Id. at 8-9. Traffic passes through the lot in one
direction only. Id. at 9. The vehicle was parked across two parking spaces and
was facing against the flow of traffic. Id. The operator of the vehicle, Muinde,
was slumped over the steering wheel, with her head almost touching the
steering wheel. Id. at 9. It looked to Officer Golden as though she was
sleeping. Id. The vehicle was running with the transmission in “drive,” the
headlights on, and the radio playing very loudly. Id. at 18.
Officer Golden approached the vehicle and tried to wake Muinde up by
first announcing himself and then reaching through the partially opened
window to shake her. Id. at 9. Muinde abruptly awakened and told Officer
Golden that she was going home. Id. Officer Golden asked Muinde to place
the vehicle in “park.” Id. Muinde complied, and Officer Golden asked her
multiple times to turn the radio down. Id. at 10. Muinde in response “would
lean up almost like she was going to turn the radio down but then she would
put her hand back down.” Id. She tried again but still did not turn the radio
down. Id. Officer Golden asked Muinde for her identification and proof of
insurance, which she fumbled to find for several minutes. Id. Officer Golden
also detected an odor of alcohol coming from the vehicle. Id.
Based on his observations of Muinde, Officer Golden asked Muinde to
get out of her vehicle, on suspicion of driving under the influence. Id.
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Lieutenant Pretti2 arrived on scene to conduct two field sobriety tests. Id. at
11. Muinde was asked to perform only two sobriety tests because she had a
cast on her foot. Id. at 13. She failed both tests. Id. at 14-16. Lieutenant
Pretti asked Muinde to perform the ABC’s test and instructed her to say the
alphabet starting with the letter G. Id. at 22. Muinde was “unable to state
from letter G to H and then J.” Id. at 15. Additionally, she continually asked
Officer Golden, “What letter again?” Id. Next, Lieutenant Pretti asked Muinde
to perform the fingertip test, in which she was to put her hand out and count
from one to five while touching her fingertips with her thumb. Id. at 15-16.
During this test, Muinde “kept asking [Officer Golden] to repeat the test and
would not touch her fingers in the order that was told.” Id. at 16.
Officer Golden also attempted to administer a portable breath test. Id.
However, Muinde was not able to perform this test either. Officer Golden
explained how a portable breath test works and why Muinde was unable to
perform the test:
Q: . . . What do you have to do to pass that test or to
administer that test?
A: You have to breathe into the tube for it to register.
[Muinde] was instructed [to] breathe in the machine like you’re
blowing up a balloon and she refused to do so and she kept asking
how do you blow up a balloon.
Q: And is that ---
A: She would bite down --- I’m sorry.
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2 Lieutenant Pretti’s first name does not appear in the record.
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Q: I’m sorry. Go ahead.
A: She would bite down on the straw. She would suck in
when she was told to breathe out.
Id. at 16-17.
Muinde admitted to Officer Golden that she had drunk one beer and he
found one unopened bottle of beer in her purse. Id. at 13-14. Overall, Officer
Golden observed that Muinde had a strong odor of alcohol on her breath, her
eyes were bloodshot and glassy, her speech was slurred, her pupils were
constricted, and she was uncooperative. Id. Based on his observations, Officer
Golden concluded that Muinde was not capable of operating the vehicle. Id.
at 19.
Muinde testified that she was a Type 1 diabetic and when her sugar level
gets too high it causes her to go into a comatose-like state. Id. at 28, 30. She
testified that she was parked in the McDonald’s parking lot because she could
feel herself having symptoms of high-sugar level. Id. at 30-31. She did not
recall when Officer Golden approached her vehicle but testified that she was
having a diabetic attack when she was speaking with Officer Golden. Id. at
31. She also testified that she performed the field sobriety tests satisfactorily.
Id. at 33. Officer Golden testified that he did not attribute any of his
observations of Muinde to her diabetes based on his experience as an EMT
and working for Red Cross. Id. at 23.
The trial court found Muinde guilty of the above charge and sentenced
her to five days to six months’ incarceration. She was ordered to pay a $300
fine and $100 in court costs, to complete a safe driving class program, and to
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undergo a prescreening evaluation for DUI offenders, as well as drug and
alcohol evaluations. This timely appeal followed.
Muinde presents one issue for our review:
I. Whether the evidence was insufficient to support the
learned trial court’s verdict of guilty of the charge of driving
under the influence of alcohol because the Commonwealth
did not prove beyond a reasonable doubt that [Muinde] did
drive, operate[,] or [was] in actual physical control of the
movement of a vehicle after imbibing a sufficient amount of
alcohol such that [Muinde] was rendered incapable of safely
driving, operating[,] or being in actual physical control of
the movement of [Muinde’s] vehicle?
Muinde’s Br. at 6 (suggested answer omitted).
Because Muinde raises a challenge to the sufficiency of the evidence,
our standard of review “requires that we evaluate the record ‘in the light most
favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.’” Commonwealth v.
Rahman, 75 A.3d 497, 500 (Pa.Super. 2013) (quoting Commonwealth v.
Widmer, 744 A.2d 745, 751 (Pa. 2000)). “Evidence will be deemed sufficient
to support the verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a reasonable
doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d 1029, 1032
(Pa.Super. 2005)).
To support a conviction under Section 3802(a)(1), the Commonwealth
must prove “the accused was driving, operating, or in actual physical control
of the movement of a vehicle during the time when he or she was rendered
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incapable of safely doing so due to the consumption of alcohol.”
Commonwealth v. Teems, 74 A.3d 142, 145 (Pa.Super. 2013) (quoting
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009)). The type of
evidence that may satisfy this burden includes but is not limited to: “the
offender’s actions and behavior, including manner of driving and ability to pass
field sobriety tests; demeanor, including toward the investigating officer;
physical appearance, particularly bloodshot eyes and other physical signs of
intoxication; odor of alcohol, and slurred speech.” Segida, 985 A.2d at 879.
Muinde contends that the Commonwealth’s evidence regarding her
actual physical control of the vehicle was limited to “a sleeping driver with her
car in park.” Muinde’s Br. at 12. Muinde claims “the record does not represent
that [Muinde’s] vehicle was running” or contain “evidence of any lights on the
car that were illuminated.” Id.
This is a misrepresentation of the facts of this case.3 Contrary to
Muinde’s assertions, Officer Golden’s trial testimony clearly reflects that
Muinde’s vehicle was in “drive,” not “park” and that the officer asked her to
place it in “park.” N.T., Trial, 4/13/17, at 18. Additionally, there was evidence
that Muinde’s vehicle was running and that the headlights were on. Id. Thus,
the record supports the trial court’s conclusion that “the Commonwealth
proved the first element by eliciting uncontroverted testimony from Officer
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3 Muinde also cites old case law, Commonwealth v. Byers, 650 A.2d 468(Pa.Super. 1994), contending that it controls in this case. See Muinde’s Br. at
14. Our Supreme Court abrogated Byers in Commonwealth v. Wolen, 685
A.2d 1384, 1386 n.4 (Pa. 1996).
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Golden that he encountered [Muinde] seated in the driver’s seat of her vehicle
with the engine running and in gear.” Trial Court Opinion, filed 1/24/18, at 2;
see Commonwealth v. Williams, 871 A.2d 254, 261 (Pa.Super. 2005)
(holding that evidence was sufficient to prove actual physical control of vehicle
where defendant was found in his car at 4 a.m., with his head on steering
wheel, headlights on, radio on, engine running, and vehicle parked diagonally
across two parking spots).
Next, Muinde contends that the “impairment evidence offered by the
Commonwealth [was] weak and boilerplate.” Muinde’s Br. at 15. Muinde
claims that Officer Golden’s use of “magic words” such as glassy eyes and
slurred speech, and her failure of two field sobriety tests was insufficient to
support Muinde’s conviction, where Muinde “had been sleeping for an
unknown period of time and her testimony about the onset of diabetic
symptoms went unchallenged.” Id. This argument might be correct if we were
to look at only a portion of the trial record. However, we must look at the
record as a whole and consider the evidence that the trial court actually
received. See Commonwealth v. Rodriguez, 673 A.2d 962, 965 (Pa.Super.
1996) (concluding that when appellate court is presented with challenge to
sufficiency of evidence, it must evaluate entire trial record and consider all
evidence actually received).
When we look at the whole record, the evidence was plainly sufficient.
While there was no testimony presented to rebut Muinde’s testimony that she
had diabetes, the trial court found Muinde’s testimony that she was having a
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diabetic attack not credible. Trial Court Opinion, filed 1/24/18, at 3. Instead,
the trial court found that the Commonwealth “presented overwhelming
evidence that [Muinde’s] intoxicated state was created by her consumption of
alcohol, and that, as a result, she was incapable of safely operating the vehicle
which she controlled.” Id. The trial court found that Muinde’s impairment was
evidenced by Officer Golden’s observations of Muinde’s glassy, bloodshot
eyes; her slurred speech; the strong odor of alcohol on her breath; her vehicle
being parked the wrong way; her uncooperative demeanor; and her failing
both field sobriety tests. Id. Therefore, on this record, we cannot say that
there was insufficient evidence to support the trial court’s guilty verdict. See
Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa.Super. 2000) (concluding
that evidence of defendant’s glassy, bloodshot eyes, odor of alcohol, difficulty
walking, and failed field sobriety tests was sufficient to sustain conviction for
DUI).
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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